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Larry D. Vaught, Judge.
This is an appeal from the Desha County Circuit Court’s judgment in the amount of $9,419.12 for appellee Smith Steel, Inc., against Claudia Clark and appellant Eddie Reed. Ms. Clark has not appealed from the judgment entered against her. Mr. Reed argues that the circuit judge, sitting as the finder of fact, erred in entering judgment against him and in awarding appellee its attorney’s fees. We disagree.
Appellee manufactures and erects metal buildings and their components. Ms. Clark was employed by appellee as a bookkeeper and office administrator from 1992 to early 1997. During most of that time, she lived with appellant. While Ms. Clark was employed by appellee, appellant entered into three contracts with appellee for the erection of steel buildings. Contract 96-40, dated March 27, 1996, provided that appellee would build a farm shop for appellant. Ms. Clark signed this contract as the buyer, in her capacity as secretary for appellant’s farm. On November 18, 1996, the parties entered into Contract 96-112, which provided that appellee would build appellant a metal garage. The parties entered into Contract 96-111 on November 19, 1996, for appellee’s construction of a residence. Ms. Clark was heavily involved in all three projects. According to appellee, Ms. Clark acted as appellant’s agent in the building process. Appellant, however, denies that she acted in any capacity other than as appellee’s agent. After the parties entered into the contracts, Ms. Clark and appellant separated. However, Ms. Clark continued to work on the construction projects. Appellee became concerned about Ms. Clark’s job performance, and in early 1997, Ms. Clark left its employ. Appel-lee learned that approximately $15,000 in cash was missing from the business, and as a result, Ms. Clark later pled guilty to felony theft of property. Appellee also audited its accounts with appellant and concluded that appellant had received a substantial number of items for which he had not been billed during the construction of the three buildings.
Appellee then instituted this action against appellant and Ms. Clark, asserting claims based in contract, civil conspiracy, and quantum meruit. At trial, appellant was granted a directed verdict on the civil conspiracy claim. The circuit judge made the following findings of fact:
There is no doubt in the Court’s mind on the proof that was presented in this case that Claudia Clark was Eddie Reed’s agent for the purpose of building these structures and contracting regarding the construction projects including the farm shop, house, and garage. It so happened, that she was also an agent of Smith Steel at the same time. Based on Restatement of Agency, Section 424, the Court finds that under the circumstances proven in this case, that Smith Steel is entitled to recover the value of items sold and furnished to Eddie Reed by Smith Steel and Claudia Clark at too low a price, from Eddie Reed. Although it has not been proven that Eddie Reed knew what Claudia Clark was doing under the facts and circumstances in this case, a person of reasonable diligence and inquiry should have known what she was doing and Mr. Reed had accepted the benefits of what she did. He is responsible for paying for them.
The circuit judge found that appellant owed appellee $3,787 for the residence under Contract 96-111. From the contract’s base price of $13,286, he subtracted the unused labor cost of $2,400, added $600 for the use of appellee’s equipment, added $1,075 for extra panels ordered by Ms. Clark that were not billed to appellant, added $1,316 for material that was installed at a heavier gauge than originally contemplated, and added $96 for a better grade of insulation. From the total of $12,973, the circuit judge subtracted appellant’s payment of $9,186, leaving a balance of $3,787.
For the garage, Contract 96-112, the circuit judge found that appellant owed appellee $1,320. From the contract’s base price of $4,089, he subtracted $492 for an industrial overhead door that was not installed, added $564 for a residential door that was installed, and added $1,008 for additional roof and ridge material. From the total of $5,169, he subtracted appellant’s payment of $3,849, leaving a balance of $1,320.
The circuit judge denied appellee’s claim of $598 for doors and skylights in the farm shop, Contract 96-40, because appellee did not prove that they were installed. Under the heading “Miscellaneous Items,” he awarded appellee $2,511.76 for additional farm shop items, stating:
The purchase orders and tickets on these items are sufficiently related in time, color, and identity and method of operation to the farm shop project that Mr. Reed had going about this time that the Court finds they should be added to the judgment. In all likelihood they are in the farm shop and the Court finds that judgment should be granted for these items.
Under the “Miscellaneous Items” heading, the circuit judge awarded appellee $1,800.36 for additional insulation covered by a purchase order, signed by Ms. Clark, that was assigned to the house and garage contracts. The circuit judge found that these items were never included in a change order but that they were “evidently supplied” to the jobs. The circuit judge denied appel-lee’s claim for trim screws and certain reject panels.
The circuit judge entered judgment for appellee in the amount of $9,419.12 against appellant and Ms. Clark, jointly and severally. He also awarded appellee costs of $125 and attorney’s fees of $6,000.
Claudia Clark’s Agency for Appellant
Appellant first argues that the circuit judge’s finding that Ms. Clark acted as his agent is clearly against the preponderance of the evidence. The burden was on appellee to prove the existence of the agency relationship between Ms. Clark and appellant. E.P. Dobson, Inc. v. Richard, 17 Ark. App. 155, 705 S.W.2d 893 (1986). The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents to so act. Undem v. First Nat’l Bank, 46 Ark. App. 158, 879 S.W.2d 451 (1994). The two essential elements of an agency relationship are (1) that an agent have the authority to act for the principal, and (2) that the agent act on the principal’s behalf and be subject to the principal’s control. Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994).
If the facts are in dispute, agency is a question of fact to be determined by the finder of fact. E.P. Dobson, Inc. v. Richard, supra. Agency can be proved by circumstantial evidence, if the facts and circumstances introduced into evidence are sufficient to induce in the mind of the finder of fact the belief that the relation did exist and that the agent was acting for the principal in the transaction involved. Id. The law makes no distinction between direct evidence of a fact and circumstances from which a fact can be inferred. Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992). Mere relationship or family ties, unaccompanied by any other facts or circumstances, will not justify an inference of agency, but such relationship is entitled to great weight, when considered with other circumstances, as tending to establish the fact of agency. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987); Braley v. Arkhola Sand & Gravel Co., 203 Ark. 894, 159 S.W.2d 449 (1942).
Appellant testified at trial that Ms. Clark was not acting on his behalf. However, the circuit judge did not believe him, nor was he required to do so. See Leinen v. Arkansas Dep’t of Human Servs., 47 Ark. App. 156, 886 S.W.2d 895 (1994). On appellate review of a trial judge’s decision regarding agency, we must give due regard to his opportunity to judge the credibility of the witnesses, and we will not set aside his findings unless they are clearly against the preponderance of the evidence. E.P. Dobson, Inc. v. Richard, supra.
We hold that appellee did establish that Ms. Clark acted as appellant’s agent in constructing these buildings. Ernest Smith, appellee’s president, testified that appellant had admitted to him that he had assigned Ms. Clark to manage the project. Additionally, appellee introduced testimony and exhibits demonstrating that Ms. Clark had, in managing the project, incurred debts on appellant’s behalf for items that he accepted; that Ms. Clark had hired appellee’s erection crew to work for appellant on a non-work day; that Ms. Clark had frequently supervised the projects at the construction sites; and that Ms. Clark had dealt with many contractors and suppliers regarding all aspects of the construction on appellant’s behalf. Further, during much of this time, appellant and Ms. Clark lived together. The circuit judge’s finding that Ms. Clark was appellant’s agent is not clearly against the preponderance of the evidence.
Appellant’s Responsibility for Claudia Clark’s Actions
In his second point, appellant contends that the circuit judge erred in basing his decision on the Restatement (Second) of Agency § 424 (1957). That section provides:
Unless otherwise agreed, an agent employed to buy or to sell is subject to a duty to the principal, within the limits set by the principal’s directions, to be loyal to the principal’s interests and to use reasonable care to obtain terms which best satisfy the manifested purposes of the principal.
Comment g. to that section states:
Sale or purchase at improper price. The violation of duty by the agent may be selling to a third person at too low a price something which he is otherwise authorized to sell. In this case, the principal is entitled to recover the thing in specie or its value from the purchaser, if the agent had no power to bind the principal. . . .
.... If the principal recovers back the property from the transferee, or obtains compensation from him, the damages against the agent are diminished pro tanto.
Appellant argues that this section addresses only the duty of the agent to the seller/principal, and not the liability of one principal to another. We agree. Although the comment recognizes a purchaser’s duty to pay for goods obtained at too low a price, we do not believe that section 424, in and of itself, provides the basis for appellant’s liability to appellee. As discussed below, however, the circuit judge reached the correct result. We will affirm the trial court’s ruling if it is correct for any reason. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989).
Appellant also argues that he cannot be held liable for Ms. Clark’s actions in the absence of his knowledge of them. We disagree. It is a well established rule that a principal cannot ratify a portion of an unauthorized transaction, and not ratify the whole of it. Kelley v. Sparks, 193 Ark. 811, 102 S.W.2d 838 (1937). When a person acts for another, who accepts the fruits of her efforts, the latter must be deemed to have adopted the methods employed; he may not, even though innocent, receive the benefits and at the same time disclaim responsibility for the measures by which they were acquired. Id.
Taking a different approach, appellant asserts that, as a matter of law, Ms. Clark could not have been the agent of two principals and cites Fennell v. Ross, 289 Ark. 374, 711 S.W.2d 793 (1986), which involved the sale of real estate. In that case, the supreme court stated:
The law of agency contemplates that an agent may serve only one principal with respect to any one transaction. See Rest. Agency (Second) §§ 387, 391, 394 (1957). We agree with the authorities and authors cited aboye who have reached the conclusion that in an MLS [multiple listing service] transaction like this one the selling agent is a subagent of the sellers.
289 Ark. at 379, 711 S.W.2d at 796. However, in Whitten v. Harold Austin Construction, Inc., 55 Ark. App. 409, 935 S.W.2d 579 (1996), we held that the holding in Fennell v. Ross was limited to MLS cases and noted that selling agents in such cases are constrained by their legal duty to the seller and may only serve one principal per transaction.
Further, the supreme court recognized the dual-agency doctrine in United States Fire Insurance Co. v. Montgomery, 256 Ark. 1047, 511 S.W.2d 659 (1974), and in City National Bank v. McCann, 193 Ark. 967, 106 S.W.2d 195 (1937). That doctrine provides that an agent may represent both parties to a transaction with their knowledge and consent; however, without such knowledge and consent, an agent’s contracts relating to the transaction between his principals are voidable at the instance of either who may feel aggrieved, even though the principals are not in fact injured or the agent intends no wrong, or the other party acts in good faith. Id. In Georgia Home Insurance Co. v. Bennett, 134 Ark. 52, 60, 203 S.W. 279, 282 (1918), the supreme court explained:
The principle that one can not serve two masters whose interests are antagonistic applies unless the authority so to do is given expressly or by necessary implication; otherwise, where the interests are conflicting, the agent acts only for the principal whose interests he promotes or in whose behalf he acts ....
See also 3 Am. Jur. 2d Agency §§ 241-42 (1986).
Therefore, appellant is wrong in asserting that an agent cannot, as a matter of law, represent two principals. The evidence soundly demonstrates that Ms. Clark was promoting appellant’s, and not appellee’s, interests in obtaining and failing to charge appellant for the additional items that he received during the construction of the buildings. Even though he may not have known of her wrongful acts, he accepted the benefits of those acts and was properly held to be responsible for them.
Delivery of the Materials
Appellant argues in his third point that appellee failed to establish that the materials were actually delivered to his property. The circuit judge’s determination of this fact question will not be reversed unless it is clearly against the preponderance of the evidence. E.P. Dobson, Inc. v. Richard, supra. Appellee concedes that, for the most part, its evidence that such materials were delivered to appellant was circumstantial but argues that its evidence adequately supports the trial judge’s findings. We agree. Circumstantial evidence does not directly prove the existence of a fact, but gives rise to a logical inference that it exists. Ford Motor Co. v. Fish, 233 Ark. 634, 346 S.W.2d 469 (1961). A fact is established by circumstantial evidence when its existence can be fairly and reasonably inferred from other facts proved in the case. Id. A well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence and frequently outweighs opposing direct testimony; any issue of fact in controversy can be estab lished by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. Pekin Wood Prods. Co. v. Mason, 185 Ark. 166, 46 S.W.2d 798 (1932).
Ernest Smith testified that, when a customer changes his mind after signing a contract, a change order is prepared to add or delete the materials. He said that, after the customer approves the change order, the contract is considered to be modified. Mr. Smith stated that it was Ms. Clark’s responsibility to see that all items that were delivered to the customer were billed to him.
Karen Butcher, Ms. Clark’s replacement as appellee’s bookkeeper, testified that, when she audited appellant’s account, she found many items that appellee had clearly purchased for appellant’s projects for which no change order was made and for which appellant was not billed. In her testimony, she thoroughly discussed each additional item claimed by appellee, and exhibits that supported her testimony were introduced into evidence. Ms. Butcher also testified that she saw Ms. Clark borrow one of appel-lee’s trailers, have it loaded with merchandise, and leave with it while stating that she was going to the house site.
Additionally, the circuit judge’s finding that certain items were “[i]n all likelihood ... in the farm shop” is adequately supported by the circumstantial evidence. He stated: “The purchase orders and tickets on these items are sufficiently related in time, color, and identity and method of operation to the farm shop project that Mr. Reed had going about this time. . . .” Appellee presented evidence that, in purchase order number 67843, Ms. Clark ordered some reject panels, in the same color as that used by appellant, for $2,511.76. Ms. Butcher testified that, although these panels were not billed to anyone by appellee, they were missing from appellee’s shop. She said that the panels had apparently left appellee’s premises without being paid for during the time that appellant’s project was under way.
We hold that the circuit judge’s finding that appellant received these materials is not clearly against the preponderance of the evidence.
Attorney’s Fees
Appellant argues in his fourth point on appeal that the circuit judge erred in awarding attorney’s fees to appellee on the basis of Ark. Code Ann. § 16-22-308 (Repl. 1999). That statute provides for a reasonable attorney’s fee in certain civil actions. It states:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
This statute does not provide for the recovery of attorney’s fees in tort actions. Mercedes-Benz Credit Corp. v. Morgan, 312 Ark. 225, 850 S.W.2d 297 (1993). Where both contract and tort claims are advanced, an award of attorney’s fees to the prevailing party is proper only when the action is based primarily in contract. Meyer v. Riverdale Harbor Mun. Prop. Owners Improvement Dist. No. 1, 58 Ark. App. 91, 947 S.W.2d 20 (1997). Appellant argues that the circuit judge based his award in tort because of Ms. Clark’s tortious behavior. We disagree. The trial judge directed a verdict against appellee on its civil conspiracy claim, leaving appellee’s contract and quantum meruit claims.
Appellee and appellant had three contracts for the construction of metal buildings, and the circuit judge found that the additional items for which he held appellant responsible were provided as additions to those contracts. Appellee presented testimony that the normal procedure for making an addition to a contract included the completion of a change order, which would be added to the total price of the contract; thus, the contract would be modified. It is logical to conclude that, as appellant’s agent, Ms. Clark made modifications to the contracts for items that should have been billed to appellant. Appellee proved that appellant received these materials; therefore, appellant owes appellee for them on the basis of the modified contracts. Accordingly, the circuit judge properly awarded attorney’s fees to appellee.
Affirmed.
Bird and Roaf, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant Amy Reynolds appeals rer conviction for driving while intoxicated asserting that the circuit court erred in denying her motion in limine to exclude the results of her breath test under the provision of Ark. Code Ann. section 5-65-204(e)(l) (Repl. 2005). She argues that the results of the breathalyzer should have been excluded because the statement of rights read to her by the law-enforcement officers did not specifically state that she had the right to have a person of her choice administer an additional test. We find no error and affirm.
that: Arkansas Code Annotated section 5-65-204(e)(l) provides
(e)(1) The person tested may have a physician or a qualified technician, registered nurse, or other qualified person of his or her 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 of this right.
(3) The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test shall preclude the admission of evidence relating to the test taken at the direction of a law enforcement officer.
The initial test result may be admitted into evidence if there was substantial compliance with the statute. Hegler v. State, 286 Ark. 215, 691 S.W.2d 129 (1985); see also Daniels v. State, 84 Ark. App. 263, 139 S.W.3d 140 (2003). When a defendant moves to exclude 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. McEntire v. State, 305 Ark. 470, 808 S.W.2d 762 (1991). Substantial compliance with the statutory provision (e) (3) is all that is required. Kay v. State, 46 Ark. App. 82, 877 S.W.2d 957 (1994). Whether the assistance provided was reasonable under the circumstances is ordinarily a fact question for the trial court to decide. Id.
The challenged provision of the statement of rights read to, and signed by, appellant states:
If you disagree with the results of this test, you may request another chemical test of your choice and I will assist you in obtaining it. The additional test may be of either your breath, blood or urine administered by a qualified person such as a doctor, registered nurse, or technician other than a law enforcement officer.
Although the notice to appellant by the officers that she had the right to have a subsequent or different test was not as complete as it could have been, we do not find error in allowing the test result to be introduced. See Spicer v. State, 284 Ark. 315, 681 S.W.2d 369 (1984) (allowing introduction of breath alcohol test where accused was notified of right to different type of test but notice did not mention person of choice for administration of test). Appellant was notified she could request a test of a different type, but she made no such request. Nothing in our case law requires the officer to structure proposals or options for the arrestee to pursue. We are not here addressing a situation in which an accused requests an opportunity to call her own doctor or other qualified person and have her doctor or other qualified person come to the jail or other place of incarceration and take a sample of blood. While there may have been other courses of action that would have been reasonable for the officer to assist appellant in pursuing had she requested, appellant made no other requests for assistance or proposed other options. Under these circumstances, we do not believe the notice precluded appellant from requesting another breathalyzer test. Nor do we find that the officers could have reasonably assisted her but did not.
Accordingly, we affirm.
Gladwin and Robbins, JJ., agree.
The repetition of the prepositional phrase “of your choice” to modify “a qualified person” would have alleviated any possible confusion as to whether appellant had the right to have a person of her choice administer an additional test. | [
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Per Curiam.
This appeal is from a partial summary judgment entered in favor of appellee Jacqueline Murray on her claim for usury. The court found that the contract for sale of real property that she entered into with appellant was usurious and awarded her $58,690.90 in interest and $3,000 in attorney’s fees. Because the judgment from which appellant appeals does not resolve all the claims brought in this lawsuit, we dismiss the appeal.
In June 2001, the parties entered into a contract for appellee to purchase a home financed by the builder, appellant Jerry Brasfield. Appellee filed suit against appellant in June 2003, alleging that the contract was usurious and seeking an order voiding the contract as to the unpaid interest and for her attorney’s fees. Appellee also alleged breach of contract and sought damages for work that was not completed on her home and repair of appellant’s “shoddy construction.” Appellant filed a general denial to the complaint and, in February 2004, filed a separate complaint against appellee for foreclosure and termination of their contract. The two lawsuits were consolidated in March 2005. The trial court granted appellee a partial summary judgment on her claim for usury, and it is this judgment that appellant appeals, contending that the trial court erred in granting appellee a partial summary judgment, in refusing to estop appellee from raising the defense of usury, and in its calculation of interest due the appellee and its award of attorney’s fees. Appellant states that the remaining issues involving foreclosure, quiet title, and termination of the land sale contract remain unresolved. From our review of the record, it also appears that appellee’s claims for breach of contract and damages for uncompleted work remain pending.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure - Civil provides that an appeal may be taken only from a final judgment or decree entered by the trial court. The question of whether an order is final and subject to appeal is a jurisdictional question that this court will raise on its own. Moses v. Hanna’s Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003). Arkansas Rule of Civil Procedure 54(b) provides that, when more than one claim for relief is presented in an action or when multiple parties are involved, an order that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not a final, appealable order. See Hambay v. Williams, 335 Ark. 352, 980 S.W.2d 263 (1998); South County, Inc. v. First W. Loan Co., 311 Ark. 501, 845 S.W.2d 3 (1993).
Rule 54(b) allows a trial court, when it finds no just reason for delaying an appeal, to direct entry of a final judgment as to fewer than all the claims or parties by executing a certification of final judgment as it appears in Rule 54(b)(1). However, absent this required certification, any judgment, order, or other form of decision that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action. See Jackson v. Delis, 76 Ark. App. 436, 67 S.W.3d 596 (2002). No such certification was made in this case.
Accordingly, we do not have jurisdiction to decide this case, and the appeal is dismissed without prejudice.
Dismissed. | [
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Sam Bird, Judge.
Appellants Pest Management, Inc., Elaine Goode, and Grant Goode (collectively, Pest Management) appeal from an order of the Faulkner County Circuit Court denying their motion to arbitrate claims asserted against them by appellees Alfred Langer and James Stalnaker (collectively, Langer). The trial court found that, although the parties’ agreement specified that any dispute would be arbitrated under the provisions of the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 through 16 (2000 & Supp. Ill 2003), Langer’s claims sounded in tort and were not subject to arbitration under the Arkansas Uniform Arbitration Act (AUAA), Ark. Code Ann. §§ 16-108-201 through 16-108-224 (Repl. 2006). We reverse and remand.
On September 17, 2003, Langer purchased a home located in Conway, Arkansas. Before the closing, Pest Management inspected the home and issued a clearance letter dated September 15, 2003, stating that it had inspected the home and reporting its findings. Neither the clearance letter nor a graph attached to the clearance letter indicated any current termite damage, any past damage, or any other problems with the home. As part of the closing, Langer and Pest Management entered into a contract for Pest Management to inspect the premises and to provide for annual treatment. Elaine Goode signed the contract on September 12, 2003, on behalf of Pest Management, and Langer signed the contract on September 17. The contract contained a section entitled “ARBITRATION,” which provided:
Customer and Pest Management agree that any claim, dispute or controversy between them or against the other or the employees, agents or assigns of the other, and any claim arising from or relating to this Contract or the relationships which result from the Contract, no matter against whom made, including the applicability of this arbitration clause and the validity of the entire Contract, shall be resolved by neutral binding arbitration by the National Arbitration Forum... under the Code of Procedure of the National Arbitration Forum in effect at the time the claim is filed.... Each party shall be responsible for paying its own fees, costs and expenses and the arbitration fees as designed by the Code of Procedure. The decision of the arbitrator shall be a final and binding resolution of the disagreement that may be entered as a judgment by a court of competent jurisdiction. The arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16. Each party consents to the personal jurisdiction and venue of the courts in which the property is located and the courts of the State of Arkansas and the U.S. District Court for the Eastern District of Arkansas. Judgment upon the award may be entered in any court having jurisdiction. Neither party shall sue the other party with respect to any matter in dispute between the parties other than for enforcement of this arbitration provision or of the arbitrator’s decision, and a party violating this provision shall pay the other party’s costs, including but not limited to attorney’s fees, with respect to such suit and the arbitration award shall so provide. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE ANY DISPUTES DECIDED THROUGH ARBITRATION.
The contract specifically provides that the arbitration provision and the inspection graph are part of the contract.
On March 1, 2005, Langer filed suit, later amended, against Pest Management and Daryl Little, in his official capacity as director of the Arkansas State Plant Board, alleging that Pest Management was negligent in the conduct of its inspection. The complaint alleged that the Plant Board conducted an inspection of Langer’s home and found several problems that Pest Management had to correct. The complaint also alleged that Pest Management violated the Arkansas Pest Control Act. In its first amended answer, Pest Management denied the allegations of the complaint and asserted that the dispute was subject to arbitration under the FAA. Pest Management also filed a separate motion to dismiss or, in the alternative, to compel arbitration.
At the hearing on the motion, there was argument about whether Langer’s cause of action sounded in tort or in contract because tort claims would not be subject to arbitration under the AUAA. Langer argued further that the claims were not subject to arbitration because Pest Management’s negligence occurred prior to the execution of the termite contract. Pest Management’s position was that the original inspection was part and parcel of the termite contract and, therefore, Langer’s claim should be subject to arbitration.
The trial court issued a letter opinion in which it found that the supreme court’s decision in Terminix International Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996), was controlling. The court noted that, although application of the FAA was sought, the complaint’s allegations of a tort claim would not be subject to arbitration under the AUAA. In its written order, the trial court found that the termite contract expressly provided that the parties agreed to submit to binding arbitration, in accordance with and under the provisions of the FAA, of any claim, dispute, or controversy between them arising from or relating to the termite contract or the inspection of the property. The court also found that the causes of action alleged in Langer’s complaint sounded in tort, rather than in contract, and were not subject to arbitration under the AUAA and that the AUAA was not pre-empted by the FAA in the present case. The court also found that the arbitration clause of the parties’ termite contract did not control disputes relating to the performance of the inspection of Langer’s house or the reporting of its condition in the clearance letter, both occurring prior to the execution of the termite contract. Finally, the court concluded that the case law and statutory scheme in Arkansas did not compel the mandatory, binding arbitration sought by Pest Management in this case. The trial court accordingly denied the motion to compel arbitration. This appeal followed.
An order denying a motion to compel arbitration is an immediately appealable order. Ark. R. App. P. - Civ. 2(a)(12); IGF Ins. Co. v. Hat Creek P’ship, 349 Ark. 133, 76 S.W.3d 859 (2002). We review a circuit court’s order denying a motion to compel arbitration de novo on the record. IGF Ins., supra.
Pest Management raises one point on appeal — that the trial court erred in not compelling arbitration of Langer’s claims. Specifically, it contends that the FAA, rather than the AUAA, applies to this dispute and calls for arbitration between the parties. In arguing for the application of Arkansas law, Langer relies, as did the trial court, on the supreme court’s decision in Stabbs, supra. That case involved a suit against Terminix and others for fraud, deceit, and breach of a federal VA/HUD loan “contract” that arose from a faulty termite inspection and repair job. The supreme court held that tort claims were not subject to arbitration under the AUAA, “regardless of the language used in an arbitration agreement.” See Ark. Code Ann. § 16-108-201 (b) (2). Langer’s reliance on the phrase “regardless of the language used” in Stabbs is misplaced because that case involved only the AUAA. Here, the parties specifically agreed that the FAA would apply. Where the parties designate in the arbitration agreement which arbitration statute they wish to have control, the court should apply their choice. Geosurveys, Inc. v. State Nat’l Bank, 143 S.W.3d 220 (Tex. App. 2004); In re Van Blarcum, 19 S.W.3d 484 (Tex. App. 2000).
The FAA provides that a written provision in a contract evidencing a transaction involving commerce to arbitrate a controversy arising out of that contract is valid and enforceable “save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (2000). The FAA, instead of the AUAA, applies when the underlying dispute involves interstate commerce. Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999). Section 1 of the FAA defines “commerce” as “commerce among the several States. ...” 9 U.S.C. § 1 (2000). State and federal courts have concurrent jurisdiction to enforce an arbitration agreement pursuant to the terms of the FAA. Walton, supra.
Because the duty to arbitrate is a contractual obligation, we must first determine from the language of the arbitration agreement whether the parties intended to arbitrate the particular dispute in question. Walton, supra. In addressing whether a party has entered into an agreement to arbitrate under the FAA, courts are to apply general state law principles, giving due regard to the federal policy favoring arbitration. Volt Info. Sciences, Inc. v. Board of Trustees of the Leland Stanford Junior Univ., 489 U.S. 468 (1989). The same rules of construction and interpretation apply to arbitration agreements as apply to agreements generally. Neosho Constr. Co. v. Weaver-Bailey Contractors, 69 Ark. App. 137, 10 S.W.3d 463 (2000). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing in accordance with the plain meaning of the language employed. Id.
The arbitration clause in the present case is quite broad and provides that any claim, dispute or controversy between Langer and Pest Management and any claim arising from or relating to the contract or the relationships which result from the contract shall be subject to arbitration. Langer argues that their claims are not subject to arbitration because they arose prior to the signing of the termite contract that contains this arbitration clause. Though Langer contends that the arbitration clause does not apply to its claims, Pest Management contends that it does. The federal policy favoring arbitration requires that any doubts concerning the scope of arbitrable issues be resolved in favor of arbitration. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213 (1985); Walton, supra; Neosho Constr. Co., supra. Flowever, we do not decide whether the arbitration clause applies to Langer’s claims, inasmuch as any dispute over the applicability of the arbitration clause is itself made subject to arbitration, to-wit:
ARBITRATION. [Langer] and [Pest Management] agree that any ... dispute ... between them . .. including the applicability of this arbitration clause . . . shall be resolved by neutral binding arbitration.
Consequently, we must reverse and remand for arbitration the issue of whether this arbitration clause is applicable to Langer’s claims against Pest Management.
Langer also argues that the FAA does not apply because there is no evidence that this transaction involved interstate commerce. The FAA applies if the transaction involves “interstate commerce, even if the parties did not contemplate an interstate commerce connection.” Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 281 (1995); see also Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) (per curiam). The termite contract states that “it is being made pursuant to a transaction involving interstate commerce. . . .” This is, in effect, a stipulation that removes the requirement for proof of connections with interstate commerce. In Allied-Bruce, the Supreme Court held that the FAA applied to a similar termite protection agreement and required enforcement of its arbitration provision, stating that the language of section 2 of the FAA, making enforceable an arbitration provision in “a contract evidencing a transaction involving commerce,” is applicable “to the limits of Congress’ Commerce Clause power.”
The parties clearly and unambiguously agreed to arbitration under the FAA. We reverse and remand to the trial court for entry of an order compelling the parties to submit to arbitration the issue of the applicability of the arbitration clause to Langer’s claims against Pest Management.
Reversed and remanded.
This opinion is substituted for the opinion of our court in this appeal that was delivered on June 21, 2006. Langer’s petition for rehearing is denied.
Gladwin, Robbins, Glover, Neal and Roaf, JJ., agree.
To the extent that our decision in Hawks Enterprises, Inc. v. Andrews, 75 Ark. App. 372, 57 S.W.3d 778 (2001), can be read as precluding arbitration of tort claims under the FAA, it is erroneous. | [
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Terry Crabtree, Judge.
Appellee Phillip Cohen sued his former employer, appellant Continental Carbonic Products, for breach of contract for nonpayment of stock options after his employment terminated. The jury found in favor of Cohen. Continental appeals, contending that the trial court erred in failing to grant its motions for directed verdict and for judgment notwithstanding the verdict and that the trial court erred in admitting evidence to the effect that Continental could not demonstrate any financial harm as a result of Cohen’s employment with a competitor. We affirm.
Background
Continental manufactures and sells dry ice for use in many different applications. Although the manufacture of dry ice is its primary product line, Continental also sells blasting equipment for use in the cleaning of industrial equipment. In 1991, Cohen became employed by Continental as a salesman. In accepting this position, Cohen signed non-competition agreements with Continental and its subsidiary Dixie Carbonic, Inc. (Dixie). The relevant terms of these agreements had the effect of prohibiting Cohen from going to work for a competitor who sold competitive products within a seventy-five-mile radius of any Continental facility for a two-year period following termination of employment with Continental. On May 17, 2002, Cohen submitted his two-week notice, effectively resigning from Continental as of May 31, 2002. Pursuant to the express terms of the non-competition agreements, Cohen would be prohibited from going to work for a competitor through May 31, 2004.
During his employment with Continental, Cohen received certain stock options. Upon terminating his employment with Continental, Cohen exercised those options. On May 24, 2002, Cohen and Continental entered into a Stock Option Settlement Agreement (the option settlement) whereby the total value of the options was agreed upon, as well as the terms and conditions of the payout for the options. The option settlement contained the following language: “All future payments will be forfeited for any violations of the employee’s Confidentiality and Non-Compete Agreements.”
A few months out after leaving employment with Continental, Cohen was offered employment with Cold Jet, Inc., a competitor of Continental within the dry-ice industry. Cold Jet’s principal business was the manufacture and sale of dry-ice blasting equipment for use in industrial cleaning applications. Cold Jet also sold pelletized dry ice to its customers for use with the blasting equipment. Continental and Cold Jet also did extensive business with each other.
Cohen accepted the position at Cold Jet, but prior to doing so, he negotiated a limited release of his obligations to Continental. The release contained the following language: “[Continental and Dixie] agree to release Cohen from the Non-Compete Agreements for the sole purpose of allowing Cohen to sell dry ice blasting equipment manufactured by Cold Jet. . . . Other than for the foregoing limited release, the Non-Compete Agreements shall remain in full force and effect....” Cohen sold blasting equipment for Cold Jet until March 29, 2004, when he accepted a promotion to become Cold Jet’s vice president of customer-service relations. This position did not involve selling blasting equipment. The position had responsibility to supervise Cold Jet’s dry-ice sales staff, and Cohen received a commission on all sales of dry ice.
On May 17, 2004, Continental informed Cohen by letter that he had violated the terms of his non-competition agreement and the release and, therefore, had forfeited the remaining balance due under the terms of the option settlement. The reasons given were the very nature of Cohen’s position as vice president of customer-service relations and the few ice referrals received during Cohen’s tenure as a blasting equipment salesman. The letter also noted that the agreements between Cohen and Continental prohibited Cohen from arranging any dry-ice sales with any supplier except for Continental.
Cohen filed suit against Continental, alleging that it breached the option settlement agreement to pay Cohen the remaining $49,339.35 owed for his stock options. Continental denied the material allegations of the complaint and also pled that Cohen was in breach of the various agreements.
The Evidence
Phillip Cohen testified that he signed the non-competition agreements and understood them to mean that he could remain in the dry-ice business as long as he remained more than seventy-five miles from a Continental location. He was aware that the option settlement contained a provision that future payments would be forfeited if he violated the non-competition agreement. Cohen said that he understood that the release allowed him to sell equipment for Cold Jet and refer dry-ice sales to Continental. He also stated that, when he was selling blasting equipment for Cold Jet, he referred all customers who wanted dry ice to Continental, where Cold Jet obtained its dry ice, and denied that he sold or arranged the sale of dry ice for anyone other than Continental while employed at Cold Jet. He said that Continental wanted him to work for Cold Jet because he would be referring ice sales to Continental. According to Cohen, there was no Continental facility within seventy-five miles of his home. He said that he was paid like other salesmen, based on a formula including dry-ice sales.
In late March 2004, after Cold Jet acquired ownership of a competitor, Cohen was offered a promotion to vice president of customer-service relations and dealt with all aspects of customer service, including dry ice. He. was no longer involved in selling blasting equipment and was not calling on customers trying to sell ice. He said that, after his promotion, he trained a salesman to take over his territory and traveled to California to learn the operations of the newly acquired company. He denied making any sales of ice prior to the expiration of the non-competition agreement. Cohen’s compensation included percentages of certain company activities, including dry ice. He denied taking the promotion prior to March 2004.
Three Continental executives, Robert Wiesemann, Continental’s chief executive, John Funk, president, and Randy Spitz, vice president and chief financial officer, each testified that they understood the non-competition agreements to prohibit Cohen from working for any company if that other company had employees or a facility within seventy-five miles of a Continental facility, even if Cohen himself were not within that radius of a Continental facility. Wiesemann said that he was responsible for the forfeiture provision in the option settlement. None of the executives had any specific knowledge of any person to whom Cohen solicited the sale of ice or actually sold dry ice after his promotion. They also said that they did not have personal knowledge of any of Cohen’s actions between March 29, 2004, and May 31, 2004, that caused any specific damages or loss of sales to Continental. All three opined that Cohen’s taking the promotion itself was a violation of the non-competition agreement and release. They also said that Cohen could not be compensated based on dry-ice sales because that would be a breach of the non-competition agreement but admitted that there was no specific language in the release to that effect.
Gene Cooke, Cold Jet’s chief executive, stated his belief that, in executing the release, Cold Jet was not setting Cohen up to compete with Continental; instead, he believed that it would further the close relationship between the companies. He believed that Cohen’s sales efforts were going to support Continental’s distribution efforts in his territory. He said the offer of employment did not contemplate Cohen’s having responsibility for dry-ice sales. He stated that he was unsure whether there was an understanding that Cohen would refer all of Cold Jet’s dry-ice sales within his territory directly to Continental, adding that it would have made sense to do so because of the relationship between the companies. Once Continental began directly contacting Cold Jet’s clients, Cooke did not involve Cohen in formulating a response to preserve Cold Jet’s clients.
Cooke promoted Cohen to vice president of customer-service relations in March 2004 and said that, after the promotion, Cohen had supervisory authority over Pat Frank, the director of Cold Jet’s dry-ice sales. He added that, as a result of the promotion, Cohen was given a commission on dry-ice sales. Cooke said that he did not examine the release to determine whether Cohen would be in breach by accepting the promotion but that he called Robert Wiesemann at Continental to alert them to what Cold Jet was planning, though he did not discuss it as a possible violation of the release. He said that it never occurred to him that Cohen’s promotion might violate the non-competition agreements or the release. Cooke said that Cohen never attempted to sell or solicit dry-ice business for Cold Jet because Cold Jet had its own department for that activity.
Patrick Frank, a former Cold Jet employee, testified that he was responsible for Cold Jet’s dry-ice business. He said that he reported to Cohen after Cohen’s promotion to vice president of customer-service relations, which, according to Frank, occurred in January 2004. On cross-examination, Frank admitted that he never saw Cohen attempting to make dry-ice sales within seventy-five miles of a Continental facility.
At the close of Cohen’s case and again at the close of all of the evidence, Continental moved for a directed verdict on the basis that Cohen could not present a prima fade case for breach of contract because he himself breached the non-competition agreement. The trial court denied the motions.
As noted above, the jury returned a verdict in Cohen’s favor. The parties stipulated that Cohen’s damages were $53,840.69, and judgment was entered on the jury’s verdict. Thereafter, Continental filed a motion for judgment notwithstanding the verdict (JNOV) or new trial, alleging that the verdict was not supported by substantial evidence. That motion was denied, and Continental now appeals.
Arguments on Appeal
Continental’s first point is that the trial court erred in denying its motions for directed verdict or JNOV. Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Stewart Title Guar. Co. v. American Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005). Similarly, in reviewing the denial of a motion for JNOV, we will reverse only if there is no substantial evidence to support the jury’s verdict and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not this court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
Continental argues that Cohen failed to present a prima facie case for breach of contract because he himself breached the non-competition agreement by taking a promotion where he had oversight responsibility for Cold Jet’s dry-ice sales. As a general rule, the failure of one party to perform his contractual obligations releases the other party from his obligations. American Transp. Corp. v. Exchange Capital Corp., 84 Ark. App. 28, 129 S.W.3d 312 (2003). Whether a covenant not to compete has been materially breached is a factual, not a legal, issue. Abernathy v. Knych, 76 Ark. App. 127, 61 S.W.3d 207 (2001); see also DBA Enters, v. Findlay, 923 P.2d 298 (Colo. App. 1996).
The jury in this case was instructed that a material breach by one party excuses the performance of the other party and that a breach that is not material does not excuse the performance of the other party. We believe that there was sufficient evidence from which the jury could find that Cohen did not materially breach his agreements. Cohen and Gene Cooke both testified that Cohen did not make or solicit any sales of dry ice while at Cold Jet, other than through Continental. The Continental executives testified that they did not conduct an in-depth investigation into the matter and offered no specific proof of any sales made by Cohen during the two-month period after his promotion. Further, they could not identify the number of sales they missed or the amount of money Continental may have lost as a result of any breach by Cohen. This testimony, if believed, would tend to show that Continental received the benefit of its bargain, an influential circumstance in the determination of the materiality of a breach. TXO Prod. Corp. v. Page Farms, Inc., 287 Ark. 304, 698 S.W.2d 791 (1985); Vereen v. Hargrove, 80 Ark. App. 385, 96 S.W.3d 762 (2003).
Continental also argues that Cohen’s promotion itself violated the release because, after the promotion, Cohen was not solely selling blasting equipment. However, this was not the reason given Cohen in the letter declaring the forfeiture absolute. Further, it is contrary to the language of the agreements. The non-competition agreement prevents Cohen from working for a competitor selling dry ice within seventy-five miles of a Continental facility. The option settlement contains a forfeiture clause restating the prohibition on Cohen’s selling dry ice and providing that “any violation of such prohibition by Cohen shall result in Cohen’s forfeiture of his stock option balance. . . .” The release provides that Cohen could work for a competitor, just not selling dry ice. Therefore, the fact that Cohen received a promotion was not, by the plain language used, a material breach of the non-competition agreement.
In its second point, Continental argues that the trial court erred in admitting evidence to the effect that Continental could not show any financial harm as a result of Cohen’s employment with Cold Jet. Continental acknowledges that this point concerns whether Cohen materially breach the agreements and is interwoven with its first point. Therefore, we need not address this point separately.
Affirmed.
Hart and Glover, JJ., agree.
The complaint also included counts that Continental had converted the money belonging to Cohen and had breached its fiduciary duty to him. Finally, the complaint also sought punitive damages. Continental was granted partial summary judgment on these claims. Continental had also filed a counterclaim, alleging that Cohen had breached the non-competition agreements and sought damages for that breach but later moved to voluntarily dismiss its counterclaim. The trial court granted the motion. No issue regarding these matters is raised in this appeal. | [
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Terry Crabtree, Judge.
The White County Circuit Court revoked the probation of Dana Whitener and sentenced her to five years in the Arkansas Department of Correction. The court ordered that three years of the sentence be suspended, and that she be transferred to the Regional Correction Facility for twenty-four months to participate in the drug program there. On appeal appellant argues that there was insufficient evidence to sustain a finding that she inexcusably violated the terms of her probation, because the terms and conditions of her probation were not introduced into evidence. The State responds that because the argument was not raised below, it is not preserved for appeal. We agree and affirm.
In August 2002, appellant entered into a plea bargain with the prosecution in the White County Circuit Court. As part of the negotiated plea, she pled guilty to a violation of the Arkansas Hot Check Law. She was placed on supervised probation for three years and ordered to pay a fine of $1000, restitution of $1056.29, and court costs of $150. Pursuant to Ark. Code Ann. § 5-4-303 (Repl. 2006), if a court suspends imposition of sentence on a defendant or places him or her on probation, the court shall attach such conditions as are reasonably necessary to assist the defendant in leading a law-abiding life. The statute further provides that every suspension or probation will contain the express condition that the defendant not commit an offense punishable by imprisonment during the period of suspension or probation. As required by statute, appellant was given a written copy of the terms and conditions of her probation which contained, among other requirements, the provision that she not commit a criminal offense punishable by imprisonment. She signed the acknowledgment of the terms and conditions on August 28, 2002, and a copy of the terms and conditions was made part of the court’s file. A petition to revoke was filed on March 15, 2005, alleging that appellant violated the terms of her probation by her failure to report, delinquency on court ordered payments, failure to refrain from the use of illegal controlled substances, being out of state without permission, and being found guilty of driving under the influence and negligent minor care in the state of Nebraska and not reporting the offense to her probation officer. A hearing on the petition was held April 28, 2005.
At the hearing Mary Rudisill, a probation officer for White County, testified that she received a call from an officer in Nebraska informing her that appellant’s transfer to that state was being denied due to new charges appellant received in Nebraska. Appellant was charged in Nebraska with driving under the influence and negligent minor care, and she was sentenced to ten days in jail, six months driver’s license suspension and a $400 fine. Ms. Rudisill testified that appellant had completed her sentence in the state of Nebraska. Appellant testified that she did receive a DUI in Nebraska, and that her daughter was riding in the car with her when she was arrested. The court documents from Nebraska were admitted into evidence without objection.
Ms. Rudisill also testified that she performed a home visit at appellant’s home, and appellant gave her permission to come inside. Appellant indicated to Ms. Rudisill the bedroom in which she was staying, and on the nightstand in plain view was drug paraphernalia. A field test of a light bulb and plate revealed a positive result for methamphetamine. There was also a glass pipe, marijuana seeds in a plastic bag, three yellow tablets in a plastic bag, scrub pads, and a torch lighter. Ms. Rudisill testified that appellant tested positive for drugs on many occasions. During appellant’s testimony she denied that the drug paraphernalia belonged to her, and she denied being on drugs; however, when escorted from the courtroom to take a drug test, she admitted that she would test positive for methamphetamine. Appellant’s confession was admitted without objection. The trial court revoked appellant’s probation, finding that there had been a violation of the terms of probation.
Appellant does not dispute the fact that she was on probation, rather she asserts that because the terms and conditions of her probation were not entered into evidence at the revocation hearing, the trial court had no legal basis for finding a violation. Although appellant raises this argument for the first time on appeal, she contends her argument is a challenge to the sufficiency of the evidence. The sufficiency of the evidence of the State’s proof regarding violation of a condition of probation may be challenged on appeal of a revocation in the absence of a motion for directed-verdict. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001).
This court dealt with a similar issue in Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). In Nelson, the appellant argued for the first time on appeal that the State failed to produce proof at the hearing that a written list of probationary conditions was given to him, so no revocation could be had. He asserted that his argument was one about the sufficiency of the proof, so the issue was open for review despite being raised for the first time on appeal. We reasoned that “the rule requiring one to make procedural and evidentiary objections known to the trial court is still a viable rule of law. At no time did appellant raise this issue by pointing out to the trial court that he had not been furnished a written statement of his conditions or by objecting to the revocation hearing on that ground.” Id. at 379, 141 S.W.3d at 904. We held that this was a procedural matter and appellant did not timely object; therefore, he waived the issue on appeal.
In the case at bar, appellant does not argue that the State failed to prove that she had knowledge of the terms and conditions of her probation; instead, she asserts that the State failed to prove that the court had knowledge of the terms and conditions of her probation. Appellant’s argument ignores the long-recognized presumption that every person is presumed to know the law, whether civil or criminal. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003). Indeed, a higher duty of compliance rests on those whose responsibility it is to enforce the law than on the general populace. Harris v. State, 264 Ark. 391, 572 S.W.2d 389 (1978). Because our statutory law requires that every probationary sentence contain the condition that the probationer not violate the law, and because everyone is presumed to know the law, it was not necessary for the State to introduce into evidence the probationary condition that appellant not violate the law. There was testimony from appellant’s probation officer and from appellant herself that she was convicted and served jail time in Nebraska for driving under the influence. There was also testimony that appellant was in possession of drug paraphernalia during the probation officer’s home visit, and appellant admitted at the hearing that she would test positive for methamphetamine. Appellant’s argument that the terms and conditions of probation were not introduced into evidence amounts to a procedural objection, and appellant did not raise this issue at the revocation hearing. This court will not consider issues raised for the first time on appeal. Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982).
Appellant also argues that the court’s findings supporting the revocation of her probation are against the preponderance of the evidence because there was no proof that the violation was “inexcusable” as required by Ark. Code Ann. § 5-4-309(d) (Repl. 2006). Appellant testified that she was convicted in Nebraska of DUI, and she also confessed to using methamphetamine. She offered no excuse for her behavior. The preponderance of the evidence supports the court’s finding that appellant violated the terms and conditions of her probation. Accordingly, we affirm.
Affirmed.
Robbins, Bird, Baker, and Roaf, JJ., agree.
Griffen, J., dissents. | [
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David M. Glover, Judge.
Appellee Dotty Davis was employed by appellant, Pocahontas Electronics, as a data-entry clerk. The history of appellee’s claim for unemployment benefits was as follows: she was initially disqualified by the Department of Workforce Services because it found that she left her work voluntarily and without good cause connected to the work; she appealed to the Appeal Tribunal, which affirmed the initial denial of benefits; and she then appealed to the Board of Review, which reversed the Appeal Tribunal and concluded that appellee voluntarily left her job with good cause connected to the work. Appellant challenges the Board of Review’s conclusion. We affirm.
The facts of this case are essentially undisputed. Davis explained at the hearing before the Appeal Tribunal that in the spring of2005, she became aware that Nancy Geelhoed, one of the owners of Pocahontas Electronics, suspected her of using methamphetamine, and that Geelhoed had talked to her own ex-son-in-law about those suspicions. Davis confronted Geelhoed about the situation. Geelhoed confirmed not only that she had talked to her ex-son-in-law about her suspicions, but also that she believed them to be true. Davis denied that she was using drugs, and Geelhoed called her a “f-ing liar.” Approximately fifteen minutes later, Davis turned in her keys to the building and left. She did not speak to the other co-owner, Zachary Geelhoed, who was her day-to-day supervisor, because he was not on the premises at the time. Apparently, cell-phone reception was poor, and appel-lee’s efforts to call him, as well as his efforts to return her calls, were unsuccessful.
Nancy Geelhoed explained that she spoke to her ex-son-in-law at her daughter’s suggestion because he had formerly used methamphetamine and the daughter thought that he could help identify the signs or indications of meth use. She acknowledged that when appellee confronted her and denied using drugs that she called appellee a liar and might have used the phrase “f-ing liar.”
Standard of Review
As this court explained in Perdrix-Wang v. Director, 42 Ark. App. 218, 221, 856 S.W.2d 636, 638 (1993):
Arkansas Code Annotated § 11-10-513 (1987) provides in pertinent part that an individual shall be disqualified from receiving unemployment benefits if she left her last work “voluntarily and without good cause connected with the work.” Ark. Code Ann. § ll-10-513(a)(l). A claimant bears the burden of proving good cause by a preponderance of the evidence. Harris v. Daniels, 263 Ark.897, 567 S.W.2d 954 (1978); Tate v. Director, 267 Ark. 1081, 593 S.W.2d 501 (Ark.App. 1980). Good cause has been defined as a cause that would reasonably impel the average able-bodied, qualified worker to give up his or her employment. Teel v. Daniels, 270 Ark.766, 606 S.W.2d 151 (Ark.App. 1980). It is dependent not only on the good faith of the employee involved, which includes the presence of a genuine desire to work and to be self-supporting, but also on the reaction of the average employee. Id. In determining the existence of good cause for voluntarily leaving one’s work under § 11-10-513, factors to be considered include the degree of risk to one’s health, safety, and morals, and her physical fitness, prior training, and experience. Ark. Code Ann. § 11-10-515(c) (Supp. 1991). What constitutes good cause is ordinarily a question of fact for the Board to determine from the particular circumstances of each case. Roberson v. Director, 28 Ark. App. 337, 775 S.W.2d 82 (1989); Rose v. Daniels, 269 Ark. 679, 599 S.W.2d 762 (Ark. App. 1980).
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Ark. Code Ann. § 11-10-529(c)(1) (1987); Feagin v. Everett, 9 Ark.App. 59, 652 S.W.2d 839 (1983). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corp. v. Daniels, 1 Ark. App. 6, 611 S.W.2d 794 (1981). We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Feagin v. Everett, supra. Even when there is evidence upon which the Board might have reached a different decision, the scope ofjudicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
Appellant’s argument on appeal is that the Board’s decision is not supported by substantial evidence and that the Board failed to take into consideration appellee’s failure to take appropriate steps to rectify the problem, which appellant contends would have included an offer to submit to a drug test. The Board, however, did not base its decision upon the fact that Geelhoed talked to her ex-son-in-law about her suspicions of appellee’s drug use. Rather, it was the fact that when Geelhoed accused appellee of using methamphetamine and appellee denied such use, Geelhoed then called her a “f-ing liar,” which convinced the Board that such a confrontation would reasonably impel an average able-bodied, qualified worker to give up his or her employment. According to the Board’s opinion:
There is nothing particularly wrong with the co-owner asking her former son-in-law about the symptoms of illegal drug use or revealing that she “suspected” the claimant of using [methamphetamine]. However, the co-owner accused the claimant of using [methamphetamine] and when the claimant denied using the illegal drug, the owner called her a “f[-]ing bar.” . . . The evidence does not establish that the claimant used the illegal drug, although it is understandable that the employer might have suspected it. The claimant acted in good faith when she confronted the co-owner to deny the allegation and try to prevent the spread of such an allegation. The employer’s response (calling the claimant a ‘f[-]ing bar’) would have impebed the average, able-bodied, quahfied individual to give up the job.
Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings, we hold that they are supported by substantial evidence.
Affirmed.
Hart and Crabtree, JJ., agree. | [
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John Mauzy Pittman, Chief Judge.
This is an appeal from an order terminating appellants’ parental rights to their two children. Appellants argue that the trial court erred in finding grounds for termination of parental rights at the adjudication hearing conducted January 4 and 5, 2005, prior to the termination hearing being held and without notice to the appellants that a termination hearing would be conducted. They also argue that the evidence was insufficient to support the findings that appellants failed to remedy the conditions causing removal and that the Arkansas Department of Human Services made a meaningful effort to provide them with appropriate services. We affirm.
Appellants’ argument that the trial court erred in finding grounds for termination of parental rights at the adjudication hearing without notice to the appellants that a termination hearing would be conducted is not preserved for appeal because appellant filed no notice of appeal from the adjudication order. Arkansas Rules of Appellate Procedure — Civil 2(c)(3)(A) expressly provides that adjudication hearings in juvenile cases are final, appealable orders. Appellants failure to file a timely notice of appeal deprives this court of jurisdiction to consider the issues raised in that order. See Arkansas Department of Human Services v. Dix, 94 Ark. App. 139, 227 S.W.3d 456 (2006); see also Jefferson v. Arkansas Department of Human Services, 356 Ark. 647, 158 S.W.3d 129 (2004); Hawkins v. State Farm Fire and Casualty Co., 302 Ark. 582, 792 S.W.2d 307 (1990); Moore v. Arkansas Department of Human Services, 69 Ark. App. 1, 9 S.W.3d 531 (2000).
Appellants’ remaining arguments challenge the sufficiency of the evidence to support the termination of their parental rights. Although termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Jefferson v. Arkansas Department of Human Services, supra. Grounds for termination of parental rights must be proven by clear and convincing evidence. Carroll v. Arkansas Department of Human Services, 85 Ark. App. 255, 148 S.W.3d 780 (2004). When the burden of proving a disputed fact is by “clear and convincing evidence,” the question on appeal is whether the trial court’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Dinkins v. Arkansas Department of Human Services, 344 Ark. 207, 40 S.W.3d 286 (2001).
Pursuant to Ark. Code Ann. § 9-27-341 (a) (Repl. 2002), an order terminating parental rights must be based on a finding that termination would be in the best interest of the juvenile pursuant to enumerated grounds, including a finding that the child has been adjudicated dependent-neglected and, despite meaningful effort by ADHS to rehabilitate the home and rectify the conditions causing removal, the parent has failed to remedy the conditions. Noting that the child had been removed four times in the course of two years, the trial court found that there was little likelihood of successful reunification because the condition in the home had not improved in two years despite meaningful efforts by ADHS to rehabilitate the home, including provision of appropriate services.
The oldest child, T.S., was six months old when this case was opened in January 2003 because of environmental neglect. Danielle Sims, a family services worker with ADHS, testified that appellants’ home was in utter disarray with trash in the living room and dirty clothes, bottles, and dishes everywhere. The parents smoked in the home and there were three or four ashtrays full of cigarette butts located in various places in the house. Ms. Sims, noticing that T.S. breathed with a gurgling, rasping sound, directed appellants not to smoke in the house. Although T.S. had been medically diagnosed with Respiratory Syncytial Virus and had been prescribed Proventil and Albuterol, and the parents had been repeatedly directed by Conway Children’s Clinic to discontinue smoking in the home, they continued to do so for the duration of the case.
T.S. had also been diagnosed with failure to thrive and, given his diagnosis and the failure of appellants to comply with directions to keep the home clean, safe, and smoke-free, he was taken into ADHS custody. Services, including numerous in-home lessons in housekeeping and parenting, were provided to appellants by ADHS. T.S. was returned to his parents in September 2003 but was again removed pursuant to a motion for emergency change of custody filed by ADHS only one month later. The reason for the emergency removal was that T.S.’s primary care physician reported that she had given appellants specific feeding instructions but, during the month in appellants’ custody, his weight had fallen below the fifth percentile. T.S. was hospitalized for failure to thrive and gained almost one pound during the first night of hospitalization. Because T.S. had gained weight in foster care and lost weight in appellants’ care, the trial judge ordered T.S. to be returned to foster care. A new baby born in December, V.S., was added to the case but remained in the home. During this time, appellants were provided with more intensive services, including a check-list to keep track of necessary child care and household chores.
T.S. was returned to the home in April 2004 under intensive supervision by ADHS. It became clear that appellants would only comply when they were under strict and frequent supervision, and that the smoking in the home remained a concern. At a review hearing in June 2004, it was reported that the condition of the home was somewhat improved but that there were still piles of things scattered everywhere, and the odor of smoke in the home continued to be strong enough to cause an ADHS worker to have an allergic reaction.
A petition for emergency change of custody filed by ADHS resulted in an adjudication hearing for V.S. There was testimony from a licensed practical nurse at the day school attended by T.S. that T.S. regularly reeked of cigarette smoke, that he frequently had head lice, and that he came to school in so unhygienic a state that the administrator took the unusual step of bathing him at school after contacting the parents produced no improvement. An occupational therapist at the school testified that T.S. arrived at school in October 2004 smelling of cigarette smoke, coughing horribly, and unable to catch his breath. Even after the school nurse gave T.S. his inhaler, he could not stop crying and coughing. She testified that T.S. was much improved when he was placed in foster care. He no longer needed his inhaler at all and no longer had a runny nose or head lice.
The record contains many more similar examples; suffice it to say that removal of the children in this case was occasioned by environmental neglect, and there was abundant proof to show that this situation had not appreciably changed despite two years of intensive effort by ADHS, including room-to-room cleaning instructions for Mrs. Sowell and one-on-one lessons to show her how to bathe a child. On this record, we cannot say that the evidence is insufficient to support the finding that appellants failed to remedy the conditions causing removal.
Appellants also argue that the services offered by ADHS were not meaningful because Mrs. Sowell was disabled by virtue of her borderline mental retardation and therefore entitled to special services under the Americans with Disabilities Act. This argument is without merit because Mrs. Sowell has not demonstrated that she is disabled. To come within the purview of the Americans with Disabilities Act, Mrs. Sowell must demonstrate that she has a mental impairment that substantially limits one or more of her major life activities 42 U.S.C. § 12102(2); see Ruble v. Arkansas Department of Human Services, 75 Ark. App. 321, 57 S.W.3d 233 (2001). However, Lewis Campbell, a psychological examiner, testified that he conducted a psychological evaluation of Mrs. Sowell and found nothing to indicate that she was incapable of performing the basic tasks of dressing, cleaning, and bathing that were required of her, and that her only mental diagnosis was mild mental retardation. Given this evidence and the evidence that Mrs. Sowell, by intermittent compliance, did in fact demonstrate that she had learned and was capable of satisfactorily performing the tasks at issue, we do not think it can be said that she was disabled as defined by the Act or that the services offered were not adequate.
Affirmed.
Bird and Neal, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Herman G. Folk appeals his conviction for theft of property and the resulting sentence of fifteen years in prison and an order to pay $5600 in restitution. He argues that the trial court erred in failing to permit him to withdraw his plea of no contest. The State asserts that appellant failed to preserve this issue for appellate review, or in the alternative, that this argument holds no merit. We affirm.
The following is a chronology of relevant events leading to this appeal. An information charging appellant with theft of property was filed in Bradley County Circuit Court on August 4, 2004. A jury trial was set in the early months of 2005, but was continued several times to June 8, 2005. Appellant was accused of making fraudulent deposits into a bank account and making withdrawals from that account, otherwise known as “check kiting.” He was on parole at the time. At the commencement of proceedings on June 8, the public defender and prosecutor announced that they had negotiated a plea bargain whereby the bank would quickly receive full restitution and appellant would also serve a five-year sentence. There was some discussion about waiting a week to accept the plea so that restitution could be paid first, but the trial judge said, “I’d like to consummate it today.” The prosecutor asked that the trial court “let him plead guilty and sentence him when we get the money[.]” The public defender added that “if you don’t accept the State’s recommendation we can withdraw our guilty plea.” The trial judge replied, “That sounds good.” Thereupon, appellant verbally entered a no-contest plea in open court after a full verbal examination, waiving his rights to a trial on the charges. A written and signed “No Contest Plea Statement” was filed on the same day, reflecting appellant’s identifying information, the criminal charge and range of punishment, and the consequences of pleading no contest, including:
I believe the Prosecutor’s recommendation is in my best interest. If I plead guilty, I understand the court is not required to accept either my no contest plea or the Prosecutor’s recommendation for punishment, and the court can make my sentence greater or lighter than the recommendation.
The prosecutor’s recommendation for this crime was (1) to serve a five-year prison sentence consecutively to another sentence appellant had already served, with credit for time served since February 9, 2005; (2) to pay court costs and jury costs; and (3) to pay restitution of $5600 to Warren Bank and Trust Company within seven days of June 8, 2005. The trial judge indicated acceptance of the no-contest plea, commenting that he wanted appellant to promptly pay the restitution, which was the compelling interest argued by the State. At the conclusion, the trial court set sentencing for June 29, but appellant was ill that day, necessitating that sentencing be moved to July 11.
On July 11, 2005, appellant and his public defender appeared. Appellant announced that he wanted the public defender to cease representing him, he was seeking another attorney, and he wanted to withdraw his plea. The judge reminded appellant that his case was set for sentencing because he had already entered a no-contest plea upon which the court “made a finding that you were guilty.” The public defender explained that since the June 8 hearing, appellant’s sister was unable to garner the funds to pay full restitution, so appellant had suggested another sentence he would be willing to accept. Appellant stated, “I withdraw the plea.” The judge responded that, “it’s not that simple.” However, the trial judge continued the sentencing for another month, to late in August, to allow appellant to try to find another attorney of his own choosing. At a review hearing on July 27, 2005, appellant had not acquired private counsel, so another public defender was appointed to represent appellant. A jury sentencing was conducted on August 18, 2005, without comment or objection from defense counsel. After deliberations on punishment, the jury rendered a fifteen-year prison sentence and restitution to the bank. Prior to pronouncement of sentence, appellant said that he would be appealing. Appellant filed a timely notice of appeal from the judgment of conviction.
Appellant argues that the trial court violated his absolute right to withdraw his no-contest plea pursuant to Ark. R. Crim. P. 26.1, or alternatively abused its discretion in not allowing withdrawal. Rule 26.1 provides in pertinent part:
(a) A defendant may withdraw his or her plea of guilty or nolo contendere as a matter of right before it has been accepted by the court. A defendant may not withdraw his or her plea of guilty or nolo contendere as a matter of right after it has been accepted by the court; however, before entry of judgment, the court in its discretion may allow the defendant to withdraw his or her plea to correct a manifest injustice if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of his or her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea. A plea of guilty or nolo contendere may not be withdrawn under this rule after entry of judgment.
(b) Withdrawal of a plea of guilty or nolo contendere shall be deemed to be necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that:
(iv) he or she did not receive the charge or sentence concessions contemplated by a plea agreement and the prosecuting attorney failed to seek or not to oppose the concessions as promised in the plea agreement; or
(v) he or she did not receive the charge or sentence concessions contemplated by a plea agreement in which the trial court had indicated its concurrence and the defendant did not affirm the plea after receiving advice that the court had withdrawn its indicated concurrence and after an opportunity to either affirm or withdraw the plea.
Appellant alleges that it is unclear whether the trial court accepted his no-contest plea, giving him the absolute right to withdraw it, pursuant to subsection (a). Furthermore, he argues that even if the trial court accepted the plea, the trial court abused its discretion in not permitting it to be withdrawn to avoid manifest injustice pursuant to subsections (a) and (b) because he did not receive the sentence he had negotiated.
The State responds that appellant’s no-contest plea was in fact accepted at the June 8 hearing, reinforced by appellant’s statement that he wanted to withdraw the plea at the review hearing in late July. We agree with the State’s assessment, given a reading of the colloquy on the record among the attorneys, the judge, and appellant. The judge made clear that he desired to complete the no-contest plea and not wait to see if appellant fulfilled his promise to pay restitution within seven days of June 8. The review hearing where appellant stated his desire to withdraw his plea and obtain new counsel, and the trial court’s response, support that proposition. For this reason, appellant did not have an absolute right to withdraw the plea.
Appellant argues in the alternative that the trial court abused its discretion in not permitting withdrawal of the plea after appellant did not comply with the time-sensitive restitution. The State argues that this argument is procedurally barred for failing to obtain a ruling on this specific aspect of the argument. Appellant, not his attorney, made only a general statement that he wanted to withdraw his plea. Nonetheless, his attorney amplified that appellant was unable to pay the monies owed and had his own idea of a sentence he would accept. It is apparent that he was invoking Rule 26.1, and we address the merits of the argument.
Appellant’s argument is unavailing. It was his burden to show to the satisfaction of the trial court that a manifest injustice needed correcting, if it was fair and just to do so, giving consideration to the reasons advanced by the defendant and any prejudice resulting to the State if the motion to withdraw were granted. Ark. R. Crim. P. 26.1(a). This is a discretionary decision left to the trial judge. See id. What constitutes a “manifest injustice” is explained by way of example in subsection (b) of the Rule. Appellant seizes on the subsections speaking to a defendant not receiving the benefit of his bargain enumerated in (b)(iv) and (b)(v). He is mistaken.
Appellant has failed to show that the trial court abused its discretion in failing to permit withdrawal of the no-contest plea where appellant failed to comply with his end of the bargain. Appellant did not comply with the terms of the sentence recommendation in that he failed to pay restitution within seven days, and his attorney stated that appellant had another suggested “deal” for sentencing. Appellant gambled on his sister’s ability to pay the restitution for him within seven days, and the trial court and prosecutor had no control over that outcome. There is no “manifest injustice” here, as defined in Rule 26.1, thus the trial court did not abuse its discretion in not granting withdrawal of his plea. Compare Ellis v. State, 288 Ark. 186, 703 S.W.2d 452 (1986). It would be inherently unfair for the judge to only bind one of the parties to the bargain. See Williams v. State, 272 Ark. 207, 613 S.W.2d 94 (1981). We hold that no abuse of discretion has been demonstrated.
Appellant adds in closing that the trial judge violated Ark. R. Crim. P. 25.3, which mandates the duty of a trial judge regarding pleas. This Rule provides in pertinent part that if the judge agrees with the plea agreement, but then decides before sentencing that the concessions should not be included in the disposition, then he must advise the parties and give the defendant an opportunity to affirm or withdraw his plea. Ark. R. Crim. P. 25.3(b). In failing this, appellant argues that the trial court erred. We disagree that appellant has demonstrated an error here because the concessions were no longer applicable when appellant failed to abide by his duty under the plea agreement. See Williams, supra.
Affirmed.
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Sam Bird, Judge.
Appellant River Valley Motors, Inc., d/b/a Honda World (Honda World), appeals from both a judgment ordering it to pay compensatory and punitive damages to appellee Peggy Ramey and the subsequent denial of its motion for judgment notwithstanding the verdict and a new trial. Honda World contends (1) that the evidence at trial was insufficient to support the jury’s verdict; (2) that the jury’s verdict was against the preponderance of the evidence; (3) that the reinstatement of Ramey’s revocation claim after the trial court granted Honda World’s motion for a directed verdict was in error; and (4) that the punitive damages award without compensatory damages for fraud was improper. Because Honda World failed to challenge the trial court’s ruling that its motion for judgment notwithstanding the verdict and a new trial was untimely, and because the filing of its notice of appeal was also untimely, we dismiss the appeal.
On July 19, 2004, Ramey filed an action for fraud against Honda World after becoming unhappy with a car that she had purchased at the dealership. In her complaint, Ramey alleged that she had revoked acceptance of the vehicle and she sought to be restored to “her position prior to the contract.” She also tendered return of the vehicle and sought a refund of the $14,000 contract price for the vehicle. In addition, she claimed that Honda World “intentionally pursued a course of conduct for the purpose of causing damage” and requested punitive damages.
At trial, Ramey explained that she purchased the car on March 29, 2003, and, at that time, the salesperson told her that the car had not been “wrecked.” Within two weeks of purchasing the car, Ramey experienced problems with it, discovered that it had previously been involved in an accident, and returned to Honda World to say that she “wanted out of the car.” She claimed that Honda World promised to help her find another car, but they were “unable to find another car to meet [her] satisfaction.” Ramey admitted that she had a minor accident after purchasing the car. She also admitted that, for the two-and-a-half years prior to the time of the trial, she had kept the car, made payments on it, and treated it as her own. Ramey put approximately 26,000 additional miles on the car during this time.
Honda World subsequently moved for a directed verdict on Ramey’s revocation claim and fraud claim. The trial court granted the motion with respect to the revocation claim, but denied the motion on the fraud claim.
Several employees of Honda World testified that they did not know the car had previously been involved in an accident. Darrell Gill, the sales manager at Honda World, testified that he did his “best” to find a new car for Ramey and that she never said, “Here’s the car. Give me my money back.”
After Honda World rested, Ramey asked the court to reconsider its ruling on the directed-verdict motion for the revocation claim, asserting that Honda World “opened the door” when it asked Gill whether Ramey had ever asked for her money back. The trial court reinstated the revocation claim, and Honda World objected. Honda World then moved for a directed verdict on the issue of punitive damages, and the court denied the motion.
The jury awarded Ramey $13,500 in compensatory damages for revocation of acceptance and $20,000 in punitive damages, but did not award compensatory damages for fraud. Judgment against Honda World for these sums was entered on August 3, 2005. On August 18, 2005, Honda World filed a “Motion for Judgment Notwithstanding the Verdict and New Trial,” claiming, among other things, that the jury’s verdict was clearly contrary to the preponderance of the evidence presented during trial and that the award of punitive damages was contrary to law. Ramey responded, arguing that Honda World’s motion was not timely filed, noting that the lapse of time between the filing of the judgment (August 3) and the filing of Honda World’s motion (August 18) was more than ten days, excluding weekends and holidays. Ramey also argued that, even if Honda World’s motion was timely, the motion should be denied on its merits.
At a hearing on Honda World’s motion, Honda World presented evidence that, although its motion was not file-marked until August 18, 2005, the motion was actually delivered to and received in the circuit clerk’s office at 2:26 p.m. on August 17 but, due to a “clerical oversight,” was not file-marked until August 18. Honda World argued that under these circumstances, its JNOV and new-trial motion should be treated as timely filed and considered by the court on its merits. In ruling on Honda World’s motion, the court made two findings: first, that Honda World’s motion, having not been file-marked until eleven days after the entry ofjudgment, was not timely filed as required by Rules 50 and 59 of the Arkansas Rules of Civil Procedure; and second, that Honda World’s JNOV and new-trial motion was without merit.
On appeal, Honda World contends (1) that the evidence at trial was insufficient to support the jury’s verdict; (2) that the jury’s verdict was against the preponderance of the evidence; (3) that the reinstatement of the revocation claim after the trial court granted Honda World’s motion for a directed verdict was in error; and (4) that the punitive damages award without compensatory damages for fraud was improper. Ramey argues in her responsive brief that Honda World’s notice of appeal was untimely because it was not filed within thirty days following the entry of the judgment from which it appeals.
Significantly, Honda World has failed to challenge on appeal the trial court’s conclusion that its JNOV and new-trial motion was not timely filed. Consequently, as a preliminary matter, we must determine whether this court has jurisdiction to consider this appeal. Ramey claims that Honda World’s appeal should be dismissed because its notice of appeal was not timely filed. As Ramey points out, a notice of appeal must be filed within thirty days of the entry of judgment appealed from. See Ark. R. App. P. — Civ 4(a). However, the time to file a notice of appeal is extended upon the timely filing of a motion for judgment notwithstanding the verdict pursuant to Rule 50(b) of the Arkansas Rules of Civil Procedure or the timely filing of a motion for a new trial pursuant to Rule 59(a). See Ark. R. App. P.-Civ. 4(b) (emphasis added). Specifically, when such a motion is timely filed, the notice of appeal must be filed within thirty days from the entry of the order disposing of the motion or from the date the motion is deemed denied. See Ark. R. App. P.-Civ. 4(b). Ramey claims that, because Honda World failed to file a timely motion for judgment notwithstanding the verdict and new trial in this case, the time to file its notice of appeal was not extended under Rule 4(b), and the failure to file a notice of appeal within thirty days of the August 3, 2005 judgment requires us to dismiss the appeal. We agree.
While we express no opinion as to whether the trial court erred in ruling that Honda World’s JNOV and new-trial motion was untimely, it cannot be disputed that Honda World has not challenged the trial court’s ruling on appeal. Because of the trial court’s unchallenged ruling that Honda World’s motion was not timely, the filing of the motion could not have the effect of extending beyond thirty days the time for filing the notice of appeal. Therefore, Honda World’s notice of appeal would have been required to be filed not later than thirty days after the judgment was entered on August 3, 2005. The record reflects that Honda World’s notice of appeal was not filed until October 3, 2005, clearly more than thirty days after the entry of judgment. Therefore, we must dismiss the appeal because we lack jurisdiction to consider it.
Appeal dismissed.
Baker and Roaf, JJ., agree. | [
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Beth Gladden Coulson, Judge.
Appellant raises four points for reversal of the trial judge’s ruling granting appellee’s motion for a directed verdict. We find none of her arguments persuasive, and we accordingly affirm the decision of the trial court.
The nature of the present case makes it necessary to examine the factual background at some length. On October 3, 1983, Bruce Jarsma, a soliciting agent for appellee, Pyramid Life Insurance Company, called upon appellant, Ora Lee Hunt, and her husband, William Hunt, at their home in Little Rock, and persuaded them to purchase term life insurance for members of their immediate family, which included nine children.
Appellant also wanted a policy insuring the life of her sister, Dorothy Mae Jones, of Biscoe, Arkansas. It appears that while Jarsma was present appellant phoned her sister for some information which the agent used in preparing the policy. Because appellant is illiterate (although she can sign her own name) she asked her husband to sign her sister’s name on the insurance application form.
The application, dated October 3,1983, named appellant as the sole beneficiary. According to the testimony of appellant’s husband, the purpose of the $50,000 policy was to provide funeral expenses in the event of Dorothy Mae Jones’s death. The application form contained various questions relating to the past and present health of the proposed insured, and all were answered in the negative.
A policy was issued on October 11,1983, with “Dorothy M. Jones” named as the insured and owner. On February 6, 1984, Dorothy Mae Jones died as a result of cancer of the pancreas. Appellee denied páyment of appellant’s claim based on the health of Dorothy Mae Jones. Appellant filed suit against appellee, alleging breach of contract, bad faith, fraudulent misrepresentation, and violation of the Arkansas Unfair Claims Settlement Act, Ark. Stat. Ann. § 66-3005 et seq. (Repl. 1980, Supp. 1985). Appellant also requested compensatory and punitive damages.
At trial, a hearing was conducted in chambers after appellant had rested her case. The trial judge then granted appellee’s motion for a directed verdict on the first count of appellant’s complaint, concerning the alleged breach of contract, but made no ruling on the remaining counts. From that decision, this appeal arises.
In her first point for reversal, appellant contends that the trial judge erred when he granted appellee’s motion for a directed verdict. As a procedural matter, a directed verdict is proper only when the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside. Prudential Insurance Co. v. Williams, 15 Ark. App. 94, 689 S.W.2d 590 (1985). To determine, on appeal, the correctness of the trial court’s action regarding a motion for a directed verdict, we view the evidence that is most favorable to the non-moving party and give it the highest probative value, taking into account all reasonable inferences deducible from it. National Security Fire & Casualty Co. v. Williams, 16 Ark. App. 182, 698 S.W.2d 811 (1985).
According the highest probative value to the evidence presented by appellant, we cannot find any substantial evidence tending to establish an issue of fact in appellant’s favor. The controlling law is found at Ark. Stat. Ann. § 66-3206 (Repl. 1980):
No life or disability insurance contract upon an individual, except a contract of group life insurance or of group or blanket disability insurance, 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. . . [Emphasis added.]
This court applied the statutory language to a situation in which an agent had never obtained an insured’s consent or signature in Cableton v. Gulf Life Insurance Co., 12 Ark. App. 257, 674 S.W.2d 951 (1984). We noted the public policy considerations which led to the enactment of the law codified at § 66-3206, quoting from Callicott v. Dixie Life & Accident Insurance Co., 198 Ark. 69, 127 S.W.2d 620 (1939):
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.
In commenting on Callicott, we stated: “The passage of Ark. Stat. Ann. § 66-3206 codifies this policy and cannot be circumvented.” 12 Ark. App. at 259.
Appellant asserts that § 66-3206 and Cableton are inapplicable because appellee “ratified the parol agreement.” However, even when the evidence is viewed most favorably to appellant, there is nothing to indicate that appellee was ever informed, by its agent or any other person, that the application had not been signed by the insured. Without such knowledge on appellee’s part, it cannot be said that ratification occurred. Appellant’s contention amounts to an argument that there had been a waiver of requirements by appellee, but, as Cableton emphatically states, the requirements of § 66-3206 “cannot be circumvented.” We pointed in Cableton to Southern Burial Insurance Co. v. Baker, 199 Ark. 468, 134 S.W.2d 1 (1939), where the Arkansas Supreme Court stated its adherence to the policy of non-waiver of statutory law in the following terms:
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.
199 Ark. at 473, 134 S.W.2d at 3 quoted at 12 Ark. App. at 259, 674 S.W.2d at 952.
Because of the well established public policy, codified in the statutes and explained in the case law, neither the alleged oral consent of Dorothy Mae Jones nor the purported waiver of requirements of ratification by appellee is effective to negate the mandatory invalidation of life insurance policies issued without an application or consent in writing by the insured.
Appellant argues in her second point for reversal that the agent, Bruce Jarsma, had apparent authority to bind appellee to a term life insurance policy on Dorothy Mae Jones. At trial, however, appellee admitted only that Jarsma was a soliciting agent and, as such, had no authority to bind appellee to the issuance of this or any other policy.
It is well settled that the insured or the beneficiary of an insurance policy has the burden of proving coverage. Snow v. Travelers Insurance Co., 12 Ark. App. 240, 674 S.W.2d 943 (1984). Arkansas is one of the states that makes a distinction between the authority of general and special agents of insurance companies. Security Insurance Corp. v. Henley, 19 Ark. App. 299, 720 S.W.2d 328 (1986). A general agent is ordinarily authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies, and to change or modify the terms of existing contracts. A soliciting agent, on the other hand, is ordinarily authorized to sell insurance, to receive applications and to forward them to the company or its general agent, to deliver the policies when issued, and to collect premiums. Holland v. Interstate Fire Insurance Co., 229 Ark. 491, 316 S.W.2d 707 (1958).
Our courts have repeatedly held that a soliciting agent is not invested with the authority to make contracts on behalf of the insurer. American National Insurance Co. v. Laird, 228 Ark. 812, 311 S.W.2d 313 (1958). Notice to a soliciting agent is not notice to the company. A soliciting agent has no authority to waive any of the policy requirements, nor can his knowledge be imputed to the company he represents. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). See also Jackson v. Prudential Insurance Co. of America, 736 F.2d 450 (8th Cir. 1984); Ford Life Insurance Co. v. Jones, 262 Ark. 881, 563 S.W.2d 399 (1978); Holland v. Interstate Fire Insurance Co., supra-, Security Insurance Corp. v. Henley, supra. The burden is on the plaintiff to show that a soliciting agent has real or apparent authority to bind his principal by contract. Security Insurance Corp. v. Henley, supra.
The following language, from Latham v. First National Bank of Fort Smith, 92 Ark. 315, 320, 122 S. W. 992, 993 (1909), has often been quoted by our courts in addressing the question of the authority of agents:
A principal is not bound by the acts and declarations of an agent beyond the scope of his authority. A person dealing with an agent is bound to ascertain the nature and extent of his authority. No one has the right to trust to the mere presumption of authority, nor to the mere assumption of authority by the agent.
See also Jackson v. M.F.A. Mutual Insurance Co., 169 F. Supp. 633 (W.D. Ark. 1958); Dixie Life & Accident Insurance Co. v. Hamm, 233 Ark. 320, 344 S.W.2d 601 (1961).
Appellant asserts that Jarsma had apparent authority to commit “certain acts” on behalf of appellee. The nature of apparent authority was discussed in Mack v. Scott, 230 Ark. 510, 323 S.W.2d 929 (1959):
The rule of law appears to be well settled that “The authority of an agent must be shown by positive proof or by circumstances that justify the inference that the principal has assented to the acts of his agent. . . .Apparent authority in an agent is such authority as the principal knowingly permits the agent to assume or which he holds the agent out as possessing; such authority as he appears to have by reason of the actual authority which he has; such authority as a reasonably prudent man, using diligence and discretion, in view of the principal’s conduct, would naturally suppose the agent to possess.” Pierce v. Fioretti, 140 Ark. 306, 215 S.W. 646. See also, Ozark Mutual Life Association v. Dillard, 169 Ark. 136, 273 S.W. 378.
230 Ark. at 514, 323 S.W.2d at 931-932.
Nothing in the record suggests any holding out of authority by appellee with respect to any form of authority of Jarsma to issue the policy in question or to bind appellee to issue the policy. Jarsma’s actions and words in receiving the application and premium presented as evidence by appellant of his apparent authority, simply show him to have been a soliciting agent acting outside the scope of his authority. He therefore had no authority, apparent or otherwise, to bind appellee to the insurance contract on Dorothy Mae Jones.
Appellant’s last two points are related and will be considered together. She argues that evidence of an oral agreement is admissible under conditions when fraud, deceit, or fraudulent misrepresentations are used to secure a written contract and that she presented sufficient evidence for the jury to find fraud, deceit, misrepresentation, bad faith, and breach of contract on counts II and III of her complaint. Appellant cites no authority for her argument concerning the admissibility of evidence of an oral agreement other than the inapposite comment that knowledge on the part of the agent is imputed to the insurer, taken from an incorrect case. An argument unsupported by convincing authority will not be considered on appeal unless it is apparent without further research that it is well taken. McIllwain v. Bank of Harrisburg, 18 Ark. App. 213, 713 S.W.2d 469 (1986).
Appellant contends that there was fraud or misrepresentation on the part of the agent because of his “knowing” acceptance of an application not signed by the insured. No evidence was presented, however, to show that Jarsma, any more than appellant or her husband, knew of the statutory requirement that the insured must sign the application. In any event, the non-waivable nature of the requirement rendered the issue moot for submission to a jury. It does not appear, from our review of the record, that appellant carried her burden of proof with respect to the allegations of fraud, misrepresentation, and bad faith.
Since the requirements of Ark. Stat. Ann. § 66-3206 are non-waivable, appellee’s acceptance of premiums does not, contrary to appellant’s assertion, provide a basis for a finding of liability on appellee’s part.
Finally, regarding appellant’s argument that appellee engaged in unfair claim settlement practices, under Ark. Stat. Ann. § 66-3005 et seq. (Repl. 1980), it must be noted that, under § 66-3005(a), an insurer must be shown to have committed or performed the prohibited practices “with such frequency as to indicate a general business practice.” Evidence of more than the acts alleged in this one case is required. Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984).
Affirmed.
Cooper, Jennings, and Mayfield, JJ., dissent. | [
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George K. Cracraft, Judge.
Nathan Randy Ballew appeals from his conviction of murder in the second degree contending only that the evidence is insufficient to sustain a finding of guilt. Although the appellant did not move for a directed verdict or otherwise preserve the issue of the sufficiency of the evidence in the trial court, the attorney general, relying upon Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980), has agreed in his brief that the issue is properly before this court because it is a matter that may be raised for the first time on appeal. We do not agree that Ply is controlling, and, in the absence of a proper objection or motion in the trial court, we do not reach the sufficiency issue on the merits. Johnson v. State, 290 Ark. 46, 716 S.W.2d 202 (1986); Janes v. State, 285 Ark. 279 686 S.W.2d 783 (1985); Eskew v. State, 273 Ark. 490, 621 S.W.2d 220 (1981); Wicks v. State, 270 Ark. 871, 606 S.W.2d 366 (1980).
Our court has long adhered to the general rule that it will not consider issues raised for the first time on appeal. That rule has now been codified as to civil actions in ARCP Rule 52(e), which provides that the failure in civil actions to move for a directed verdict or for a judgment notwithstanding the verdict constitutes a waiver of any question pertaining to the sufficiency of the evidence. This general rule was also applied to the issue of sufficiency of the evidence in criminal cases by our state and federal courts prior to the decision in Ply. See, e.g., Craig v. United States, 337 F. 2d 28 (8th Cir. 1964), cert. denied 380 U.S. 909 (1965); Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977); Gathright v. State, 245 Ark. 840, 435 S.W.2d 433 (1968).
There is language in Ply indicating that the supreme court was departing from its earlier rule and would consider the issue of sufficiency of the evidence for the first time on appeal. From our consideration of cases decided subsequent to Ply, however, we conclude that the court did not so intend. We are bound to follow these latest expressions of that court.
Shortly after Ply was decided, the court announced its decision in Wicks v. State, supra. In Wicks, the appellant argued for the first time on appeal that the court erred in failing to excuse a juror for cause and in failing to submit certain issues to the jury. In its opinion, the court noted the frequency with which it was being argued that cases should be reversed on points not raised in the trial court and stated that this practice was becoming burdensome. For that reason, the court stressed the absence of any objection to those issues in order to make its position clear. The court rejected the so-called “plain error rule” and restated its position in the following language:
To the contrary, in hundreds of cases we have reiterated our fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Citations to that familiar principle are unnecessary.
Exceptions to the basic requirement of an objection in the trial court are so rare that they may be reviewed quickly.
Wicks, 270 Ark. at 785, 606 S.W.2d at 369 (Emphasis added).
The court then recognized exceptions to the general rule in certain phases of death penalty cases, errors made by the trial judge himself at a time when there was no opportunity to object, errors so flagrant and highly prejudicial as to require the court to intervene sua sponte (such as failure to control a prosecutor’s closing argument), and errors relating to the admission or exclusion of evidence which affect substantial rights. The court concluded that, if there were any other exceptions to the general rule that an objection must be made in the trial court, it had not found them in its review of the case law. It is argued that Wicks is not authority for this rule because it did not involve the issue of sufficiency of the evidence. To us, the significance of Wicks lies in its failure to mention sufficiency of the evidence as a recognized exception.
In Eskew v. State, supra, the appellants were convicted of rape and kidnapping and argued on appeal that the evidence was insufficient to support their convictions of a class A felony. The court rejected that argument stating:
The second argument by appellants is that the evidence was insufficient to support the appellants’ conviction for class A felony kidnapping. This may well be true, but the fact remains that the appellants never requested an instruction on class C kidnapping, and the matter is raised for the first time on appeal. We need not cite authority for the proposition that we do not consider matters raised for the first time on appeal.
Eskew, 273 Ark. at 492, 621 S.W.2d at 221. It is argued that Eskew does not stand for the proposition that one cannot raise the issue of sufficiency for the first time on appeal because the court referred to the issue there as one of having failed to request an instruction. Although the court did use those words, it is clear that the issue before it was the sufficiency of the evidence to sustain the conviction.
If any doubt remained, it was resolved in Janes v. State, supra. In Janes, the appellant was convicted of driving while intoxicated, second offense. One essential element of the charge was a prior offense of DWI within the specified period. The record did not include documented evidence of a previous conviction or other evidence about a prior offense. At least one member of the court argued that the the issue could be raised for the first time on appeal and that the case should be reversed because the evidence of a prior offense was insufficient. However, the majority declared:
We have consistently held that where there is a particular defect in the State’s proof that might readily have been corrected had an objection been made, the absence of any objection prevents the point’s being raised for the first time on appeal.
Janes, 285 Ark. at 281, 686 S.W.2d at 784. It has been argued that Janes is not authority for this proposition because the issue was raised in conference rather than in the briefs and is therefore dicta. Dicta is generally defined as expressions which go beyond the facts before the court, express individual views, and are not necessary to a determination of the issue. We cannot conclude that the fact that the question was raised by the court sua sponte makes its declaration in disposition of the case dicta.
In Johnson v. State, supra, the appellant was found guilty of rape and kidnapping. On appeal, the appellant argued that the evidence was insufficient to establish the offense of kidnapping, but he had not raised that issue in the trial court. The court, in a two-paragraph opinion, declared that the matter was not before it as it did not consider matters which were not raised in the trial court. It has been argued that the court in Johnson did not rely upon proper precedent and did not overrule prior cases, including Ply v. State, supra. Whether the supreme court was right or wrong in its decisions or declarations in Johnson, Janes, and Eskew, is not an issue before this court. Whether we agree with the soundness of those decisions is one thing, but for us to refuse to follow them is another. They are the latest expressions of the highest court of this state, which this court is bound to follow.
A persuasive argument might be made that cases involving the requirement that the State prove each and every element of the crime charged should be distinguished from those in which Fourth and Fifth Amendment rights are waived by failure to properly assert them, in which guilt is established by other inadmissible evidence, or in which improper instructions are given without objection. Although it may be that the right to have every element of the offense proved is a positive one and that those dealing with the admissibility of evidence of guilt stand on a different footing, we are persuaded that those arguments would be better addressed to the supreme court in a plea that it reconsider its declarations in Eskew, Janes, and Johnson. We do not consider it within our province to do so even if we were so inclined.
Affirmed.
Corbin, C.J., Coulson and Cooper, JJ., concur. | [
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Melvin Mayfield, Judge.
Appellant was charged with the first degree murder of Barry Baker. The men engaged in a fight during which Baker received twenty-three stab wounds, three of which were serious enough to cause his death. After the fight, Baker drove to the Searcy police station where he collapsed in the parking lot. He died later that night at the hospital. The jury found appellant guilty of murder in the second degree and fixed his punishment at 20 years in the Department of Correction and a fine of $15,000.00. One of the points raised in this appeal is the sufficiency of the evidence.
In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court held that when there is a challenge to the sufficiency of the evidence, we must review that point prior to considering any alleged trial errors and, in doing so, we must consider all the evidence, including any which may have been inadmissible, in the light most favorable to the appellee.
There is evidence in the record showing that Julie Underhill had been dating Baker for several years. She claimed appellant had been harassing her for some months, following her frequently, and annoying her at work. On October 23, 1985, Ms. Underhill saw appellant near a car wash in Searcy while she was washing her car. She thought he was following her and she called the police. Officer Gary Hogue responded and stayed with her until she finished washing the car. She then drove to Baker’s home in Bald Knob and told him that the appellant was bothering her again. Baker left to find appellant and was next seen at the Searcy police station with the multiple stab wounds.
Appellant testified that he was going about his business on October 23, 1985, when a car began following him very close to his rear bumper. He said he attempted to lose it but could not, so he drove out into the country. On Fairview Road, the car attempted to pass and pulled up beside him. They were approaching a one-lane bridge so appellant stopped and the other car did too. Appellant said that both men got out of their cars and, after they exchanged some words about the car-wash incident, Baker hit him and they began to fight. Appellant testified that he attempted several times to get away but Baker kept on coming. He said that after Baker had got him down and banged his head against the ground, he got loose and pulled out his pocket knife and threatened Baker with it if he did not stop. He said Baker just stood there for a moment looking at him, then jumped him again. Appellant testified that he went down on his back and stuck Baker in the stomach. They rolled around and he guessed he cut Baker in the back a few times. He then broke free and tried to walk away, but Baker jumped on his back and drove his face into the ground. Appellant said his nose began to bleed; they rolled around some more; Baker got on top and had his hands against appellant’s face and he could not breathe, so he struck up at Baker twice and guessed he hit him with the knife somewhere in the side. He started “poking” at Baker and finally got loose. Both men then jumped up and Baker got in his car, turned it around in the road and left the scene. The autopsy showed that Baker’s jugular vein had been severed, his lung, spleen and liver had been punctured, and that he bled to death.
Appellant went to a car wash and cleaned up some, went to the house of a friend, who testified he helped stop appellant’s nose bleed, and after 15 to 20 minutes, appellant went to his brother’s house where he was taking a bath when police arrived and arrested him. There was testimony by a doctor, who examined appellant shortly after his arrest, that appellant had no cuts, abrasions, or lacerations that required treatment or attention.
The drawing of inferences from the testimony is for the jury and it has the right to accept such portions of the testimony as its members believe to be true and reject those they believe to be false. Richie v. State, 261 Ark. 7, 545 S.W.2d 638 (1977); see also Faulkner v. State, 16 Ark. App. 128, 132, 697 S.W.2d 537 (1985). In viewing the evidence on appeal, we look at it in the light most favorable to the appellee, Stout v. State, 263 Ark. 355, 565 S.W.2d 23 (1978), and the evidence is sufficient if the jury’s verdict is supported by substantial evidence. Milburn v. State, 262 Ark. 267, 555 S.W.2d 946 (1977).
A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting indifference to the value of human life, or with the purpose of causing serious physical injury to another person, he causes the death of any person. Ark. Stat. Ann. § 41-1503(l)(b) and (c) (Repl. 1977). Appellant claimed the defense of justification, contending he believed the use of deadly force was necessary to defend himself from Baker’s attack. This defense is afforded under Ark. Stat. Ann. § 41-507 (Repl. 1977), but the statute requires that there be a reasonable belief that the situation necessitates the defensive force employed and the defense is available only to one who acts reasonably. Kendrick v. State, 6 Ark. App. 427, 431, 644 S.W.2d 297 (1982).
Considering the number and extent of the wounds inflicted by appellant, his own testimony that he got completely loose from Baker one time before pulling his knife, the fact that there is no mention of any weapon in Baker’s possession, the evidence of no sign of injury to appellant, and the fact that 14 of the 23 stab wounds received by Baker were in his back, we think there is substantial evidence from which the jury could find the appellant guilty of murder in the second degree.
Appellant’s first point on appeal is that the trial court erred in excusing a prospective juror for cause. During voir dire, one man indicated that he would have great difficulty in voting to send someone to prison. The prospective juror was excused for cause at the request of the prosecution, and the trial court stated it was because the man seemed to have difficulty with his answers to some questions on voir dire and because he had made a disclosure on his questionnaire that he had been involved in some sort of criminal trial other than traffic but did not disclose what kind. Appellant argues there was no showing of bias and this juror should not have been excused.
The determination of the existence of actual bias is a matter for the trial court and we will not reverse absent an abuse of discretion, Henslee v. State, 251 Ark. 125, 127, 471 S.W.2d 352 (1971), which must be demonstrated by the appellant, McFarland v. State, 284 Ark. 533, 548, 684 S.W.2d 233 (1985). The state is, of course, entitled to a fair and impartial jury. Stephens v. State, 277 Ark. 113, 115, 640 S.W.2d 94 (1982). When actual bias is in question, the qualification of a juror is within the sound discretion of the trial judge because he is in a better position to weigh the demeanor of the prospective juror and his response to the questions on voir dire. Linell v. State, 283 Ark. 162, 164, 671 S.W.2d 741 (1984). The record shows that the prospective juror here told the prosecuting attorney he did not think he could ever sentence someone to the penitentiary and that it would make him uncomfortable to have to consider a range of punishment of from ten to forty years or life in prison. A prospective juror need not admit bias before the court may excuse him. Fleming v. State, 284 Ark. 307, 310, 681 S.W.2d 390 (1984). We cannot say the court abused its discretion in excusing this prospective juror in the instant case.
Next, appellant argues the trial court erred in allowing into evidence a tape recorded statement made by Baker. When Baker arrived at the Searcy police department, officers immediately determined his injuries were extremely serious. One officer observed blood spurting from Baker’s neck. A tape recorder and camera were obtained and Baker’s comments were recorded while officers and emergency medical technicians were attempting to control his bleeding. During this time Baker named appellant as his assailant, said they had been having problems over a girl, and that he did not know what had been used on him or how badly hurt he was until “now.” Several people testified to Baker’s statements and the tape recording was played for the jury. Appellant argues the trial court erred in admitting this recording either as a dying declaration or an excited utterance.
We find no error.
A.R.E. Rule 804(b)(2) provides:
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(2) Statement under belief of impending death. A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.
Appellant asserts Baker did not know he was dying. The record discloses, however, that Baker made statements several times to officers and medical personnel such as, “Please don’t let me die” and “Oh God, Oh God.” These statements could certainly be considered as evidence that he understood the gravity of his situation. To be admissible under this exception, the belief of imminent death need not be shown by the declarant’s express words alone. It can be supplied by inferences fairly drawn from his condition. Boone v. State, 282 Ark. 274, 279, 668 S.W.2d 17 (1984).
We think the statements were also admissible as excited utterances, defined by A.R.E. Rule 803(2) as “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Appellant suggests too much time had elapsed after the fight for this exception to apply. However, Baker was severely wounded, bleeding profusely, in pain and dying from injuries he had quite recently received in a fight. Clearly the court could find that he was still under the stress of the event. Preliminary questions concerning the admissibility of evidence are determined by the trial court under the provisions of A.R.E. Rule 104. We find no error in the court’s ruling allowing the introduction of the recorded statement of Baker.
Next, appellant argues the trial court erred in allowing into evidence pictures taken of Baker in the police station parking lot, at the hospital, and at the autopsy. Appellant concedes that some of the pictures were admissible to illustrate the severity of the wounds. He argues, however, that pictures taken at the hospital and the morgue were not admissible because they were highly prejudicial, inflammatory, and did not represent the true nature of Baker’s wounds because of medical and surgical procedures performed in an attempt to save his life. Appellant contends the probative value of these pictures was far outweighed by the danger of prejudice and of confusing and misleading the jury. See Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571 (1982); A.R.E. Rule 403.
The admissibility of photographs is. within the sound discretion of the trial court and it will not be reversed absent a manifest abuse of that discretion. Henderson v. State, 279 Ark. 414, 420, 652 S.W.2d 26 (1983). A photograph is admissible to corroborate the testimony of a witness, show the nature and extent of the wounds or the savagery of an attack, or when useful in enabling a witness to better describe objects portrayed or the jury to better understand the testimony. Earl v. State, 272 Ark. 5, 10, 612 S.W.2d 98 (1981). We think the photographs taken at the hospital were admissible to show the extent of the wounds because the neck, back and abdominal wounds were not observable in the pictures taken in the parking lot. In addition, the chief medical examiner of the Arkansas Crime Lab, who made photographs during the autopsy performed by him, testified that those photographs would help him demonstrate the nature and extent of the wounds. He said this is an instance in which we have to know where the real stab wounds are and what has been done in surgery to understand the nature of the wounds, and he pointed out clearly which were original wounds and which were alterations made by the medical procedure in the hospital. Furthermore, it is evident that the trial judge did exercise discretion in admitting the photographs because he refused to admit some that were offered.
Simply' because photographs are gruesome is insufficient reason to exclude them. Smith v. State, 282 Ark. 535, 540, 669 S.W.2d 201 (1984). Even inflammatory photographs are admissible in the sound discretion of the trial court if they tend to shed light on any issue or are useful to enable the jury to better understand or corroborate the testimony. Fairchild v. State, 284 Ark. 289, 293, 681 S.W.2d 380 (1984). We find no error in the introduction of the pictures of Baker.
Appellant’s next argument is that the trial court erred in admitting into evidence a knife found at his brother’s house when the appellant was arrested. The knife was found on the cabinet in the bathroom where appellant was bathing, along with a blood-stained shirt and jeans. Although the crime lab was unable to detect any blood on the knife, the medical examiner testified that the victim’s wounds were consistent with those which would have been inflicted by that kind of knife. At trial appellant said he did not know if that was his knife but it looked like his and could be the one he injured Baker with. On appeal, appellant contends the knife was not properly identified, no corroboration was presented that connected it with the crime, and that its probative value was outweighed by its prejudicial effect. It is well established that the determination of the relevancy of evidence is within the trial court’s discretion and that the appellate court will not reverse absent a showing of abuse of that discretion. James v. State, 11 Ark. App. 1, 8, 665 S.W.2d 883 (1984). Even if this knife were not the fatal weapon, the similarity between it and the weapon used would make appellant’s identity as the attacker more probable than it would be without the evidence. See Fountain v. State, 273 Ark. 457, 461, 620 S.W.2d 936 (1981). We find no error in admitting the knife into evidence.
Appellant also argues that the trial court erred in allowing Dr. Randy McComb to testify in violation of the physician-patient privilege. After appellant’s arrest he was taken to the emergency room at the White County Memorial Hospital to be examined for injury. At trial, the emergency room physician, Dr. McComb, testified he found no serious injuries when he examined the appellant and saw no cuts, abrasions, or lacerations that needed treatment or attention. The appellant contends this testimony violated the physician-patient privilege as set out in Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982). We do not agree. In that case, the Arkansas Supreme Court made it clear that under A.R.E. Rule 503 “the real protection is aimed at preventing a doctor from repeating what a patient told him in confidence.” The emergency room doctor did not testify to any confidential information given to him by the appellant in this case. But appellant contends that when the Arkansas Supreme Court held the Uniform Rules of Evidence had been unconstitutionally adopted, see Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), it reinstated the broader previous law which encompassed all conceivable information a physician could have about a patient. See National Benevolent Society v. Barker, 155 Ark. 506, 244 S.W. 720 (1922). Suffice it to say that appellant did not object to the doctor’s testimony on this ground at the trial and did not submit this argument to the trial court. In Halfacre v. State, 290 Ark. 312, 718 S.W.2d 945 (1986), the court held that Ricarte v. State “does not provide a remedy unless the issue of the validity of the uniform rules was raised in the trial court.” See also Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).
Next, appellant argues that the trial court erred in allowing the state to cross-examine a defense witness about his knowledge of two misdemeanor convictions appellant had for harassing Julie Underhill. Mickey Smith, a defense witness, had testified that appellant had a reputation for being a quiet, peaceful man. On cross-examination, the state inquired whether the witness was aware of the two convictions. Appellant argues this questioning violated A.R.E. Rule 609, which provides certain limitations on impeachment by evidence of conviction of a crime. Again, we disagree. Rule 609 applies only when one is attempting to show that the witness himself has been convicted of a crime. Applicable to the situation at hand is A.R.E. Rule 405(a) which provides that when evidence of character or a trait of character of a person is admissible inquiry may be made on cross-examination into relevant specific instances of conduct. The distinction between these two rules was explained in Reel v. State, 288 Ark. 189, 702 S.W.2d 809 (1986):
The policies behind rule 405(a) are, however, distinguishable from those underlying rule 609(a). The purpose of the cross examination of a character witness with respect to a prior offense is to ascertain the witness’ knowledge of facts which should have some bearing on the accused’s reputation. If the witness does not know that an accused was previously convicted of a crime, the witness’ credibility suffers. If he knows it but then disregards it in forming his opinion of the accused, that may legitimately go to the weight to be given the opinion of the witness.
288 Ark. at 191. See also Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986) (holding that by producing a character witness the appellant opened the door to evidence which might otherwise have been inadmissible). As pointed out in Reel v. State, an instruction limiting the use of the information gained by the cross-examination of the character witness would assist the jury in placing the testimony in its proper light. That, however, was not made an issue in the present case.
Finally, appellant argues that it was error to deny the admission of testimony by his brother and sister-in-law that when appellant appeared at their house he said that Baker chased him, ran him off the road, and persisted in giving him a beating. He contends these statements were “excited utterances” and admissible under A.R.E. Rule 803(2). In the first place, the abstract does not show that these witnesses were ever asked questions that would have elicited this information. Furthermore, we do not find a proffer of the testimony they would have given. There must, of course, be a proffer of the evidence excluded for us to find error, Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978), unless its substance was apparent from the context within which the questions were asked, A.R.E. Rule 103(a)(2). However, even if we accept what appellant says in his argument would have been the testimony of his brother and sister-in-law, we find no error in denying its admission into evidence.
In Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984), we said the basis of this exception to the hearsay rule is that a person who experiences a startling event and is still under the stress of the excitement of the event when statements are made by him will not make false statements. The evidence here discloses that a substantial amount of time had passed between the fight and appellant’s arrival at his brother’s home. Appellant had driven into town, had cleaned his face at a car wash, had driven to Mickey Smith’s house to tell him about the incident and see what he had to say about it, and after 15 or 20 minutes at Smith’s house, had driven to the brother’s house but had presence of mind enough to throw a handgun out of the car window before arriving there.
In Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987), the Arkansas Supreme Court said “it was for the trial court to determine if the statement was made under the stress of excitement, an excited utterance, or after Marx had calmed down.” 291 Ark. at 334. Under the circumstances in the case at bar, we do not think the trial court abused its discretion in refusing to admit the testimony it is suggested would have been given by appellant’s brother and sister-in-law. Marx v. State; A.R.E. Rule 104(a).
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James R. Cooper, Judge.
The appellant was convicted by a jury of theft of property, theft by receiving, and of being a felon in possession of a firearm. He was sentenced as a habitual offender and received ten years on each charge to run consecutively. He was also found guilty of possessing a defaced firearm and was sentenced to one year in the county jail, to be served concurrently with the felony convictions. For his appeal, the appellant argues that the trial court erred in allowing the jury to hear evidence of all of his prior convictions during the guilt stage of the bifurcated trial. He also argues that the trial court erred in refusing to suppress evidence of the firearms found in the trunk of his car because the search warrant was defective. We agree with both of appellant’s arguments and therefore we reverse and remand for a new trial.
On November 29, 1984, John Smith reported to the El Dorado Police Department that two royalty checks issued to his aunts had been stolen. He explained that he had left the checks in a car he rented from Marks Company and when he returned shortly after turning the car in, he found they were gone.
On December 4, 1984, Deborah Torrence called the El Dorado police and talked with Detective Carolyn Dykes. Tor-rence told Dykes that the man she had been living with, the appellant, had stolen two royalty checks from a rented car that had been returned to the Marks Company. Torrence also stated that the appellant had a .38 caliber revolver that he had stolen from a car at a gas station, and that he also had a stolen .38 revolver he told her he had bought. After an argument with the appellant, Torrence stated she threatened to turn him in to the police. Torrence last saw the guns when they were placed in a brown cassette tape case. Torrence advised Detective Dykes that she had hidden the checks on a shelf in the bedroom of the appellant’s house.
After talking further with Torrence, Dykes discovered that the checks the appellant had were the same checks that John Smith had reported as stolen several days earlier. Dykes then filled out an affidavit and got a search warrant to search the appellant’s car and his home. Dykes contacted the appellant at Marks Company, and, after showing him the search warrant, she searched the appellant’s car and found two .38 revolvers inside a tape case and some letters addressed to Shirley Ann Tatum, the appellant’s ex-wife. Dykes then arrested the appellant and they proceeded to his home, where she found the checks on a shelf in the bedroom closet.
The trial court denied the appellant’s motion to suppress and allowed the guns and letters to be introduced into evidence. On appeal, the appellant argues that the trial court erred in not suppressing the evidence seized from his car pursuant to the search warrant because the affidavit does not state facts to support the officer’s assertion that the items would be found in his car. We agree with the appellant’s argument.
In judging the sufficiency of the affidavit based on information received from an informant, the magistrate issuing the warrant must make a practical, common sense decision based on all the circumstances set forth in the affidavit. Rubio v. State, 18 Ark. App. 277, 715 S.W.2d 214 (1986). The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed to issue the warrant. Harper v. State, 17 Ark. App. 237, 707 S.W.2d 332 (1986). While inferences the magistrate may draw are those which a reasonable person could draw, certain basic information must exist to support an inference. Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983). The practical common sense approach used to examine search warrants cannot cure omissions of fact that are undisputedly necessary. Ulrich v. State, 19 Ark. App. 62, 716 S.W.2d 111 (1986). The affidavit shall set forth facts and circumstances that tend to show that the things are in the places, or the things are in the possession of the person, to be searched, A.R.Cr.P. Rule 13.1(b).
The affidavit in this case states in part:
On November 29,1984, John Smith of 602 North Jackson Street reported to the El Dorado Police Department that two (2) Tosco royalty checks issued to Annie Smith and Rosie Smith in the amounts of $322.21 and $322.22, respectively, were stolen from a rental car after he returned the rental car to its owner, Marks Company, located at 2880 North West Avenue. Mr. Smith told police that he left the described checks over the sun visor of the car and when he returned to Marks Company a short time after discovering he left the checks in the car he found they had been stolen. On December 4,1984, Deborah Torrence called the police department and told this officer that she lived at 1316 D Avenue with Larry Dewey Tatum, her boyfriend, until last night, 12/3/84. Ms. Torrence said that on or about Sunday, December 2, 1984, Tatum brought a .38 caliber revolver to the residence and told her that he had stolen the revolver from a car at a gas station in El Dorado. Torrence said that Tatum has another .38 caliber revolver in the residence and told her that he bought the gun “hot” from a man by the name of “Fish”. Torrence said she saw Tatum place the two (2) .38 revolvers in a cassette tape case, after she threatened to turn him in to authorities. Torrence told this investigator that Tatum brought other stolen property to the residence including a “Tosco” check issued to Annie Smith and a “Tosco” check issued to Rosie Smith and that Tatum told her that he took the checks from a car at Marks Company, where he is employed.
It is clear from the face of the affidavit that there are sufficient facts stated to support the search of the home. However, there is no information or facts whatsoever that indicate either the guns or the checks would be found in the appellant’s car. Therefore, the trial court erred when it refused to suppress the evidence that had been seized from the car.
The appellant’s second argument concerns the propriety of introducing prior convictions into evidence during the “guilt” stage of a bifurcated trial. Under the facts and circumstances of this case, we find that it was error for the trial court to deny the appellant’s motion in limine to exclude evidence of more than one felony conviction.
The appellant had four prior felony convictions. The trial court, after denying the appellant’s motion, also refused to allow the appellant to stipulate to one prior felony conviction. The trial court, explaining its ruling, found that the number and nature of prior convictions were relevant to the sentencing portion of the trial.
Arkansas Statutes Annotated § 41-1005 (Supp. 1985) sets out the procedure to be followed when enhancement of penalty is sought according to the Habitual Offender Act. First, the jury hears all of the evidence relative to the current charge, and then retires to deliberate. If the defendant is found guilty, the State may then present evidence of prior convictions to the trial judge out of hearing of the jury. The trial court then instructs the jury as to the number of prior convictions and the statutory sentencing range. Whether the jury is informed as to the nature of the prior convictions is within the discretion of the trial court. The jury then retires again to deliberate on the sentence.
The purpose of this bifurcated process is to protect the defendant by withholding proof of his prior convictions until the jury has found him guilty. Heard v. State, 272 Ark. 140, 612 S. W.2d 312 (1981). In this case, the defendant was not given that protection because evidence of all four of his prior convictions was introduced before the jury could deliberate on the issue of guilt.
This protection afforded a criminal defendant is so important that the Arkansas Supreme Court has mandated that, even though § 41-1005 does not apply to DWI proceedings, the evidence of prior DWI convictions should be presented in the second half of a bifurcated proceeding, after the jury has determined guilt of the offense charged. Peters v. State, 286 Ark. 421, 692 S.W.2d 243 (1985). This is true even though prior DWI convictions are an element of the offense in subsequent DWI charges. Thus, this procedure should certainly be followed in cases where § 41-1005 does apply, even where the prior convictions are an element of the offense charged.
This protection, however, must be balanced with the State’s entitlement to prove all the elements of an offense. In the case at bar, where the appellant was charged with being a felon in possession of a firearm, proof of one prior felony conviction would have been sufficient. See Ark. Stat. Ann. § 41-3103 (Repl. 1977). Thus, introduction of all the appellant’s prior convictions was unnecessary, and denied the appellant the protection of § 41-1005.
We also disagree with the State’s contention that the introduction of the prior felonies was not prejudicial. Prior convictions cannot be introduced for the purpose of showing that the accused is a bad person. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982); A.R.E. Rule 404(b). We can think of no other reason for the State to introduce more than one felony. That the State intended for the jury to believe that the appellant is a bad person is evident from the prosecutor’s closing remark that the appellant was “a five time loser caught with his hand in the cookie jar again.”
We are mindful of the fact that prior convictions may be used to impeach credibility under A.R.E. Rule 609 and are admissible for the purposes outlined in A.R.E. Rule 404; these uses are not affected.
Our holding today only limits the prosecution to proof of one prior felony conviction in its case in chief where a felony conviction is an element of the offense where the proceedings are bifurcated, and the validity of the conviction is not in dispute.
Reversed and remanded for new trial.
Corbin, C.J., and Cracraft, J., agree. | [
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Donald L. Corbin, Chief Judge.
A judgment in the amount of $4,425 plus a twelve percent penalty and attorney’s fee in the sum of $500 was entered against appellant, Farmers Union Mutual Insurance Company. Appellant argues for reversal that the trial court abused its discretion in refusing to set aside the default judgment and in overruling appellant’s motions to set aside the judgment. In its second assignment of error appellant asserts the trial court erred in entering judgment without requiring appellees to comply with ARCP Rule 55(b). We affirm.
The record reflects that appellees, James M. Mockbee and Charlotte M. Mockbee, his wife, filed a complaint in the Cross County Circuit Court against appellant which alleged that appellant had failed and refused to pay for windstorm damages to appellees’ home and carport pursuant to a policy of insurance. Appellant filed a timely answer denying the allegations of appellees’ complaint. A pre-trial hearing was conducted in this matter which appellant did not attend. The trial court set the case for non-jury trial at the pre-trial hearing. Appellant did not appear for trial and judgment was entered against it. A “Motion To Reconsider Refusal To Set Aside Default Judgment” was filed ten days after entry of judgment by appellant. The motion was denied by the trial court on the same day it was filed.
The basis of appellant’s “Motion To Reconsider Refusal To Set Aside Default Judgment” was the trial court’s failure to take under consideration Rules 4 and 12 of the Uniform Rules for Circuit and Chancery Courts in its determination that appellant received adequate notice of the trial setting. The order of the court denying appellant’s motion provided that appellant had actual notice of the trial setting but chose to ignore it.
In this case appellant filed its post-trial motion within ninety days of the entry of the judgment it seeks to have set aside. The order of the trial court refusing to set aside the judgment was also filed within ninety days of the entry of the judgment. ARCP Rule 60(b) provides as follows:
Ninety-Day Limitation. To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk.
The only limitation on the exercise of this power is addressed to the sound discretion of the court. Massengale v. Johnson, 269 Ark. 269, 599 S.W.2d 743 (1980). ARCP Rule 60(d) provides that no judgment against a defendant shall be set aside unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense. See Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (Ark. App. 1980). This court in Bunker v. Bunker, 17 Ark. App. 7, 701 S.W.2d 709 (1986) said that in order to prevail under either Rule 60(b) or 60(c), a party is required to show that it has a meritorious defense. The motion itself must assert this defense. Taggart v. Moore, 8 Ark. App. 160, 650 S.W.2d 590 (1983). A meritorious defense has been defined as:
evidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show the meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.
Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283-4 (1982).
Appellant in the case at bar only alleged it had not received proper notice of the trial setting in its motion and relied upon the authority of Rules 4 and 12 of the Uniform Rules for Circuit and Chancery Courts for its proposition. Appellant failed to raise a valid defense to the judgment in its motion pursuant to Rule 60(d), and we cannot say that the trial court abused its discretion by refusing to set aside the judgment entered against appellant.
Appellant also asserts as error the trial court’s entry of judgment against appellant because it did not receive the three-day notice required when an application for a default judgment is made under ARCP Rule 5 5 (b). In Dawson v. Picken, 1 Ark. App. 168, 613 S. W.2d 846 (1981), we found no merit to the appellant’s contention that the judgment entered was a default judgment and that the appellant was entitled to three days’ notice prior to a hearing under the provisions of ARCP Rule 55(b). We held that Rule 55(b) was inapplicable inasmuch as no motion for default judgment was filed, and the judgment was not based upon the failure of the appellant to answer or appear but was based on the complaint, answers, and evidence adduced. The result reached by this court in Dawson, supra, was specifically approved by the Arkansas Supreme Court in its recent decision of Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987). In the instant case, appellant filed an answer to appellees’ complaint but failed to appear at trial. The judgment entered against appellant was based upon the complaint, answer, oral testimony, exhibits and representation of counsel. Accordingly, we find no merit to this argument.
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James R. Cooper, Judge.
The appellant was found guilty, by a jury, of theft of property. As a habitual offender he was sentenced to ten years in the Arkansas Department of Correction. On appeal, the appellant argues that the trial court erred in refusing to grant a mistrial after the prosecuting attorney referred to him as a habitual criminal in closing arguments. We affirm.
During the case in chief for the defense the appellant testified and admitted during direct examination that he had pled guilty to two separate charges of theft in 1981 and 1982. He further stated that he pled guilty to the 1981 and 1982 charges because he was guilty, and that he pled not guilty in the case at bar because he was not guilty. During closing arguments, the prosecuting attorney referred to the prior convictions and made the following remarks:
Basically ladies and gentlemen, this is a very serious case, one passed Ms. Thane, [sic] But two, we have before us an habitual criminal. We have someone who cannot keep his hands off someone else’s property. He has been convicted not once, but twice. Now he is before you a third time and he hasn’t learned his lesson to this date.
At that point the defense counsel asked to approach the bench, but this discussion between the attorneys and the judge is not part of the record. The prosecuting attorney then resumed his argument and, after asking the jury to impose a serious punishment, indicated to the jury that he would be talking with them again. The court interrupted and the defense attorney made “the same objection” which the trial court overruled.
After the jury left the courtroom to deliberate, the appellant requested a mistrial, which was denied. The trial court then oifered to recall the jury and instruct them again, but the appellant’s counsel stated that it was not necessary. However, he did request that his motion for a mistrial be preserved.
The appellant now argues that the mistrial should have been granted because the prosecuting attorney was attempting to persuade the jury to consider his prior convictions as character evidence in violation of A.R.E. Rule 404(b). He further argues that no instruction would cure this error.
The general rule is that the prosecutor may not assert that the defendant’s character is questionable where there is no adequate justification in the evidence. Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980); Conti v. State, 10 Ark. App. 352, 664 S.W.2d 502 (1984). It is also a fundamental rule that the closing arguments of counsel must be confined to the questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions which can be drawn therefrom. Simmons v. State, 233 Ark. 606, 346 S.W.2d 197 (1961); see also Conti, supra. The trial judge has a very broad latitude of discretion in supervising and controlling arguments of counsel, and his action is not subject to reversal unless there is manifest gross abuse of that discretion. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). Even when the remarks are improper, they may not be of such magnitude as to constitute reversible error. See Gustafson, supra, where the State referred to the defendant as an “escapist”; Millerv. State, 250 Ark. 199, 464 S.W.2d 594 (1971), where the State referred to the defendant as a “con artist”; and Maxwell v. State, 279 Ark. 423, 652 S.W.2d 31 (1983), where the State referred to the defendant as a “rapist, thief and escapee.” Furthermore, the trial court is in a better position to judge and observe the prejudicial impact of closing arguments to a jury than is the appellate court. James v. State, 11 Ark. App. 1, 665 S.W.2d 883 (1984).
In the case at bar the jury was instructed that the remarks of counsel are not evidence, and that the prior convictions testified to were to be considered for credibility and not guilt or innocence. Those instructions, given by the court immediately before arguments of counsel began, were sufficient to cure any impropriety on the part of the prosecutor. Conti, supra.
Affirmed.
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Melvin Mayfield, Judge.
Appellant, Merchants and Planters Bank, brings this appeal from the action of the Hemp-stead County Circuit Court holding that the Bank of Yellville had a security interest, superior to the security interest of appellant, in a modular building still under construction.
Phoenix Housing Systems was an Arkansas corporation which manufactured modular buildings. They were similar to mobile homes except they had no chassis or wheels. The completed buildings were transported by truck and trailer to sites where they were set on a permanent foundation and became a part of the realty. While under construction, each unit was considered personal property. Appellee Jim Meador was vice-president and chief executive officer of Phoenix Housing from March 1985 until the business was closed in January 1986.
On August 28,1985, Meador, in his capacity as an officer of Phoenix Housing, negotiated a loan of $90,390.41 with Merchants and Planters Bank. The loan was secured by a security interest in all inventory, accounts receivable, and a specific contract for the sale of Unit 1014. The note was due and payable on September 20, 1985, and was personally guaranteed by Meador. The inventory security agreement provided that as long as Phoenix was not in default on the note, it had the right to sell inventory in the ordinary course of business. However, the agreement also provided that the security interest of the bank would attach to all proceeds (whether represented by cash, checks, drafts, notes, chattel paper, open accounts or otherwise) of all sales or other dispositions of borrower’s inventory. On December 18, 1985, appellant filed suit for replevin of the inventory, contending the note was in default.
Meanwhile, on September 16, 1985, the Bank of Yellville had made a loan to Jim Meador and Leigh Ann Meador for $45,000.00 and had taken a security interest in a 1985 fourplex modular home, Serial No. 1019, which was under construction. Meador paid Phoenix Housing $40,000.00 of this money as a down payment on Unit 1019. On September 12, 1985, Phoenix Housing executed a “Manufacturer’s Statement or Certificate of Origin To a Modular Home” to the Meadors. However, no further work was done on Unit 1019 and it was tendered to the Meadors several months later in an incomplete condition. It was conceded at trial that in its stage of completion the unit was not equal in value to the Meadors’ down payment.
The Bank of Yellville intervened in appellant’s suit against Phoenix Housing and Meador individually, contending that its lien on Unit 1019 was superior to the appellant’s inventory lien. Trial to the court proceeded as to Unit 1019 only. The court held that the Meadors’ purchase of Unit 1019 was in the ordinary course of business and that the lien of the Bank of Yellville had priority over the lien of the appellant.
At trial, Jim Meador testified that he had executed the loan from the Yellville bank in order to purchase Unit 1019 from Phoenix Housing for a contract price of $80,000.00. He admitted the $40,000.00 down payment was larger than a purchaser would normally make, but testified he did it to infuse funds into the failing company. Meador also said he knew none of the money would be paid to appellant. He testified further that he had been a party to the loan appellant made to Phoenix Housing and was familiar with the financing statement and security agreement. He said he knew that the security agreement covered the inventory of Phoenix, but testified he did not think the sale of that unit would violate the security agreement because of the language in the agreement which allowed the sale of inventory in the ordinary course of business as long as the note was not in default.
On September 12, 1985, when Meador claims to have purchased Unit 1019, the note to appellant was not yet due. Meador admitted that Unit 1019 was never delivered to him and testified that he also knew that under the accounting method utilized by Phoenix Housing a unit was not considered sold until it was completed, delivered, and final payment had been received. He said he also knew that work in progress was carried on the books as an asset of the company and that the books of Phoenix Housing never reflected a sale of Unit 1019 to him. On December 5,1985, Meador testified, Unit 1019 was again sold, this time to Petromark, and the contract for that sale represented the seller as Phoenix Housing.
Charles White, Phoenix Housing’s accountant, testified that according to the procedures used by him in keeping the books, a sale was not reflected on the books until the unit was delivered and, in most cases, the final payment was received. He said at no time was a sale actually recorded on the books until delivery of the unit. White also said that, according to the books of Phoenix Housing, no sale of Unit 1019 had been made. The reason for this was because the unit was unfinished and still located in the manufacturing plant.
As its first argument appellant contends the court erred in finding that there was a sale from Phoenix Housing to Jim Meador. Appellant relies on Ark. Stat. Ann. § 85-2-401 (2)(Add. 1961) which provides:
Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, ....
Since there was no delivery in the usual manner, appellant contends there was no sale. Appellees, on the other hand, argue that there was a sale because there was a definite agreement to sell Unit 1019, it was identified to the contract, title was transferred and money changed hands. Appellees insist it was not essential that delivery take place for a sale to have occurred under these circumstances. And they point to the Certificate of Origin which states that Unit 1019 “has been transferred” to the Meadors as evidence that delivery was not necessary to pass title in this case as “it was otherwise explicitly agreed.” In discussing the sale of goods to be manufactured, 3 R. Anderson, Uniform Commercial Code § 2-501:22 (3d ed. 1983), states:
Title does not pass with identification, as the seller who has not completed his manufacturing of the goods manifestly has not completed his performance “with reference to the physical delivery of the goods,” and it is at that time that title passes “unless otherwise explicitly agreed.'1'1 (Emphasis added.)
Although the issue may be close, we cannot say the trial court’s finding that title passed to the Meadors at the time the Certificate of Origin was issued is clearly against the preponderance of the evidence.
Appellant’s second point is that the evidence does not support the court’s finding that the sale to the Meadors was made in the ordinary course of business. According to Ark. Stat. Ann. § 85-9-307(1 )(Supp. 1985), a buyer in the ordinary course of business takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence. Section 85-1-201(9) defines a buyer in the ordinary course of business as “a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind,” and section 85-1-201(19) defines good faith as “honesty in fact in the conduct or transaction concerned.”
White and Summers, Uniform Commercial Code, § 25-13 (2d ed. 1980), states that at least five conditions must be met in order for one to qualify as a buyer in the ordinary course of business under section 85-9-307( 1): (1) he must be a buyer in the ordinary course; (2) he must not take the goods in total or partial satisfaction of a preexisting debt; (3) he must have bought the goods from one who was in the business of selling goods of that kind; (4) he must buy in good faith and without knowledge that the purchase was in violation of another’s security interest; and (5) the competing security interest must be one created by his seller.
Two cases citing these conditions from the White and Summers Hornbook are informative. Ex parte General Motors Acceptance Corp., 425 So. 2d 464 (Ala. 1983), held that a bank which had financed the purchase of a car from a used car dealer held a lien that was superior to the lien of the dealer’s financing company. The court said that section 9-307(1) of the Commercial Code allows a “buyer in the ordinary course of business” to take goods held for sale free of a security interest created by his seller because it is felt that such a buyer has the right to expect that a merchant has the power to sell the goods free of such a security interest, and creditors who know that goods financed by them are inventory must expect the goods will be sold and that buyers in the ordinary course of business will take the goods free of liens. On the other hand, in ITT Industrial Credit Co. v. H & K Machine Service Co., Inc., 525 F.Supp. 170 (E.D. Mo. 1981), ITT made a loan to a manufacturing company and took a security agreement on various items of equipment owned by the company. One of those items was later sold to H & K Machine Service Company for its original purchase price and H & K gave the company credit for that amount on its indebtedness to H & K. In holding that H & K did not take the piece of equipment free of the security interest of ITT, the court said H & K was not a buyer in the ordinary course of business because the equipment purchased was not inventory, it was not sold at a profit, and H & K took it as partial cancellation of a preexisting debt.
In the present case, we do not think the evidence previously set out, which is really not in dispute, will support a finding that Jim Meador was a buyer in the ordinary course of business when he purchased Unit 1019. Without restating the evidence, it is enough to say that the amount of Meador’s down payment was larger than usual; the Manufacturer’s Certificate of Origin was given to Meador before the unit was completed and before the purchase price was fully paid, both of which were not according to the usual way the matters were handled; after the sale to Meador, Phoenix agreed to refund Meador’s money and sell the unit to Petromark, and there is no evidence that such agreement was a usual way of operating; and there was a relationship between Phoenix and Meador which was not the usual customer relationship.
By this last statement we do not mean to suggest that Meador could not make a purchase from Phoenix in the ordinary course of business. The case of Crystal State Bank v. Columbia Heights State Bank, 203 N.W.2d 389 (Minn. 1973), cited by the appellees, found such a sale where the president and principal shareholder of an automobile dealership purchased a car from his own company. However, that opinion states the sale “resembled in every material way a sale out of inventory to any retail customer.” The sale to Meador, simply put, was not such a sale. Meador handled the loan from the appellant bank to Phoenix and was familiar with its details. He was personally liable on the note. He admitted that his large down payment on Unit 1019 was an attempt to infuse capital into Phoenix, and that he knew none of it would be paid to appellant. Obviously, it was to his interest to keep Phoenix operating as long as feasible in order to pay the appellant’s note for which Meador was liable. Actually, in this case, regardless of which bank wins, Meador gets his obligation to that bank reduced. We believe that Meador’s purchase falls short of the Commercial Code’s concept of a “buyer in the ordinary course of business.” We think the trial court’s finding that he was such a buyer is clearly contrary to the preponderance of the evidence.
Reversed and remanded for proceedings in keeping with this opinion.
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James R. Cooper, Judge.
This case presents a question concerning the relative rights of the two survivors to a checking account and a certificate of deposit held in the names of three persons as joint tenants with rights of survivorship. Leo Savage died on July 22,1985, survived by the appellant, his wife for eight years prior to his death, and also survived by the appellee, his daughter by a previous marriage. At the time of his death, he had a checking account and a certificate of deposit with combined balances of $19,776.73. The day after Leo Savage’s death, the appellant closed out the checking account and transferred the money to an account in her name only. Approximately one month later, the appellant cashed in the certificate of deposit and likewise deposited the funds in her separate account. The appellee brought this action against the appellant alleging a constructive trust and seeking to recover a portion of those funds. From the chancellor’s order directing the appellant to pay to the appellee a sum equal to one-half of the funds in the checking account and certificate of deposit as of the date of Leo Savage’s death, the appellant brings this appeal. For the reasons set out below, we affirm the chancellor’s decree.
The appellee testified that her father had included her name on a joint account for several years in the past because her father wanted her to have access to the funds if she needed them. She stated that, once her father married the appellant and moved to Fort Smith, he and the appellant opened the joint accounts in question, and after they had signed the signature cards for the accounts, the deceased took the signature cards to the appellee for her signature as well. She testified that her father would have wanted her to have half of the money in both of the accounts even though she made no contributions to either the checking account or the certificate of deposit. However, the appellee also admitted that the appellant, as a surviving joint tenant, had the complete right to withdraw all of the funds after Leo Savage’s death. The appellant testified that the appellee’s name was on the joint account for “emergency purposes only” and that the funds deposited in the checking account and the certificate of deposit were contributed solely by the appellant and the deceased. We find it important to note that the appellant admitted that she withdrew the funds after the appellee made demand upon her for one-half of the amounts. The appellant testified that she knew that any one of the three on the signature card could withdraw all of the money at any time and stated she believed the decedent intended for her to have such funds. Neither the appellant nor the appellee testified as to any agreement they had with respect to the accounts in question, and the appellant stated that she and the appellee had never discussed the accounts until after Leo Savage’s death.
The parties do not dispute that, pursuant to Ark. Stat. Ann. sections 67-552 (Supp. 1985) and 67-1838 (Repl. 1980), the accounts in question were held by the decedent, the appellant, and the appellee as joint tenants with right of survivorship, and that, upon the decedent’s death, the two survivors continued as joint tenants, and either could withdraw all of the funds in question. However, these statutes and the cases interpreting them concern the obligation of the financial institution in dealing with such funds. Although the bank or savings and loan may rightfully pay all the funds to either of the two survivors, it does not necessarily follow that either survivor may withdraw such funds without accounting to the other survivor for such action. Here, the chancellor found that a peculiar relationship of mutual trust and confidence existed between the surviving co-tenants, and that the appellee was intended to have a beneficial interest in these accounts. In holding that the appellant was liable to the appellee for half of the account balances, the chancellor further found that the appellant had over-reached the appellee and, accordingly, imposed a constructive trust upon the funds in question.
Constructive trusts arise and are imposed in favor of persons entitled to a beneficial interest against one who secures legal title either by an intentional false oral promise to hold title for a specified purpose and, having thus obtained title, claims the property as his or her own, or one who violates a confidential or fiduciary duty, or is guilty of any other unconscionable conduct which amounts to constructive fraud. Horton v. Koner, 12 Ark. App. 38, 671 S.W.2d 235 (1984). In Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981), this court held that there must be a confidential duty or fiduciary relationship to establish a constructive trust.
Based upon our review of the record, we cannot say that the chancellor’s finding of a confidential relationship was clearly erroneous. Andres, supra; ARCP Rule 52(a). We therefore affirm his imposition of a constructive trust.
Affirmed.
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George K. Cracraft, Judge.
Kenneth Rusin appeals from an order of the Sebastian County Circuit Court on which his complaint for liquidation and distribution of the assets of Midwest Enamelers, Inc., was denied. Because the order is not appealable, we do not reach the merits of the case.
The appellant filed a complaint against Midwest Enamelers, Inc., seeking liquidation and distribution of the corporate assets; $50,000.00 for unpaid director’s fees; and $500,000.00 in bonuses allegedly owed to the appellant. In response, appellee answered and filed a third-party complaint against Lucinda Rusin, contending that she and her husband, the appellant, were indebted to the appellee for $30,000.00 on a promissory note; had converted over $250,000.00 belonging to the appellee to their personal use; and, that, while appellant was an officer of the appellee company and his wife an employee, they had formed a competing company which caused appellee to lose $500,000.00 and for which they should be liable. The court conducted a hearing limited to the issue of liquidation of the corporate assets, after which it found that the appellant had failed to establish grounds for dissolution of the corporation and further that appellant had an adequate remedy for money damages, and denied the petition for liquidation. The court expressly reserved all of the remaining matters for trial by a jury and entered an order accordingly. The appellant appeals, contending that the trial court’s ruling that the corporation should not be dissolved was erroneous.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure provides that only final judgments and decrees are appealable. Rule 54(b) of the Arkansas Rules of Civil Procedure provides that, when multiple parties are involved or more than one claim is presented, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties or claims only upon an express determination that there is no just reason for delay and with the express direction for the entry of final judgment. Here, the order appealed from did not dismiss all the parties or direct the entry of a final judgment as there were issues remaining before it for a trial by jury. No final order as defined in Rule 54(b) was entered and no appeal may be taken at this stage of the proceedings. City of Marianna v. Arkansas Municipal League, 289 Ark. 473, 712 S.W.2d 305 (1986); ARCP 54(b).
Appellant contends that, as his motion for a new trial was denied, the appeal is properly before the court. Although Rule 2(a)(3) provides that appeals may be taken from orders refusing a new trial, that rule contemplates an appeal from an order granting or refusing a new trial in cases in which all issues have been presented and decided. It can have no application to cases involving multiple issues or claims in which some, but not all, are decided.
Appeal dismissed.
Corbin, C.J., and Cooper, J., agree. | [
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John E. Jennings, Judge.
The issue in this workers’ compensation case is to what extent is the compensation carrier entitled to subrogation as to the proceeds of a settlement between the claimant and a third party tortfeasor.
In 1982, Gerald Ford, an employee of Washington County, was injured in an automobile accident. The driver of the other vehicle was apparently at fault and was insured by Allstate Insurance Company. Public Employee Claims Division (PECD), the compensation carrier for Washington County at the time of the accident, accepted the claim as compensable and paid more than $50,000.00 in benefits.
Ford settled his personal injury cause of action with Allstate for $50,000.00, the policy limit. This $50,000.00 settlement included $4,042.26 in medical expenses previously paid by Allstate for medical bills which would have been compensable under workers’ compensation law and for which PECD would have had responsibility otherwise. Furthermore, Arkansas Blue Cross Blue Shield, Ford’s group health insurance carrier, also paid $5,323.05 in medical bills which would have been the responsibility of PECD.
Ark. Stat. Ann. § 81-1340 (Repl. 1976) provides in part:
Third party liability, (a) Liability unaffected. (1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two thirds (%) of the net proceeds recovered in such action that remain after the payment of the reasonable costs collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
(2) The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury, to which this act [§§ 81-1301 — 81-1349] is applicable, or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one third [Vi] of the remainder shall, in every case, belong to the injured employee or his dependents, as the case may be; the remainder, or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee or his dependents.
(b) Subrogation. An employer or carrier liable for compensation under this act for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for such injury or death. After reasonable notice and opportunity to be represented in such action has been given to the compensation beneficiary, the liability of the third party to the compensation beneficiary shall be determined in such action as well as the third party’s liability to the employer and carrier. After recovery shall be had against such third party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and carrier have paid or are liable for in compensation, after deducting reasonable costs of collection, and in no event shall the compensation beneficiary be entitled to less than one third [lA] of the amount recovered from the third party, after deducting the reasonable cost of collection.
The problem for the administrative law judge, and subsequently for the full Commission, was how to apply this statute in calculating the amount of subrogation to which PECD would be entitled. The costs of collection were shown to be $9,000.00.
The ALJ multiplied two-thirds times $41,000.00 (the net proceeds after costs of collection) to arrive at a gross amount available for subrogation of $27,332.00. He then deducted the amount paid by Allstate for medical bills, $4,042.26, and held the net amount available for subrogation was $23,289.74. He also required PECD to reimburse Blue Cross for the $5,323.05 which Blue Cross had paid. On appeal, the Commission purportedly affirmed the opinion of the ALJ, but in its calculations the Commission also deducted the amount of medical expenses paid by Blue Cross from the gross amount available for subrogation, leaving a net balance available to PECD of $17,966.69.
On appeal PECD argues that the Commission erred in deducting either the amount paid by Allstate or the amount paid by Blue Cross, although PECD concedes that it should reimburse Blue Cross for the medical expenses. The claimant argues that it was appropriate to deduct the amount paid by Allstate. We hold that the amount paid by Allstate for medical expenses should have been deducted, although not in the manner done by the Commission, and that the Commission erred in deducting the amount PECD was required to reimburse Blue Cross.
At the outset we must note a problem with the statute. Section 81-1340 was originally enacted as Act 319 of 1939. Section 81-1340(a)(2) originally read:
The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury, to which this Act is applicable, or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third of the remainder shall, in every case, belong to the injured employee or his dependents as the case may be; the remainder, or so much thereof as is necessary to discharge in actual amount the liability of the employer and the insurance carrier for compensation, shall be paid to such employer or insurance carrier; and any excess shall belong to the injured employee or his dependents. [Emphasis added.]
It appears likely that in compilation the underlined language was inadvertently omitted. Although the meaning of the statute as it is presently worded is clear enough to be applied, the inadvertent omission could cause confusion.
PECD contends on appeal that there is no logical reason for deducting the amount paid by Allstate for otherwise compensable medical expenses. We disagree.
When Allstate paid Ford’s compensable medical expenses, PECD benefited by not having to pay them itself. While it seems immaterial to the tortfeasor’s insurance company, it is fair both to the compensation carrier and the claimant to deduct amounts paid by the tortfeasor’s insuror for otherwise compensable medical expenses before calculating the compensation carrier’s two-thirds entitlement for subrogation.
An admittedly extreme example will illustrate the inequities which would result from an adoption of PECD’s position. Suppose, in this case, Allstate had settled with the claimant for $50,000.00, its policy limits, by paying directly $41,000.00 in otherwise compensable medical expenses and $9,000.00 to the claimant’s attorney as the costs of collection. An adoption of PECD’s position would result in its being entitled to an award against the claimant for some $27,000.00, although the claimant received nothing in hand and PECD would have already benefited by not having to pay $41,000.00 in medical expenses for which it would have otherwise had liability. This cannot be the law.
We hold that the appropriate method of calculating the compensation carrier’s subrogation award, under the circumstances of this case and under the statute, is to deduct from the gross settlement proceeds the cost of collection, and then to deduct from the remainder any payment by the tortfeasor’s insuror of otherwise compensable medical expenses paid as part of the settlement. The figure thus obtained constitutes the net proceeds of settlement and the subrogation award should be two-thirds of this amount. In the case at bar, the gross settlement proceeds minus the costs of collection is $41,000.00. From that amount the Commission should have deducted $4,042.26, the amount paid by Allstate for otherwise compensable medical expenses, to arrive at a figure of $36,957.74. Two-thirds of this amount is $24,638.49, which is the amount of subrogation to which PECD is entitled.
We fully agree with PECD that the amount it was directed to repay to Blue Cross, $5,323.05, should not have been deducted from the subrogation award. Even the claimant does not argue otherwise. The reason this amount should not have been deducted is that it had nothing to do with the settlement between Allstate and Ford and simply has no bearing on PECD’s subrogation rights.
Affirmed as modified.
Coulson and Mayfield, JJ., agree. | [
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Lawson Cloninger, Judge.
The issue on this appeal is whether the trial court’s decision that appellees, Robert and Fredricka B. Richardson, had a prescriptive easement for a gas line across the property of appellants, James D. and Leo Irene Childress, was clearly against the preponderance of the evidence. We hold that there was no easement and we must reverse.
Appellants filed suit on November 14, 1982, to quiet title to their residential lot located in Garland County. Appellants had purchased their lot in 1978, and appellees had owned the lot immediately west of appellants’ lot since 1962. The gas line servicing appellees’ residence runs east across appellants’ lot and connects with a meter located east of appellants’ lot. The line is underground and no part of it is visible. Two houses are on the lot adjacent to appellants’ lot to the east, described as the Flack property. Three gas meters are located on the boundary between appellants’ lot and the Flack property; one of the meters services appellants, one services the appellees, and one services the two houses on the Flack property.
Appellant James Childress testified that he was not aware that apellees’ gas line crossed his property until the line was inadvertently discovered by the telephone company a short time before this action was filed. Appellants had rebuilt their garage over the line without knowing of its existence. Appellee R.H. Richardson testified that he knew the line ran across appellants’ property, but that he did not know where it crossed.
In Craig v. O’Bryan, 227 Ark. 681, 301 S.W.2d 18 (1957), quoting from Volume 14, Page 98, of Words and Phrases, the Arkansas Supreme Court stated:
Easement by prescription may be created only by adverse use of privilege with knowledge of person against whom easement is claimed, or by use so open, notorious, and uninterrupted, that knowledge will be presumed, and exercised under claim of right adverse to owner and acquiesced in by him.
The trial court in this case found that it would be inequitable to require appellees to build some 550 feet of private gas line when their property has been served by the existing line across appellants’ property for more than twenty years. The court found that appellees have a right to use the line, and that the parties should share equally the cost of relocating the line. We have reluctantly arrived at the conviction that the trial court was in error.
There was evidence from which the trial court could have found that appellants’ predecessor in title was aware of the line and acquiesced in the use of it for a period of eleven years before appellants purchased their lot. Appellees contend, then, that once the easement was created, the right to the prescriptive easement is not subject to being cut off by a new purchaser. Appellees cite no Arkansas law to support their position, and since we base our decision upon another principle it is not necessary to resolve appellees’ contention.
A purchaser of real estate is charged with notice of an unrecorded easement when the existence of the servitude is apparent upon an ordinary inspection of the premises. Hannah v. Daniel, 221 Ark. 105, 252 S.W.2d 548 (1952). In Hannah, the court found that at the time Hannah purchased his property there was no physical improvement located on that property which would reasonably make it apparent that a servitude existed. The court stated:
We announced the rule in this language in Waller v. Dansby, 145 Ark. 306, 224 S.W. 615: ‘The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.’
In French v. Richardson, 246 Ark. 497, 438 S.W.2d 714 (1969), the rule laid down in Hannah was approved, but the court found that the existence of a tower and transmission lines was sufficient to put French on notice of the existence of a servitude. The court then ruled:
Had he exercised his duty to make inquiry he would have easily discovered the existence and conditions of the lease easement. He is therefore charged, under our settled law, with notice of the easement.
This rule has been applied to prescriptive easements. Armstrong v. McCrary, 249 Ark. 816, 462 S.W.2d 445 (1971).
In the present case, there was no actual notice to appellants and there was no evidence of the gas line sufficient to put appellants on notice of its presence. The line was entirely underground, and there was nothing to put appellants on notice that one of the three meters east of appellants’ property serviced appellees’ residence. Appellant James Childress testified that he was aware of the three meters, but had thought that one of the meters was his and that the other two serviced the two houses on the Flack property. Under the circumstances of this case his belief was a reasonable one.
The decision of the trial court is reversed and this cause is remanded with directions to enter an order quieting appellants’ title to the exclusion of any claim for easement for the passage of the gas line.
Mayfield, C.J., concurs.
Glaze, J., agrees. | [
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Donald L. Corbin, Judge.
Appellant, Judy Clark, contends on appeal that the trial court erred in granting summary judgment to appellee, First Colony Life Insurance Company, Inc., which had the effect of denying appellant the benefits of a $50,000.00 term life insurance policy on the life of her deceased husband. We affirm.
Philip Clark, husband of appellant, had previously been insured under a policy issued by appellee. He applied for another policy but refused it upon delivery. The first policy had lapsed for non-payment of premium.
Bill Binnion was the soliciting agent for appellee First Colony Life, and Binnion met with Clark on or about November 14, 1978, to urge him to reinstate the first policy, one for ordinary life. Clark refused, saying he couldn’t afford the premium; however, Clark indicated he would accept a term policy for $50,000.00 at a lower premium. According to Binnion, Clark “may have” given him one month’s premium in the amount of $24.93 in cash.
On returning to the office, Binnion was informed by the general agent for appellee that a new application would be necessary. Binnion filled out the application using information contained in the previous application for life insurance by Clark and apparently signed Clark’s name to the application. The application and a partial premium payment were sent to appellee by Binnion. The term policy was issued on the life of Philip Clark by appellee on January 2, 1979, and mailed to Binnion’s office on January 5, 1979. Binnion made three attempts to deliver the policy. The telephone was answered on all three occasions by appellant who informed Binnion on the first call that Clark was out of town. Binnion was informed on the second call that Clark had the flu. Appellant told Binnion on his third attempt that Clark was not available. After the third call, Binnion mailed his check for the balance of the quarterly premium in the sum of $42.67 to appellee. Philip Clark was murdered on February 4, 1979.
Appellant argues two propositions on appeal. On the one hand, it is urged that delivery of the policy to the general agent, who in turn delivered to Binnion, the soliciting agent, amounted to constructive delivery. On the other hand, it is also urged that compliance with the condition precedent pertaining to delivery was waived because the policy was mailed to the insurer’s general agent, Impaired Risk Underwriters, Inc., and the accompanying document, labeled “Policy Delivery Invoice,” had a check mark (“X”) under “Delivery Instructions.” The sentence checked provided, “Premium of $42.67 balance of first quarterly premium.” Next to this, in longhand, was inscribed, “Paid by Broker.”
Appellant asserts that the effect of this transmittal, with the accompanying invoice, amounted to a waiver of the condition precedent contained in the application requiring delivery during the lifetime of the proposed insured. Actually, no argument of waiver, as such, is made in appellant’s brief. The assertion is made that since the policy delivery invoice did not reiterate the requirement set forth in the application that delivery during lifetime was essential, “a substantial question of fact exists as to whether appellee ought to be bound by the policy.”
Both appellant and appellee rely on New York Life Ins. Co. v. Mason, 151 Ark. 135, 235 S.W. 422 (1921). In that case, Mason had applied for a policy of insurance from New York Life Insurance Company through its agent, W. J. Humph-ries. The application signed by Mason contained a stipulation that the insurance should not take effect “unless the first premium is paid and the policy is delivered to me and received by me during my life time and in good health.” The evidence reflected that on a Sunday, Humphries tendered the policy to Mason and Mason accepted the policy but left it, for his own convenience, in the possession of Humphries. The issue was whether or not the delivery of the policy on Sunday put the insurance into force. It was contended in the Mason case that the mailing of the policy from its office to its agent, Humphries, constituted a constructive delivery. The Court in Mason, supra, stated: “This would be true if the policy was mailed to Humphries unconditionally for the sole purpose of delivery to the assured, but such is not the effect of the transaction if the policy was mailed to the agent of the insurer for the performance of specified duties in making the delivery of the policy.” The Court further stated “[T]he burden was on the plaintiff to show that delivery was made by mailing the policy unconditionally to Humphries for that purpose.” The Supreme Court reversed the decision of the trial court holding that the mailing of the policy to the agent did not constitute a constructive delivery nor put the policy into force without an actual delivery to the insured in person.
In the case at bar the application for insurance contained a similar provision that delivery of the policy was conditioned upon the insured’s continued good health at the time of delivery. The appellee’s general agent’s contract required the general agent not to deliver the policy unless the proposed insured, at the time of delivery was, to the best of the general agent’s knowledge and belief, in as good a condition of health and insurability as stated in the application for the policy. Appellant contends that ap-pellee’s only condition precedent to the delivery of the policy was the collection of the balance of the premium which was referenced to in the policy invoice to appellee’s general agent. We believe the policy invoice was merely an interoffice transaction confined to the insurer and its agent and, therefore, no jury question was raised as to any waiver of good health condition on delivery.
A long line of cases decided by the Arkansas Supreme Court recognize the validity of requiring compliance with a condition precedent under which a policy must be delivered while the prospective insured is still living and in good health at the time of delivery of the policy. John Hancock Mutual Life Ins. Co. v. Henson, 199 Ark. 987, 136 S.W.2d 684 (1940); Life & Casualty Ins. Co. of Tennessee v. McCrae, 193 Ark. 890, 103 S.W.2d 929 (1937); Pyramid Life Ins. Co. v. Belmont, 177 Ark. 564, 7 S.W.2d 32 (1928).
We believe this case to be an appropriate one for the application of the summary judgment provisions authorized by A.R.C.P. Rule 56. Once a prima facie case of entitlement is shown, the party resisting the motion must come from behind the shield of formal allegation and meet proof with proof. Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982).
Affirmed.
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James R. Cooper, Judge.
This appeal results from the trial court’s reversal of the appellant’s order suspending the broker licenses of the appellees. The appellant Arkansas Real Estate Commission, after a hearing pursuant to the Administrative Procedures Act, Ark. Stat. Ann. § 5-701 et seq. (Repl. 1976), found that appellee Owens had engaged in conduct which constituted improper or dishonest dealings with purchasers of land which the appellees purported to own. The appellee Hale’s conduct in this transaction was found to be improper. The appellant suspended appellee Owens’ license for a one-year period and suspended appellee Hale’s license for a 45-day period. The circuit court reversed the Commission’s decision, finding that it was not supported by substantial evidence. We disagree with the trial court, and therefore we reverse the circuit court and reinstate the decision of the appellant.
An advertisement appeared in the classified section of a Memphis newspaper in May, 1979 advertising 41 acres of land in the St. Francis River Bottoms for sale. Upon seeing this, James Edgar, a Mississippi resident, contacted the appellees whose company name, Hale Realty Company, appeared in the ad. The ad stated that Arkansas Game & Fish had a patent to manage fish and game on the land and that the owner would provide a special warranty deed. Mr. Edgar and the appellees went to view the land which was flooded at the time, and Mr. Edgar, upon inquiry, was advised that the patent referred to in the ad gave the Game & Fish Commission only the right to manage wildlife, and that the purchaser would have all other rights incident to fee ownership, except the mineral rights. Subsequently, Mr. Edgar and his wife executed an offer and acceptance which acknowledged the existence of the Game & Fish patent. After closing, the Edgars were informed that the Game and Fish. Commission was claiming full ownership of the lands in question and also discovered that they could not secure title insurance on the property. The Edgars filed a complaint with the Real Estate Commission over this transaction, and the hearing in which the appellant suspended the appellees’ licenses followed.
For reversal, the appellant argues first that the court erred in finding that the appellees made full disclosure of the patent and therefore were not required to disclose to the purchasers prior to closing the fact the Arkansas Game & Fish Commission claimed to own the property. We agree. At the hearing before the appellant Commission, it was brought out that the appellees had attempted to sell the land in question, Lot 5 of the St. Francis River Bottoms, to the Game & Fish Commission at the same time they sold other lands in this area to the Game and Fish Commission. The Game and Fish Commission refused to purchase this particular lot for the reason that it believed the patent it had received from the federal government gave it fee ownership of the land, subject only to the reverter in the patent which would be triggered if Game and Fish failed to manage the lands as set out in the patent. Thus, the appellees were aware of the Game and Fish Commission’s claim of full ownership, failed to disclose this to the Edgars, and represented to them that the patent meant only that the Game and Fish Commission would manage the wildlife on the property. Upon inquiry by Mr. Edgar, the appellees further advised him that he could remove timber off the land, and could exercise other rights which would obviously conflict with the claim of the Game and Fish Commission. The Real Estate Commission’s finding that the appellees failed to make full disclosure of the patent is supported by substantial evidence.
The appellant’s second point for reversal is that the administrative decision that the appellees failed to disclose the Game and Fish Commission’s claim of ownership is supported by substantial evidence. At the risk of being repetitive we feel that it is clear from the findings recited above, and the evidence presented at the hearing before the appellant, that the appellees failed to disclose to the Edgars that Game and Fish were claiming more than the right to simply have an easement for wildlife management purposes. The representations made by the appellees that the Edgars would have all rights incident to full ownership were obviously made with knowledge that the Game and Fish Commission at the very least disagreed with this position, and had a U.S. Government patent which specifically referred to Lot 5 to back up its claim. With this in mind, we feel the appellant’s finding that the appellees should, at the very minimum, have at least informed the Edgars of this claim, was supported by the evidence presented at the hearing.
The appellees contend that because the appellees were not employed by the Edgars, they were under no duty to deal fairly with all parties to the transaction. However, in Black v. Arkansas Real Estate Commission, 275 Ark. 55, 626 S.W.2d 954 (1982), the Arkansas Supreme Court held that where a broker sells his own land but conducts the transaction in his real estate office where his license is prominently displayed, the Commission has the authority to discipline him although he is performing acts which do not require a license. Here, the appellees took out the advertisement under the name of their real estate company and executed the offer and acceptance in their office, where, by law, they must display their licenses. It is clear from the Edgars’ testimony, they were relying upon the appellees knowledge as real estate brokers in purchasing the land without consulting an attorney or another person knowledgeable in such matters.
In reviewing the actions of an administrative board or agency, the circuit court’s review of the evidence is limited to a determination of whether there was substantial evidence to support the action taken. On appeal to this court, our review is similarly limited to a determination of whether the action of the board or agency is supported by substantial evidence. Arkansas Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W.2d 34 (1979). Substantial evidence has been 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, Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W.2d 21 (1979). Considering the evidence as a whole, we cannot say that the decision of the appellant was not supported by substantial evidence. On the contrary, we find that there was abundant evidence from which a reasonable mind could conclude that the actions of the appellees in failing to fully disclose the claim of the Arkansas Game and Fish Commission to the Edgars was improper, and in the case of appellee Owens, dishonest. Therefore, the decision of the circuit court is reversed and the case is remanded to the circuit court with directions to reinstate the order of the Arkansas Real Estate Commission.
Reversed and remanded.
Mayfield and Cloninger, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
This is an appeal from a declaratory judgment action. The appellant owned four motor vehicles. The appellee issued a comprehensive automobile policy providing insurance coverage on each vehicle, and appellant paid separate premiums for uninsured motorist coverage in the minimum amount of $10,000.00 per person for each vehicle.
While driving one of the insured vehicles, the appellant was seriously injured in an accident with an uninsured motorist. Seeking to recover as much of his expense and damage as possible, appellant claimed coverage under each of the four policies. Based upon the pleadings and briefs of counsel the trial court entered a judgment declaring that appellant could not "stack” the uninsured motorist coverage but could recover the limits on only one coverage. We do not agree.
The policy in question contained an "other insurance” clause which provided:
[I]f the insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which this Coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.
Appellant contends that this “other insurance” clause does not apply to other uninsured motorist policies issued by the same company and, therefore, cannot limit his uninsured motorist coverage to $10,000.00. Appellee, however, relies on M.F.A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S.W.2d 742 (1968), which it claims takes a "position” against stacking in Arkansas. We do not believe Wallace supports the appellee’s contention in this regard.
In Wallace, the Arkansas Supreme Court simply held that a clause in an automobile insurance policy which limited the company’s liability to the maximum limits of any one policy was not repugnant to the Arkansas uninsured motorist statute, Ark. Stat. Ann. § 66-4003 (Repl. 1980). The particular clause the court considered in Wallace provided:
5. Other Automobile Insurance in the Company — With respect to any occurrence, accident, death, or loss to which this and any other automobile insurance policy issued to the named insured or spouse by the Company also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one policy. [Emphasis added.]
Thus, it can be readily seen that Wallace only validated a clause in a policy that limited the company’s contractual liability to the minimum required by law. It does not prohibit stacking.
Wallace was considered by the United States District Court for the Western District of Arkansas in Woolston v. State Farm Mutual Ins. Co., 306 F. Supp. 738 (W.D. Ark. 1969), where two policies had been issued by the same company. The court said the “other insurance clauses” in each policy would give it no trouble in a situation involving two or more companies but it had “considerable difficulty in this case because only one insurance company is involved.” The court pointed out that this problem was not before the Supreme Court of Arkansas in the Wallace case because “the ‘other insurance clause’ in that case specifically referred to other insurance issued to the named insured or his spouse ‘by the company’.” The court explained the problem in the case before him in this way:
In a context other than uninsured motorist coverage, an insured is entitled to recover his total loss up to the limits of all available, valid coverage, and the loss is then prorated between or among his insurers on the basis of the proportion of the insurance provided by each to the total coverage provided by both or all. In such a case if the insured has two policies issued by the same company there is no practical point in the company prorating the loss between its two policies; it simply pays the loss up to the limits of both policies. Thus, in the conventional situation the “other insurance clause” in a particular policy ordinarily assumes the existence of other insurance issued by another insurance company.
As has been pointed out, however, defendant’s policy provisions seek not only to prorate the loss but also to fix the limit thereof; and the defendant seeks to limit its liability under each of its policies by reference to the limits of its other policy on the theory that the other policy is “other insurance.”
The court went on to find the “other insurance clause” ambiguous, that it must be construed most strongly in favor of the insured, and that stacking should be allowed.
In Dugal v. Commercial Standard Insurance Co., 456 F. Supp. 290 (W.D. Ark. 1978), the federal district court had a case with an “other insurance” clause identical to the one in the instant case. In that case, the insured’s two-year-old daughter was killed when she was riding on a tractor with her grandfather and was struck by a car being driven by an uninsured motorist. The child’s father had a policy that provided uninsured motorist coverage for twelve separate vehicles and he had paid a premium calculated on each one. The court considered whether the “other insurance” clause limited the company’s liability to $5,000 or whether it could be interpreted to provide a $5,000 limit for each policy, thereby providing maximum coverage of $60,000. After a comprehensive review of Arkansas law, the court concluded that the appellant should recover under each uninsured motorist policy because premiums had been paid by the insured for each policy. The court said:
Had [the insurance company] wished to preclude any “stacking” under these decisions, it had merely to follow the language used in the Wallace policies. Having failed to do so, it must suffer the consequences of the language of the policy being construed against it, the exact language of the policy having previously been held ambiguous.
We think the Woolston and Dugal opinions are sound and persuasive. Our attention has not been called to an Arkansas appellate court case that reaches a different result in the same factual situation.
The appellee says, however, that the “other insurance clause” is not the only clause that excludes stacking, and that the “Limits of Liability” section does the same thing with this provision:
Regardless of the number of automobiles to which this policy applies, the limit for uninsured motorist coverage stated in the declarations as applicable to each accident is the total limit of the company’s liability for all damages because of bodily injury sustained by any one or more persons as the result of any one accident.
The appellant’s answer is that the above provision does not prevent stacking in this case because, first, he paid four separate premiums for the uninsured motorist coverage on his four vehicles. He points to the policy provision that states “When two or more automobiles are insured hereunder the terms of this policy shall apply separately to each. . . .” It is appellant’s contention that this provision and the fact that he paid separate premiums for the coverage on each vehicle precludes the appellee from claiming that the limit for one coverage applies “regardless of the number of automobiles to which this policy applies.” We agree.
The appellant also points out that appellee is really arguing “regardless of the number of insured automobiles to which this policy applies” but the contract provision leaves out the word “insured” and thus appellee’s argument falls. Other points are made by appellant but we need not discuss them as we agree that the provision of the “Limits of Liability” section relied upon by the appellee does not prevent “stacking” the coverages for the four vehicles involved.
We reverse and remand for proceedings consistent with this opinion.
Cooper and Cloninger, JJ., agree. | [
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Donald L. Corbin, Judge.
On June 15, 1980, the appellant, Billy Ray Cook, attended a rock music festival in Cleburne County near Heber Springs, Arkansas. He engaged in “horseplay” with some male companions and cut Cleve Wooley with a knife. Appellant was charged with violating Ark. Stat. Ann. § 41-1601, battery in the first degree. On December 17, 1980, appellant was found guilty of battery in the first degree by a jury and his punishment was fixed at twenty years imprisonment and a $15,000 fine. We affirm.
Appellant raises three points for reversal. First, appellant argues that the trial court erred in allowing the State to place into evidence a conviction for assault with intent to kill for the purpose of testing his credibility.
During the State’s cross-examination of appellant, the prosecuting attorney asked appellant about three prior convictions: burglary, attempted burglary and assault with intent to kill.
Arkansas Uniform Rules of Evidence 609(a) states the following:
General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the Court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Appellant contends that the introduction of the prior convictions of assault with intent to kill was error because (1) it is similar in nature to battery, the charge involved at the trial; (2 ) there were other convictions which could have been used to attack the appellant’s credibility; (3) the nature of assault with intent to kill does not affect the appellant’s truthfulness or veracity; and (4) the prejudicial impact outweighed the probative value.
The introduction of prior convictions of a defendant under Rule 609(a) is for the purpose of attaching his credibility. The legitimate purpose of impeachment is to show background facts which bear directly on whether jurors ought to believe the accused rather than other and conflicting witnesses; not to show that the accused who takes the stand is a “bad” person. Gordon v. US., 383 F. 2d 936 (1967). Rule 609 provides that the trial judge must determine if the probative value of a conviction outweighs its prejudicial effect to the accused. Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979).
In the instant case, appellant’s trial counsel did not object to the introduction of this particular conviction but only to the form of the question and cannot, therefore, raise this issue the first time on appeal Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977). In fact, appellant’s trial counsel stated, “[N]othing is admissible as to prior convictions other than any conviction showing propensities for the same type of offense is my argument, and anything else I would object to.” This is the point that the appellant’s trial counsel should have relied upon to have the prior assault with intent to kill conviction excluded. We note that appellant is represented by different counsel on appeal. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980).
Appellant’s second contention is that the trial court erred in allowing the State to improperly question him concerning prior convictions. During the cross-examination of the appellant, the Prosecuting Attorney introduced appellant’s three prior convictions and asked if he had any others. The appellant replied that those were all that he could recall at the time. The Prosecuting Attorney then said, “Well, I’ll give you some time to think.”
Appellant maintains that this method of examining a witness or party concerning prior convictions for the purpose of impeaching credibility is improper. Appellant contends that the answer given was sufficient response to the question and that if the prosecution had evidence of other convictions, it had a duty to produce it.
Under Rule 609, the prosecutor may, under certain circumstances, ask the accused about prior convictions but he must ask such questions in good faith. Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974); Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974).
The prosecutor explained that he had information from the Pulaski County Prosecutor’s office that indicated appellant may have been convicted of other violations under an alias. The trial court made the explicit finding that the question was made in good faith and we find no error here.
Finally, appellant alleges that the evidence was insufficient to sustain the conviction of appellant. Ark. Stat. Ann. § 41-1601 (1)( a) provides the following:
(1) A person commits battery in the first degree if:
(a) with the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon; ....
The elements set forth in the statute are purpose, serious physical injury and use of a deadly weapon. Appellant admitted that the knife involved in the instant case is a deadly weapon pursuant to the statute, but disputes the State’s proof as the other two elements — purpose and serious physical injury.
The “purpose” element was established through the testimony of three witnesses: Scott Skarda, Kent Skarda and Dr. Wesley Ashbrenner. Scott Skarda testified that he witnessed a scuffle, although he did not actually see the cut. He stated that after the scuffle he saw the appellant holding the knife and asking the victim, “if he wanted some more.” This was also testified to by Kent Skarda. It could logically be inferred by the jury that appellant was referring to the knife when he made this statement. Dr. Ashbrenner testified, during cross-examination by defense counsel, that the victim told him that his friends had done this to him on purpose.
The appellant further argued that the State failed to prove that the injury sustained by the victim was a “serious physical injury” within the meaning of the statute. Dr. Ashbrenner described the injury as extending from the “belly button” area around to the left hipbone, a length of about ten inches. He also described the wound as relatively extensive. He testified that the cut extended through the fat layer into the muscle layer, a depth of about three inches, but did not extend into the abdominal cavity. There was sufficient evidence of a serious physical injury to allow the jury to make its determination. In determining the sufficiency of the evidence on appeal, the Court views the evidence in the light most favorable to the appellee and affirms if there is any substantial evidence to support the jury’s verdict. Lunon v. State, 264 Ark. 118, 569 S.W. 2d 663 (1978); Chaviers v.State, 267 Ark. 6, 588 S.W. 2d 434 (1979).
Affirmed.
Mayfield, C.J., concurs.
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George K. Cracraft, Judge.
The appellant, Johnce L. Copeland, appeals from a decree granting appellee, Charlsa M. Copeland, a divorce, contending that the appellee failed to state or sufficiently corroborate her grounds for divorce, and that the chancellor erred in awarding properties to their son, Steve Copeland, who was not a party to the action. We agree.
The parties were married in 1946 and now have two grown children. During the course of the marriage the parties separated on more than one occasion and thereafter became reconciled. On October 3, 1979, the appellee finally separated herself from the appellant and remained separate and apart from him since that date.
On May 15, 1980, the appellant filed an action for divorce against the appellee alleging general indignities as his ground for divorce. The appellee answered that complaint and counterclaimed for divorce, also alleging general indignities. At the trial of the cause the appellant elected not to pursue his complaint and the matter was presented on appellee’s cross-complaint. At the close of the evidence the chancellor denied appellant’s motion to dismiss the counterclaim for appellee’s failure to corroborate her grounds; granted her divorce, and made a division of the property of the parties. In the decree, however, he awarded Steve Copeland, a child of the parties who was not a party to the action, certain personal property which appellee testified was his.
Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated. Ark. Stat. Ann. § 34-1212 (Supp. 1979) authorizes the granting of a divorce when one spouse shall have proved that the other has offered such indignities to the person as to render his or her condition in life intolerable. Personal indignities have been defined in the cases as rudeness, unmerited reproach, contempt, studied neglect, open insult and other plain manifestations of settled hate, alienation and estrangement, so habitually, continuously and permanently pursued as to create that intolerable condition contemplated by the statute. Sutherland v. Sutherland, 188 Ark. 955, 68 S.W. 2d 1022. It is also well settled by our cases that the testimony of the plaintiff as to the ground for divorce is not sufficient and that same must be corroborated by other testimony. Our cases have also held that in a contested matter in which it is apparent that there is no collusion that the corroboration required may be relatively slight. Coffey v. Coffey, 223 Ark. 607, 267 S.W. 2d 499. The testimony offered in this case simply does not meet the requirement of the rules regarding corroboration.
The appellee testified that her marriage with the appellant had been a bad one for the past ten years and had reached a point where it was impossible for them to live together. She testified that the conditions under which she lived with him were detrimental to her health, that he had threatened her and that she was afraid of him. She did not testify as to the nature of the threats or why she was in fear. She testified further that her children were not welcome in the home and that this caused her concern. The only corroborating testimony offered was that of the daughter of the parties, Mary Dennis. Although she testified that the parents had been having difficulties for the past ten years, which were becoming progressively worse, she did not testify as to what the cause of those difficulties was, who was at fault, nor of any acts of either party to the other which fall within the definition of the statutory grounds. She did not mention any threats made to the mother or any occasion on which she or her brother were made to feel unwelcome in the home.
Corroborating testimony may not consist of mere generalities, opinions, beliefs and conclusions on the part of the witness but must be directed toward specific language, acts and conduct. If it is not so directed it is not sufficient. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598. Here the corroborating witness disclosed no facts or actions which would indicate a cause for the estrangement or where the fault lay.
Corroboration as required by laws of divorce is testimony of some substantial fact or circumstance, independent of the statement of a complaining spouse, which leads an impartial and reasonable mind to believe that material testimony of that spouse is true. Where a particular fact or circumstance is vital to complainant’s case, some evidence thereof in addition to complainant’s testimony is necessary to constitute corroboration. Gabler v. Gabler, 209 Ark. 459, 190 S.W. 2d 975. Here, Mary Dennis’s testimony goes no further than to show that the appellee’s statement that she could no longer live with the appellant was probably true. The mere want of congeniality and constant quarrels are insufficient to constitute general indignities justifying divorce. Settles v. Settles, 210 Ark. 242, 195 S.W. 2d 59. That parties to a marriage are not likely to live together again does not warrant the granting of a divorce on these grounds. Lipscomb v. Lipscomb, 226 Ark. 956, 295 S.W. 2d 335.
We also agree with appellant that the chancellor erred in awarding disputed items of personal property to the son of the parties who was not himself a party to the action. 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. Lance v. Mason, 151 Ark. 114, 235 S.W. 2d 394. In this case neither was done. The court might also have simply found that the disputed property belonged to neither contending spouse. The trial court had no authority, however, to award the property to a stranger to the action.
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Donald L. Corbin, Judge.
Appellant, Bob Robertson, appeals a Perry County jury verdict of driving a motor vehicle while intoxicated. The jury recommended that appellant receive a sentence of 24 hours imprisonment in the county jail; pay a fine of $500.00 and suspend appellant’s driving privileges for a period of six months. We affirm.
The sole contention for reversal asserted by appellant on appeal is that the trial court erred in admitting the breathalyzer test unaccompanied by a written “waiver of rights” form. In this regard, appellant relies upon Ark. Stat. Ann. § 75-1045(c)(3) (Supp. 1983). He asserts that a written waiver of rights form is a mandatory prerequisite of the foundation needed to be laid prior to introduction of any test results.
Ark. Stat. Ann. § 75-1045 provides in part:
(a)Any person who operates a motor vehicle in this State shall be deemed to have given consent, subject to the provisions of subsection (c) of this Section, to a chemical test or tests of his or her blood, breath or urine for the purpose of determining the alcohol or controlled substance content of his or her blood if:
(b)Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by paragraph (a) of this section and the tests may be administered subject to the provisions of subsection (c) of this section.
(c)(3) 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 or tests in addition to any test administered at the direction of a law enforcement officer. The law enforcement officer shall advise such person of this right. The refusal or failure of a law enforcement officer to advise such person of this right and to permit and assist the person to obtain such test or tests shall preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.
Officers Johnston and Shackelford testified that appellant signed a waiver of rights form. Although the State was unable to produce or introduce such a consent form and waiver of rights, both officers testified that appellant was advised of his rights and signed the consent form.
It is clear that the above statute requires that a person be advised of his or her right to a second test, but it does not dictate that a written waiver be obtained, which appellant suggests is essential to laying a proper foundation. The record does not reflect that appellant undertook to avail himself of a second test. Deputy Sheriff Shackelford specifically noted that appellant was advised that he could, at his own expense, have a blood or urine test and assistance in obtaining such a test. Officer Shackelford noted that he explained it twice and that each time appellant stated that he knew what he was doing and knew his rights. The officers also testified that there was no doubt in their minds that appellant “knew what he was doing.” In addition, the officers testified that a rights form was signed by appellant and, during cross-examination, Trooper Johnston stated that the signed form was presented in municipal court. The record reflects that Trooper Johnston had testified earlier, without objection, as to the results of the breathalyzer test.
Clearly there is no error properly demonstrated in the facts of the instant case. Accordingly, we hold that the trial court properly admitted the results of appellant’s breathalyzer test.
Affirmed.
Cloninger and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellee, a Florida corporation, sold certain lands in Arkansas to the appellant, an Arkansas corporation, in April of 1980. In connection with this sale, the appellant executed a promissory note which was secured by a mortgage on the land. At the time of this transaction, the appellee was qualified to do business in Arkansas as a foreign corporation, but later its authorization to conduct business in Arkansas was revoked based on its failure to pay its franchise taxes. This foreclosure action was commenced in July of 1983 by the appellee. The appellant sought dismissal of the action, alleging that the appellee had no capacity to sue in Arkansas to enforce its contracts by virtue of the fact that its authority to do business in this state had been revoked. This motion was denied, judgment was entered against the appellant for the debt, and foreclosure of the mortgage was also ordered. From that decision, comes this appeal.
For reversal, the appellant argues that the trial court was in error in denying its motion to dismiss based on the appellee’s lacking the capacity to sue to enforce its contracts in this state. This argument seems to be based on the “Wingo Act,” Ark. Stat. Ann. § 64-1201 (Repl. 1980), although this statute is not cited by the appellant in its. brief. The appellant cites two cases in support of its argument that the appellee ceased “to have a jural existence” when its authority to do business in Arkansas was revoked. See Sulphur Springs Recreational Park, Inc. v. City of Camden, 247 Ark. 713, 447 S.W.2d 884 (1969); Moore v. Rommel, 233 Ark. 989, 350 S.W.2d 190 (1961). In both of these cases cited by the appellant, the corporations involved were Arkansas corporations whose domestic corporate charters were revoked and they unquestionably ceased to exist as corporations in this state or any other. However, in the case at bar, the corporation involved is a Florida corporation which was, at the time the note and mortgage was executed, qualified to do business in Arkansas. Subsequently, the corporation no longer was actively involved in its Arkansas operations and therefore allowed its authority to expire. However, we cannot hold, nor can we find any authority to support the proposition that the appellee cannot enforce the valid obligation of the appellant on the note and mortgage simply because the appellee no longer is a registered foreign corporation doing business in Arkansas.
Affirmed.
Corbin and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant real estate broker sued the appellee for his alleged wrongful revocation of an exclusive listing contract which covéred the Rib Rack BBQ restaurant. The trial court found that the appellant was entitled to 50% of the liquidated damages specified in the contract. On appeal, the appellant argues that he is entitled to the total liquidated damages, and, on cross-appeal, the appellee argues that the appellant should only recover his actual damages. We agree with the appellee and therefore we affirm.as to the .direct appeal, and we reverse on the cross-appeal. The case is remanded to the trial court for a new trial on the issue of the appellant’s actual damages.
On January 5, 1982, the parties entered into the exclusive listing contract, with the listing price set at $24,500.00. The commission was fixed at 10% of the selling price, or $3,500.00, whichever was greater. The contract provided that the commission was due if the listing contract was cancelled or the property withdrawn from the market during the listing period. On January 22,1982, the appellee notified the appellant that he was withdrawing the property from the market. The appellant made demand for the $3,500.00 commission, the appellee refused to pay, and this suit resulted. The trial court, as noted above, awarded the appellant $1,750.00 plus interest.
For reversal, the appellant argues that the trial court . erred in finding the stipulated sum was a penalty, since the contractual provision had resulted from a mutual agreement, damages were impossible to predict, and the sum agreed to was a reasonable estimate of just compensation for the appellant’s damages.
In Earls v. Long, 224 Ark. 57, 271 S.W.2d 784 (1954), the Arkansas Supreme Court stated:
The law is well settled that when a real estate broker has an exclusive listing for a definite time, then if the landowner wrongfully cancels the contract before the time expiration, the broker may sue either (a) for the commission he would have earned if he found a purchaser ready, able and willing to buy according to the terms of the contract; or (b) for damages for wrongful revocation. Nance v. McDougald, 2Í1 Ark. 800 202 S.W.2d 583; Manzo v. Park, 220 Ark. 216, 247 S.W.2d 12.
In Manzo v. Park, supra, the Court held that the commission can only become the broker’s measure of damages when he can prove that he found a buyer ready, willing and able to purchase on the seller’s terms. In the case at bar there was no proof, and the appellant admits, that he did not produce a ready, willing, and able buyer. Therefore, the only recoverable damages are those which proximately resulted from the seller’s wrongful cancellation of the listing contract. See, 12 Am.Jur. 2d, Brokers, § 64.
Generally, the rule as to liquidated damages is that, where a contract is of such a nature that the damages resulting from a breach are uncertain and difficult to prove, the amount agreed upon by the parties is held to be liquidated damages. However, where the sum agreed upon bears no reasonable relationship to the damages which likely would result following a breach, the amount agreed upon will be held to be a penalty. Quaile & Co. v. William Kelly Mining Company, 184 Ark. 717, 43 S.W.2d 369 (1931). In the case at bar, the trial court found that the sum agreed upon by the parties, $3,500.00, was a penalty. We agree that the sum agreed upon bore no reasonable relationship to the actual damages likely in the event of a breach. However, we disagree with the trial court’s decision to award one-half of that amount, since the sum of $1,750.00 does not bear any reasonable relationship to the damages likely to be incurred in the event of a breach, that was not the sum agreed upon by the parties, and there is no proof showing that sum to represent the broker’s actual damages.
Where we find the trial court’s findings of fact to be clearly erroneous or against the preponderance of the evidence, we must reverse. ARCP, Rule 52(a). We reverse and remand this case for a new trial on the issue of the actual damages suffered by the appellant because of the breach of the listing contract by the appellee.
Affirmed in part, reversed in part, and remanded.
Mayfield, C.J., and Cloninger, J., agree. | [
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Tom Glaze, Judge.
Appellant sued appellee, Greene County, to recover $7,500 bail he had posted for himself in 1977. The circuit court granted the appellee’s motion for summary judgment in the suit, and appellant appeals the decision. We affirm.
In July of 1977, appellant paid a $7,500 bail to appellee to guarantee a court appearance the following December. Appellant did not appear in court when summoned in December of 1977. On March 1, 1979, the Sheriff of Greene County received notice from federal prison officials that appellant was in their custody in Texarkana, Texas. In May of 1979, the circuit judge signed an order directing that appellant’s bail be forfeited and issued a summons for appellant to appear and show cause why the bond should not be forfeited. This summons was filed non est with the circuit clerk’s office on December 3, 1979. In February. of 1980, appellee dropped its criminal charges against appellant.
Appellant admits that he forfeited his bail by failing to appear, in December of 1977; he seeks to retrieve the money by the operation of Ark. Stat. Ann. § 43-733 (Repl. 1977). This statute prohibits the forfeiture of bail money if the principal of the bailment is incarcerated. Appellant argues on appeal that hé was unable to make this statutory argument in the show cause hearing ordered in May of 1979 because appellee failed to notify him of the hearing, as required by Ark. Stat. Ann. § 43-727 (Repl. 1977), which states:
No pleadings are required on the part of the State but the clerk shall issue a summons against the bail requiring them to appear within 20 days, to show cause why judgment could not be rendered against them for the sum specified in the bail-bond, on account of the forfeiture thereof; which summons shall be executed as in civil actions and the action proceed as an ordinary civil action.
Appellant argues that this notice was impliedly part of the bail bond contract he entered into with the appellee and that the appellee breached the contract when it failed to notify him of the show cause hearing when it could easily have done so because it knew he was in federal prison in Texarkana, Texas. According to the appellant, the failure of the appellee to notify him of the show cause hearing, combined with his probability of success in retrieving the bail money in the hearing are genuine issues of material fact such that appellee’s motion for summary judgment should not have been granted below.
We disagree with appellant’s contentions. He has failed to prove two crucial facts: (1) that he actually was incarcerated in December of 1977, and (2) that he is within the category of persons protected by the notice provisions of § 43-727.
Although appellant claimed to have been in federal prison in December of 1977, when he was scheduled to appear in Greene County Circuit Court, he put forward no proof below that he was in federal prison at that time. A document entitled Agreement on Detainers submitted into evidence by appellant reveals that he began serving a federal prison sentence in November of 1978, almost one year after he failed to appear in Greene County Circuit Court. Appellant put on no proof of his whereabouts during the period from when he posted bail in July, 1977, until he entered federal prison in November, 1978. Other documents from the federal prison in Texarkana prove that appellant was there as of March 1, 1979; however, even these documents are not in the form of a “sworn affidavit,” as required by § 43-733. Only if appellant could prove he was in federal prison in December of 1977 could he avail himself of the provisions of § 43-733 because, by operation of Ark. Stat. Ann. § 43-723 (Repl. 1977), the appellant forfeited his bail in December of 1977 by failing to appear in appellee’s circuit court. This statutory forfeiture is not abrogated by any subsequent show cause orders. Craig v. State, 257 Ark. 112, 514 S.W.2d 383 (1974). Given the appellant’s admission that he forfeited his bail and his failure to provide any proof that his bail should not have been forfeited because he was in prison at the time of the forfeiture, we agree with the circuit judge below that there are no genuine issues of material fact in this case and that appellee is entitled to a judgment as a matter of .law.
As for the second point, we note that § 43-727, supra, on its face, appears to provide notice of show cause hearings to professional bail bondsmen or others who post bail for defendants and not to defendants, like appellant, who post their own bail. Examination of related statutes, such as Ark. Stat. Ann. § 43-716 (Repl. 1977) shows that "bail” as it is used in § 43-727 refers to someone other than the defendant. The summons required by § 43-727 is intended to inform those who post bail for others that unless they produce the defendant within twenty days (who has, of course, already forfeited his bail by his own nonappearance), they will be liable for the defendant’s bail.
Appellant’s interpretation of the requirement of notice of a show cause hearing would produce results unintended by the Arkansas General Assembly. According to appellant, the purpose of the statute is to require the State to notify defendants who posted their own bail but did appear in court that they must return to court to show cause why judgment should not be rendered against them for the bail. Such defendants are of two types: (1) those who never intend to make it to the court on time — that is, those who “jump)” bail, and (2) those who truly intend to appear in court but cannot for some reason. The first group, those who forego their day in court, forfeit their bail when they fail to appear and by operation of § 43-723 judgment is automatically entered against them. Obviously, § 43-727 is not intended to protect them. The second group, those defendants who in good faith intend to make their court appearances, will undoubtedly explain their absences to the court without a reminder from the State that they need to do so.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Lawson Cloninger, Judge.
Appellant was charged with theft by deception of an amount in excess of $2,500, a class B felony, in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). Specifically, appellant was accused by Arkansas Social Services of receiving welfare benefits in an amount in excess of $8,000 by fraud. At her trial, in which she waived a jury, a witness called by the State was asked by the prosecutor to testify to the amount of welfare benefits paid to appellant. The trial court sustained appellant’s objection to the competency of the witness to testify on the matter, and following a discussion with the parties, the court granted a continuance of the case for three weeks so that the State might call the proper witness. Appellant’s objection to the continuance was overruled. The trial resumed and appellant was found guilty and sentenced to twenty years in prison. Imposition of sentence was suspended conditioned upon restitution to Arkansas Social Services.
The sole issue on this appeal is whether the trial court erred in granting the continuance. We find no error, and we affirm.
The granting or denial of a continuance is within the sound discretion of the trial court “and will not be reversed absent a clear abuse of that discretion amounting to a denial of justice.” Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983). The appellant bears the burden of demonstrating that the trial court erred in its' ruling on a motion for a continuance and one asserting error must show a clear abuse of discretion. Branham v. State, 274 Ark. 109, 623 S.W.2d 1 (1981). A ruling on a motion for a continuance does not constitute grounds for reversal unless prejudice to the complaining party can be proved. Christian v. State, 6 Ark. App. 138, 639 S.W.2d 78 (1982).
The trial judge stated that he believed that a failure in communication between the prosecutor and appellant’s counsel rendered a continuance necessary. Appellant’s only allegation of prejudice was that her welfare benefits had been discontinued pending her trial for welfare fraud and that she would be in dire straits financially and was “hoping this matter would be cleared up today.” The substance of appellant’s allegation of prejudice appears to be that she would suffer financially if an acquittal were delayed. That possibility of prejudice was one of the factors weighed by the trial court before granting the State’s motion, and the action of the trial court was a proper exercise of discretion.
Appellant’s argument that the granting of a continuance subjected her to double jeopardy is without merit. She cites as authority Downum v. United States, 372 U.S. 734 (1963), which held that a trial court had abused its discretion and subjected the defendant to double jeopardy in discharging one jury and impaneling a second two days later because of the absence of a prosecution witness. Downum is inapplicable to the present case. Here, the proceedings were merely continued and then resumed, not terminated and then begun anew. Ark. Stat. Ann. § 41-106 (Repl. 1977) provides, in pertinent part, that a former prosecution is a affirmative defense to a subsequent prosecution for the same offense if the former offense was terminated without the consent of the defendant. However, a continuance is not a termination, and § 41-106 would not be applicable in this instance.
We find no evidence of discretionary abuse or prejudice.
Affirmed.
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Per curiam.
Petitioner, Virginia Todd, has caused to be filed in this Court a Petition for Writ of Certiorari and Application for Stay of the Trial Court’s Grant of Habeas Corpus Relief pending a decision on the merits in this Court.
Petitioner makes no allegations which, even if supported by the record, would compel a finding by this Court that the trial judge’s refusal to stay its Writ of Habeas Corpus was in error.
The record presented to this Court by Petitioner demonstrates that the trial judge was in a better position to determine the best interests of the child than this Court.
Petition denied.
Cracraft, C.J., and Cooper, J., concur.
Glaze, J., would grant the stay. | [
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Lawson Cloninger, Judge.
Appellant, Fread J. Loane, was convicted of the offense of delivery of a controlled substance. He received a sentence of six years and a fine of $5,000.
Appellant was serving a sentence on a related charge in Oklahoma at the time the information was filed in Arkansas and was brought to this state pursuant to the Interstate Agreement on Detainers, which is codified as Ark. Stat. Ann. § 43-3201 (Repl. 1977).
He initially argues that the trial court erred in refusing to dismiss the charges against him for failure to bring him to trial within the time period set out in the Interstate Agreement on Detainers. We agree. Article IV(c) of § 43-3201, supra, provides:
In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty (120) days of the arrival of the prisoner in the receiving state, but for a good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
The trial judge held in a hearing on this matter that the defendant was initially brought back to Arkansas pursuant to the provisions under the Interstate Agreement on Detainers on March 29, 1983, but was subsequently paroled by the authorities in Oklahoma and was released on bond in this jurisdiction. Once he was free on bond, it was the trial judge’s ruling that Rule 28 of the Arkansas Rules of Criminal Procedure applied from that point on. Rule 28.1 of the Arkansas Rules of Criminal Procedure provides that a defendant shall be brought to trial within eighteen months after being charged with an offense excluding only such periods of necessary delay as are authorized in Rule 28.3. Appellant’s trial was conducted on August 6, 1983. The trial judge specifically stated the reasons for not bringing appellant to trial within the eighteen month period and appellant does not dispute his findings in that respect. His only argument is that Rule 28 does not apply and the speedy trial rule provided in the Interstate Agreement on Detainers does. Rule 28(g) provides specifically that this rule would have no effect on those cases governed by the Interstate Agreement on Detainers Act.
In Blackmon v. Weber, 277 Ark. 393, 642 S.W.2d 294 (1982), the appellant sought a writ of prohibition to prohibit Pulaski County Circuit Court from proceeding to trial on a charge of first degree battery against him. The incident giving rise to the charge occurred on August 24, 1980, while the appellant was an inmate in the Pulaski County Jail as a federal detainee. The following day he was transferred to federal prison in El Reno, Oklahoma. Subsequently he was charged with battery by the State of Arkansas and the prosecuting attorney placed a detainer against him. On December 18,1981, appellant completed his federal sentence and was transferred to the Pulaski County Jail. A bail bond was filed on January 5 and trial date was set for June 25, 1982. In holding that Rule 28.1 of the Arkansas Rules of Criminal Procedure did not apply, the Arkansas Supreme Court stated that because a detainer was placed against appellant under the Interstate Agreement on Detainers Act, the speedy trial rules provided for in that Act applied to the appellant.
In this case, the trial judge refused to apply the speedy trial rules of the Interstate Agreement on Detainers Act because appellant was out on bond. However, the petitioner in Blackmon, supra, was also out on bond, and the Arkansas Supreme Court held that the speedy trial rules of the Act still applied. Hence, we hold that the trial judge was in error.
The State argues that we nevertheless can affirm the Interstate Agreement on Detainers was satisfied. However, Article IV(c) of the Act is clear in that it states that the defendant shall be brought to trial within 120 days, “but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.” No continuances were requested or granted in this case. Furthermore, no actions taken by appellant caused a delay in the trial of the case and nothing in the record indicates that any trial date was set prior to August 6, 1983.
Appellant further contends on this appeal that the Arkansas prosecution is barred by the prior Oklahoma conviction for a crime arising out of the same cause of criminal conduct as the Arkansas prosecution. In view of our decision on the first issue argued by appellant, we do not reach the second.
Reversed and dismissed.
Mayfield and Cooper, JJ., dissent. | [
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James R. Cooper, Judge.
Appellee is the owner of real estate in Arkansas County, Arkansas and appellant is a real estate broker in Stuttgart, Arkansas. Appellee listed her real estate with appellant and the property was sold to a Mrs. Mahfouz, who assumed an existing loan on the property and agreed to pay the balance in cash. The warranty deed was recorded September 10, 1979, and $7,000.00 of the down payment, which was due November 20, 1979, has never been paid.
Appellee brought suit against appellant and Mrs. Mahfouz seeking to recover the S7.000.00 due on the down payment. A default judgment was entered against Mrs. Mahfouz. The trial court found appellant to have been negligent in his handling of the real estate transaction and granted a judgment in favor of appellee. From that judgment comes this appeal.
Appellant argues that the trial court erred in failing to give a directed verdict. The basis for this argument is that there was no proof establishing the standard of care owed by appellant to appellee. We have found no Arkansas case directly in point, nor have counsel for the parties cited us to such a case. Appellant’s argument is founded on the premise that there was no contractual obligation breached by appellant; that there was no testimony as to regulations of the Arkansas Real Estate Commission which might have been violated; and there was no expert testimony which established the standard of care owed by a realtor to his customer under these circumstances.
While it is true that there was no specific evidence presented to the court on the standard of care issue, we do not believe that such evidence was necessary to determine negligence, and therefore liability, of the broker in question.
The general rule is stated clearly in 94 A.L.R. 2d 468:
It is the well-established rule that a real-estate broker, who is not a mere middleman, but is employed by a principal to act as agent in a real-estate transaction, is under a duty to exercise reasonable care and skill, or that degree of care and skill ordinarily employed by persons of common capacity engaged in the same business, and that a broker is liable to his principal for all consequences directly flowing from his failure to exercise such degree of ordinary care and skill in the handling of the matter entrusted to him. [Emphasis supplied.]
In Morley v. J. Pagel Realty & Insurance, 27 Ariz, App. 62, 550 P. 2d 1104 (1976), the court dealt with the question of whether a broker was under a duty to advise his clients that the balance of the purchase price, evidenced by an unsecured promissory note, should be secured by a mortgage. In that case, the court stated:
Although this information (requiring a mortgage) might be beyond the average person, it is common knowledge in the real estate business. We think that as part of appellees’ duty to effect a sale for appellants on the best terms possible and to disclose to them all the information they possessed that pertained to the prospective transaction, appellees were bound to inform appellants that they should require security for the Haydens’ performance.
In Lester v. Marshall, 143 Colo. 189, 352 P. 2d 786 (1960), the Colorado Supreme Court held that where a broker’s agent gratuitously undertook to close a real estate transaction, and assured the purchasers that they would receive a title free of encumbrances, and the purchasers relied on that promise, the broker was liable for a loss resulting from his failure to do what he promised. The court stated:
Our conclusion that the evidence was sufficient to support the trial court’s finding that there was an express undertaking by the defendants on which the plaintiffs relied to their damage renders unnecessary a consideration of the legal duties implicit in the relationship of broker to client.
We deem it significant that the plaintiffs resided out of Denver and that they were thus dependent on the services of the defendants. Defendants, in turn, were agreeable to plaintiffs’ leaving the arrangements to them since they did not recommend employment of counsel to examine the title and to render services at the time of the closing. The assurances given to the plaintiffs that everything would be taken care of prior to the closing; that they would get a title free of encumbrances; that the disbursements were made routinely; and that everything would be cared for after the closing, resulted in a quieting of any apprehension plaintiffs may have had, and a reliance on the defendants to perform whatever duties were requisite to complete the transaction without complications.
The court quoted from 2 Restatement, Agency, § 378 (1958), as follows:
One who, by a gratuitous promise or other conduct which he should realize will cause another reasonably to rely upon the performance of definite acts of service by him as the other’s agent, causes the other to refrain from having such acts done by other available means is subject to a duty to use care to perform such service or, while other means are available, to give notice that he will not perform.
In the case at bar, there was evidence from which the court could have found that appellant was aware of the prior financial problems of the purchasers; that appellee was concerned about their past history and the security for the balance of the down payment; that appellee expressed her concerns to appellant; that appellant told her she did not have to come to Stuttgart from Texas since he would handle the details of the transaction; that appellant assured appellee that if the balance of the down payment was not paid she could get her house back; that appellant made absolutely no effort to secure (by mortgage or otherwise) the balance due, and that appellee had been damaged by the appellant’s failure to act as promised.
The only explanation given by appellant was that he somehow believed that the savings and loan association (which prepared the deed and assumption agreement) was going to hold the deed rather than record it until a substantial sum had been paid on the amount due. We find no evidence to support the theory that this was an escrow situation; it was clearly a straight sale with an assumption of an existing mortgage as part of thé consideration.
We believe that the evidence clearly supports the finding of the trial court that appellant was negligent in his handling of the transaction and that his negligence resulted in damage to Ms. Doss. We fail to see the need for expert testimony to establish the principle that a realtor should advise a client that her equity should be secured. This case is even clearer considering the assurances given Ms. Doss by Townsend that she could get her house back if there was a default. It would have been a simple matter to afford protection for Ms. Doss; appellant assured her she was protected; she was not protected and suffered a loss, and, since Townsend was the party who undertook to protect her from loss, he should bear the loss. We find no error, and therefore we affirm.
Mayfield, C.J., dissents. | [
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Lawson Cloninger, Judge.
Appellant Hulon P. Mitchell and appellee Ann Mitchell were divorced on October 17, 1978, and it was decreed that appellant was to pay the sum of $350.00 per month for the support of the couple’s two minor children. Appellant was to also maintain insurance and pay medical bills for the children. When the oldest child, Michelle, attained age 18, appellant petitioned the court to terminate support for Michelle and to establish the proper amount of support for the one remaining child, Paula. The trial court found that support should continue for . the older child and that appellant should pay $400.00 per month for the support of the two children.
For reversal, appellant urges that the trial court committed error when it (1) amended the pleadings to ask for continuing support beyond age 18 for the older child; (2) found that appellant had a duty to continue support for a child who had reached age 18; and (3) set the support at $400.00 per month.
We determine that appellant’s first point is without merit, but that the trial court’s decision must be reversed on points 2 and 3.
In her response to appellant’s petition, the appellee did not ask for continued support payments for Michelle, the older child, but requested only that the support payments for Paula, the younger child, be substantially increased. The issue of continued support for Michelle was brought up by the chancellor, and testimony was taken regarding the college expenses of Michelle. For his first point for reversal, appellant argues that it was an abuse of discretion for the court to amend the pleadings on its own motion.
This Court recently held in Capitol Old Line Insurance Company v. Gorondy, Administratrix, 1 Ark. App. 14, 612 S.W. 2d 128 (1981), that the trial court may require a pleading to be amended to conform to the facts proved. Ark. Rules of Civil Procedure, Rule 15 (b), provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. There was no objection made by appellant to questions concerning college expenses of Michelle, and, in fact, appellant’s attorney questioned appellant about Michelle’s college expenses and voluntary payments toward college expenses made by appellant. The chancellor did not abuse his discretion in treating the pleadings as amended to conform to the evidence.
Appellant’s second and third points are discussed together on this appeal because they were treated as interdependent by the trial court. The chancellor, in his ruling, discussed at length the duty of a parent to contribute to the college education of a child who has reached majority, and it is clear that the setting of support payments in this case was influenced by the chancellor’s belief that a parent bears such a duty. The chancellor, in his ruling, made this observation:
The Court — recognizing that there is no clear cut case in Arkansas directly in point — but also recognizing that the very few cases that we have imply rather strongly that all parents of adult children, under certain facts, do have a certain legal obligation as distinguished from a moral obligation to support án adult child in college.
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. In Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), the Arkansas Supreme Court stated:
In Missouri Pacific Railroad Company v. Foreman, 196 Ark. 636, 119 S.W. 2d 747 (at page 651 of the Ark. Reports) we said: ‘Ordinarily, there is no legal obligation on the part of a parent to contribute to the maintenance and support of his children after they become of age.’ A significant word in the above quotation is the word ‘ordinarily,’ showing that the Court realized there might be circumstances which could impose on a parent the duty to support a child after such child became of age. This fact was expressly recognized in Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339 (page 327 of the Ark. Reports) where it was stated: ‘It is of course the duty of the father to contribute to the support of his children even after they are of age if the circumstances are such as to make it necessary.’ ...
In Riegler v. Riegler, 259 Ark. 203, 532 S.W. 2d 734 (1976) the Court stated:
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 attained her majority and graduated from high school.
We are not aware of any Arkansas case that has required a parent to support an adult child, whether in college or not, where there are no circumstances which make such support a necessity. There was no showing in the instant case that any special or unusual circumstance was present, and we hold that the appellant cannot be required to support Michelle. It was error for the trial court to consider the support of Michelle in establishing the amount of appellant’s payments, and because of that error this cause must be reversed.
Appellant contends that the trial court committed error when, in fixing the amount of the support payments, it deviated from the mathematical formula set forth on the Family Support Chart. It is sufficient to say here that the chart is only a guide for the trial court and is not intended to be binding. The setting of the amount of support payments is in the sound discretion of the chancellor, and his finding will not be disturbed on appeal in the absence of a showing of an abuse of discretion. Grumbles v. Grumbles, 238 Ark. 355, 381 S.W. 2d 750 (1964).
This cause is reversed and remanded to the trial court for the purpose of establishing the amount of support payments for the younger child, Paula. | [
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Lawson Cloninger, Judge.
Appellant Lora M. Hodges applied for unemployment compensation benefits after she was discharged by her employer, Universal Manufacturing Corporation, for being involved in a fight with another employee. The Arkansas Employment Security Division determined that appellant was entitled to benefits under § 5(b)(1) of the Arkansas Employment Security Law, Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976), finding that she was attacked physically and tried to defend herself by holding on to her attacker. The decision was appealed to the Appeals Tribunal by the employer. When the employer failed to appear at a hearing before the Appeals Tribunal, the determination of the Agency was affirmed. The employer then appealed to the Board of Review, which, after hearing, found that appellant was disqualified for benefits because she was involved in a fight in willful disregard of the best interests of the employer.
The decision of the Board of Review is reversed.
Section 5(b)(1), supra, provides that an individual shall be disqualified for benefits:
If he is discharged from his last work for misconduct in connection with the work ...
The only eyewitness to the incident who testified at the Board of Review hearing was appellant. She stated that on the day of the incident, when it was time to go home, another girl, Della, called appellant by name; that when appellant turned around Della hit appellant on the side of the face with her closed hand and then grabbed appellant’s hair. Appellant then grabbed Della’s hair, but there is no evidence that appellant hit Della. Appellant testified that she said nothing to Della, and that there had been no previous argument.
Jeff Luther, the employer’s personnel manager, testified that he did not see the fight but that it was reported to him by the foremen. He stated that company policy provided that any time a person is involved in a fight, he will be discharged; if a person is attacked he should not fight back; he can do anything to get away from the attacker, but striking another employee is a dischargeable offense; strik ing back will result in discharge even if it is done in one’s own defense. No effort was made by the employer to determine who struck the first blow, or whether appellant was acting in self defense. Appellant testified that she was not aware of a company rule against striking back when attacked, and there is nothing in, the record to indicate that she had been told about it.
We have searched the record in this case and find nothing which indicates that appellant was guilty of misconduct as set out in the Employment Security Law, and as defined in case law. The general rule is that misconduct, within the meaning of the unemployment compensation act excluding from its benefits an employee discharged for misconduct, must be an act of wanton or willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of the standard of behavior which the employer has a right to expect of its employees. Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W. 2d 495 (1980).
It may well be that the employer is justified in having a rule making any employee engaging in a fight subject to discharge, but the existence of such rule does not necessarily mean that the discharged employee is guilty of misconduct within the meaning of the Arkansas Employment Security Law. There is no evidence in this case that appellant knew of a rule against self defense, but even if she had known, legitimate self defense would not disqualify her for unemployment benefits. Furthermore, there is no substantial evidence to indicate that appellant struck her attacker, or do more than hold her by the hair. The right of self defense is recognized under English common law and by Arkansas statutory law. Ark. Stat. Ann. § 41-506 (Repl. 1977), and is universally accepted. It is a right the exercise of which cannot be said to be an act of wanton or willful disregard of the employer’s interest. There is no substantial evidence to support the Board of Review’s finding that appellant was guilty of misconduct, and she is entitled to unemployment benefits.
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Lawson Cloninger, Judge.
On September 15, 1979, appellee Lane E. Courson was an employee of Arkansas-Oregon Pneumatics, Inc., when he was injured while working on a screw conveyor installation at the panel board mill of appellee Georgia-Pacific Corporation at Crossett, Arkansas. Arkansas-Oregon Pneumatics had contracted to perform the installation work for Georgia-Pacific, and appellee Southern Contractors, Inc. had contracted with Georgia-Pacific to perform the electrical work. Courson suffered an amputation of his right foot and of his left leg near the hip when the screw conveyor, for reasons unknown, became operational.
Appellant Bituminous Insurance Company, as workers’ compensation carrier for Arkansas-Oregon Pneumatics, has paid Courson’s medical and rehabilitation expenses in the sum of $12,356.00, and disability payments at the rate of $112.00 per week.
Georgia-Pacific and Southern Contractors, through their liability carrier, Hartford Insurance Company and its attorney, Richard Griffin, negotiated a conditional settlement of their possible liability with the Coursons, subject to court approval. Thereafter, Hartford’s attorney prepared a complaint for Lane E. Courson and Diane Courson which was filed on May 8, 1980, in Ashley County Circuit Court. The complaint named Georgia-Pacific and Southern Contractors as defendants, alleged that Lane Courson’s injuries were caused by the negligence of the defendants, and asked for damages in excess of 81,000,000. On May 13, 1980, Hartford’s attorney filed a general denial as attorney for the defendants, and on May 21, 1980, a joint petition for approval of compromise settlement was filed by Lane Courson and Diane Courson, the plaintiffs, and Richard Griffin, as attorney for Georgia-Pacific and Southern Contractors, the defendants.
The proposed settlement provided for the release of all claims and causes of action which the Coursons might have against Georgia-Pacific and Southern Contractors, for the consideration of the sum of $60,000 to be paid to the Coursons upon approval of the settlement, the further sum of $10,000 to be paid ten years from May 26, 1979, and the sum of $850.00 per month commencing May 26, 1980, and continuing during the lifetime of Lane Courson. The settlement proposal provided that if Lane Courson died prior, to May 26, 1990, the $10,000 would be paid to his designated beneficiary, and that if Lane Courson died prior to the expiration of twenty years from May 26, 1980, the monthly payments would be paid to a designated beneficiary until the expiration of the twenty-year period.
The proposed settlement further provided that the consideration paid was to be free and clear of any claim or lien by Lane Courson’s employer or its compensation carrier, and provided that any and all subrogation rights of the employer, Arkansas-Oregon Pneumatics, or its carrier, Bituminous Insurance Company, should be preserved and recognized.
Bituminous, the appellant herein, was given notice of the filing of the petition and notified of the time set for a hearing on the petition. Bituminous filed an intervention alleging, among other things, that the Court was without jurisdiction for the reason that there was no real controversy, that the action was commenced solely to use the Circuit Court as a forum to present the joint petition, and that the nature and basis of the proposed settlement was required to be approved by the Workers’ Compensation Commission.
On May 23, 1980, the trial court, after a hearing, entered an order approving the compromise settlement, and in its appeal of that order, appellant contends that a fictitious court action commenced under the direction of a third-party tortfeasor does not give the court jurisdiction to hear a petition for settlement “around” the compensation insurance carrier.
We hold that the decision of the trial court was correct and its order is approved.
The Arkansas Workers’ Compensation Law provides for third-party liability. Ark. Stat. Ann. § 81-1340(a)(1) (Repl. 1976) provides that the making of a claim for workers’ compensation shall not affect the right of the employee to make a claim or maintain an action in court against the third party, but is subject to the carrier’s right to notice and intervention, and a lien upon two-thirds of the net recovery for payment of the compensation period paid and to be paid. Subsection (a)(2) provides that the commencement of an action against the third party, or the adjustment of any such claim, shall not affect the right of the employee to recover compensation, but the recovery shall be applied, after cost of collection, one-third in every case to the employee. The remainder, as necessary, is applied to discharge the actual amount of liability of the carrier, and the excess shall belong to the employee. Subsection (c) provides that settlement of such claims under subsections (a) and (b) must have the approval of the court or the commission, except that the distribution of that portion of the settlement which represents the compensation payable under the Act must have the approval of the Commission.
Appellant contends, first, that only the Commission can determine compensation payable in the future, but acknowledges that the Arkansas Supreme Court, in the case of St. Paul Fire and Marine Insurance Company v. Wood, 242 Ark. 879, 416 S.W. 2d 322 (1967), recognized the right of the employee and the third-party tortfeasor, with court approval, to settle “around” the employer and his carrier, if the settlement preserved the carrier’s right to proceed against the tortfeasor. The principle set out in the Wood case was confirmed in The Travelers Insurance Company v. McCluskey, 252 Ark. 1045, 483 S.W. 2d 179 (1972) and in Liberty Mutual Insurance Company v. Billingsley, 256 Ark. 947, 511 S.W. 2d 476 (1974). In Billingsley the Court noted that it could not be said that the statute affords the carrier a veto of any compromise not to its liking, and that the question of whether the proposed settlement was approved was properly addressed to the discretion of the Court.
Appellant also contends that the Circuit Court was without jurisdiction in this case; that in this case there was no actual controversy because the claim had been settled before the complaint was filed; and that the action was a fictitious one commenced solely to give the Court jurisdiction to approve the settlement in order to avoid submitting the determination to the Commission. We cannot say that there was no actual controversy in this case. The settlement agreement was a conditional settlement contingent upon approval by the Court. The procedure followed was irregular, in that the Coursons were never represented by counsel, but we are aware of no statute or case law which requires representation. Evidence presented in the trial court reveals that the negotiations were underway for six weeks, and that the Coursons knew Richard Griffin was the attorney for Hartford. Lane Courson testified that he and his wife were told they could retain independent counsel, that it was their choice not to do so, and that he requested Richard Griffin to prepare the complaint which he and his wife filed. The trial court was aware that Richard Griffin represented Georgia-Pacific and Southern Contractors in the settlement proceeding and of the assistance given the Coursons by Richard Griffin in the preparation of the complaint. The trial court specifically found that the Coursons ftilly understood the terms of the proposed settlement, and that they believed the proposed settlement was to their best interest.
It is obvious upon examination of the trial court’s findings that the trial judge carefully scrutinized the proposed settlement and satisfied himself that it was a fair and equitable settlement for the Coursons. We, also, are convinced that the Coursons have not been taken advantage of, in view of the uncertainties of personal injury trials; the Coursons might have obtained a more favorable award from a jury, or they may have recovered nothing. The trial court found, and we agree, that under the terms of the proposed settlement the Coursons or their estate are guaranteed a minimum of $274,000; if Lane Courson lives his normal life expectancy of 42 years, the total payments to him would be $498,400. In addition, the Coursons will continue to receive workers’ compensation benefits and they have no obligation for an attorney’s fee.
We find no abuse of discretion by the trial court and the judgment is affirmed.
Mayfield, C.J., concurs. | [
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Melvin Mayfield, Chief Judge.
Appellant E. O. Hensley, a pedestrian, was struck by a vehicle operated by appellee Roger Brown. In an action filed by appellants for damages, service was had on appellee on June 2, 1979. On July 25, 1979, no answer or other pleading having been filed by appellee, appellants filed their motion for judgment on the question of liability. And, although Rule 55(b) of the Rules of Civil Procedure did not require it, appellants gave appellee notice of the date the motion was set for hearing. On August 2, 1979, appellee filed a response, alleging that on June 15, 1979, his attorney mailed an answer to the clerk, with a copy to each of two separate attorneys representing appellants. The attorneys and clerk filed affidavits denying they received the answer. There is nothing else in the record pertaining to appellants’ motion except a copy of the court’s docket entry on September 27, 1979, showing “Default denied.”
The issues of liability and damages were subsequently presented to a jury on March 5, 1980, and the jury returned the verdict for appellants for $1,000. Apparently not satisfied with that amount, the appellants appeal and argue that the granting of a default judgment on the issue of liability was mandatory and that the trial court did not have any discretionary authority to deny it.
We agree that the granting of a default judgment on the issue of liability is not a matter of discretion where no answer or other pleading is timely filed.
In the first place, Rule 12 of the Arkansas Rules of Civil Procedure provides that a defendant shall file his answer within twenty (20) days after service of summons. Rule 6(b) provides that where an act is required to be done within a specified time, the court may, after the expiration of that period, order the time enlarged where the failure to act was the result of excusable neglect, unavoidable casualty, or other just cause.
In the second place, Rule 55(a) provides: “When a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend as provided by these rules, judgment by default shall be entered by the court.” Reporter’s Note 1 to Rule 55 says it “generally follows prior Arkansas law” and in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957), the court sustained the granting of a default judgment where the answer was not filed in time and said in view of the language of Acts 49 and 351 of 1955, “We cannot sustain the appellant’s contention that the courts still have unlimited discretion to grant further time to a defendant already in default.” And in Moore, Adm’x. v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967), the court, referring to Walden, said: “We held that the 1955 statutes were mandatory in requiring a defendant to plead within the time fixed by law.” The court did point out, however, that Act 53 of 1957, relaxed the strictness of the 1955 acts by providing that: “Nothing in this act shall impair the discretion of the court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty, or other just cause.”
Act 53 of 1957 and Act 49 of 1955 were codified as part of Ark. Stat. Ann. § 29-401 (Repl. 1962) and that section was before the court in Perry v. Bale Chevrolet Co., 263 Ark. 552, 566 S.W. 2d 150 (1978), where the trial court had granted a default judgment. In reversing that judgment, the Supreme Court referred to several cases where the circumstances were said to be sufficient to avoid the “harshness of a default judgment” because of excusable neglect, unavoidable casualty, or other just cause, and said, “Under the circumstances of this case, we hold that the filing of a typewritten answer only one day late was attributable to excusable neglect or other just cause.”
It is, therefore, our view that a court does not have the discretion to excuse the failure to file a timely answer or other pleading and refuse to grant a default judgment. If the failure to file, however, was due to excusable neglect, unavoidable casualty, or other just cause, judgment by default should not be granted.
There are other situations where as a matter of law — not discretion — judgment against a defendant in default is not authorized. For example, judgment should not be granted against a defendant who has not timely answered if the action is against several defendants jointly and one of them has filed a timely answer which asserts a defense common to all. Firestone Tire & Rubber Co. v. Little, 269 Ark. 636, 599 S.W. 2d 756 (Ark. App. 1980). Furthermore, a default admits only those facts alleged in the complaint and a judgment should not be granted for relief which the alleged facts do not warrant. Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974). Rule 55(b) provides that “no judgment by default shall be entered against an infant or incompetent person” and it also provides for three days written notice before a default judgment can be entered against a party who has appeared.
Even where a default judgment on the issue of liability is granted, the amount of the judgment must be established and the defaulting defendant has the right to cross-examine witnesses and introduce evidence in mitigation of damages. Kohlenberger, supra. And it may be necessary to establish some other fact before judgment can be entered. Rule 55(b), in dealing with these matters, provides:
If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper and may direct a trial by jury.
So while we agree with the appellants that the granting of a default judgment on the issue of liability is not a matter of discretion where no answer of other pleading is timely filed, this does not mean that the trial court was in error in this case. If the appellee’s allegations with regard to the mailing of his answer were believed, then the failure of the post office to deliver the letters would constitute excusable neglect, unavoidable casualty, or other just cause. The record does not show why the court denied the appellants’ motion for default but it is their burden to demonstrate that the court was in error. Peoples Protective Life Ins. Co. v. Smith, 257 Ark. 76, 89, 514 S.W. 2d 400 (1974). We do not find that this had been done.
Affirmed.
Cooper, J., not participating.
Cloninger, J., concurs. | [
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George K. Cracraft, Judge.
This is an appeal from a determination by the Workers’ Compensation Commission that benefits claimed by the appellant had been barred by the statute of limitations provided in that act.
It was stipulated that the appellant sustained a com-pensable injury on May 28, 1974, while in the employ of the appellee, Paul Quimby. As a result of that injury to his hip the appellant underwent an operation in which four pins were inserted in his hip.
Following that surgery a disagreement arose between Drs. Blackwell and Logue as to whether or not he should have a total hip replacement at that time. In view of this disagreement a third opinion was sought of Dr. Sorrells. Dr. Sorrells agreed with Dr. Logue that total hip replacement should not be done at that time. All doctors agreed, however, that a total hip replacement might ultimately be required. In 1976 in a hearing before the Commission the administrative law judge stated in his opinion “the claimant will in all probability be in need of a total hip replacement in the future as a result of the compensable injury he suffered on May 28, 1974.”
Thereafter on October 1, 1976, the Commission on an evaluation of forty percent permanent disability to the lower extremity, ordered that the claimant be paid a lump sum settlement for the balance of permanent partial disability. In May of 1977 the appellant underwent additional surgery for the insertion of a prostatic atroplasty of the left hip. Thereafter he returned on occasion to see Dr. Sorrells who furnished the last medical services to the appellant on March 29, 1978. No further medical services were sought by appellant until he returned to his original doctor in February of 1980. On March 11, 1980, total hip replacement surgery was performed.
On these facts the administrative law judge found that the last medical services furnished or compensation paid by anyone was March 28, 1978, and that no claim for additional services or compensation was made until February 1980. He concluded that Ark. Stat. Ann. § 81-1318 (b) barring by limitation any claim made more than one year after the last payment of compensation or two years from the date of the injury is mandatory and that the earlier finding that hip surgery might become necessary did not toll the statute.
Appellant filed his notice of appeal to the full commission listing as his grounds (among other things):
That the operation of March 11th for which this claim is made was a continuing medical treatment as a result of the injuries incurred on May 28, 1974, and that said continuing treatment was within the knowledge of the employer and carrier and the carrier should be estopped from asserting the statute of limitations.
No mention of the ground for reversal now relied on was then made. The full commission affirmed the findings and conclusions of the law judge.
Appellant appeals asserting that the expenses of the total hip replacement were not subject to the limitations of § 81-1318 (b) but are specifically exempt from the time limitations as a prosthetic device. In support of this contention appellant relies upon the provision of that section which is as follows:
The time limitation of this section shall not apply to claims for replacement of medicine, crutches, artificial limbs and other apparatus permanently or indefinitely required as a result of a compensable injury, where the employer or carrier has previously furnished such medical supplies.
Appellant contends that the operation or total hip replacement of February 1980 falls within one of those categories listed in the exception, i.e. “artificial limbs or other apparatus permanently and definitely required.”
The appellees contend that the appellant proceeded before the Commission on the issue of whether or not the March 1980 operation was continuing medical treatment as a result of the injuries incurred which was in the knowledge of the appellees and had been mentioned by the administrative law judge in the 1976 hearing. It is their position that the issue now relied upon by the appellant was not raised before the Commission and cannot be raised here for the first time on appeal.
In response to that contention the present counsel for the appellant candidly admits that he did not represent the claimant during the hearing before either the administrative law judge or the full commission and does not know what points were argued but takes the position that the statute and applicable cases were cited throughout the proceedings.
Our examination of the record leads us to the conclusion that the issue now raised on this appeal was never brought to the attention of either the administrative law judge or the full commission. We agree with the appellees that if the same had been an issue more medical testimony would have been developed to determine exactly what surgical procedures were followed, why a P28 was substituted, whether it was merely a pain necessitated operation, or any additional surgery would be required. The only medical testimony with regard to the 1980 operation was a written report by Dr. Blackwell which at best informs us that an operation was performed to correct “the right hip prostatic changes with erosions,” and that a “P28 total hip replacement was inserted.” There was no testimony in the record as to what a “P28 hip replacement” is or why the procedure was required or its connection with the earlier surgery. The notice of appeal to the full commission filed after the administrative law judge’s opinion of November 12, 1980, contains no reference to the issue now raised.
Our review of the record convinces us that this matter was presented to the Commission on the theory that the 1980 surgery was merely an extension of the original injury and appellees are estopped from now asserting the statute of limitations. Nowhere is there reference made to the issue of whether or not the operation of 1980 was an exception to the statute in question.
It is a well established appellate rule that grounds for relief cannot be asserted for the first time on appeal. In Palmer v. Cline, 254 Ark. 393, 494 S.W. 2d 112 (1973), the court declared the rationale for that rule as follows:
We must determine the issues upon the record that was made in the trial court. The facts essential to the question now argued were not pleaded in that court and therefore cannot serve as a basis for decision in this court.
The Supreme Court has held that this rule applies with equal force to appeals from Arkansas Workers’ Compensation Commission. Hawthorne v. Davis, 268 Ark. 131, 594 S.W. 2d 844 (1980); Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979); Jeffery Stone Co. v. Lester H. Raulston, 242 Ark. 13, 412 S.W. 2d 275 (1967); Murch-Jarvis Co., Inc. v. Townsend, 209 Ark. 956, 193 S.W. 2d 310 (1946).
We affirm. | [
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Tom Glaze, Judge.
The appellant was convicted of first degree murder in the shooting death of Charles R. Jacks. Appellant raises five evidentiary issues on appeal.
Appellant first argues that the trial court erroneously denied him the opportunity to prove certain inconsistent statements made by one of the State’s witnesses, Gail Hewgley. We disagree. After Jacks’ death, Hewgley had been interviewed by Little Rock Detective Larry Dunnington. Dunnington had prepared a typed summary of Hewgley’s interview, but it was not signed by Hewgley or Dunnington. It was this summary statement which appellant attempted to introduce at trial to show prior inconsistent statements attributed to Hewgley.
The rule is established that a witness may not be charged with a third party’s characterization of his statements unless the witness has subscribed to them. United States v. Leonardi, 623 F. 2d 746 (2d Cir. 1980). Here, Hewgley, on one occasion, complained that her copy of her statement did not contain one of the comments read to her by appellant’s counsel from Dunnington’s summary. She testified that the summary statement was similar and could be the one she gave the police, but she did not remember exactly what she wrote down. In brief, the summary was not in her handwriting or signed by her. Nor was it acknowledged by Hewgley to be her statement. To be admissible, appellant was required to establish the authenticity of the summary statement by the officer who took Hewgley’s statement and to show that Hewgley actually made the remarks attributed to her. See McCormick, Evidence, § 37 (2d ed. 1972), and Dickinson Supply, Inc. v. Montana-Dakota Utilities Company, 423 F. 2d 106 (8th Cir. 1970).
Appellant next contends the trial court erred in admitting extrinsic proof of prior inconsistent statements made by another State witness, Charles Sheridan. Officer Dunning-ton wrote a statement verbatim of Sheridan’s oral statement, and Sheridan read, corrected and signed it. Moreover, unlike the Hewgley summary, Dunnington authenticated and established at trial that the statements contained in the summary he prepared were made by Sheridan. This was done before the court correctly admitted the Sheridan statement into evidence.
Thirdly, appellant urges that the trial court incorrectly sustained the State’s objection to exclude the opinion of the arresting officer that appellant was “scared to death” at the time of arrest. Appellant contends that Rule 701 of the Uniform Rules of Evidence permits even lay witnesses to describe whether the defendant was angry, nervous or scared. While this may be true, we fail to see how it aids appellant in the relief he seeks. Appellant was convicted of first degree murder. A person commits first degree murder if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. See Ark. Stat Ana § 4l-1502(lXb) (RepL 1977). To be admissible evidence must be relevant, i.e., evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. See Rules 401 and 402, Arkansas Uniform Rules of Evidence. While appellant’s state of mind was relevant at the time of the shooting, we fail to see the relevancy of testimony which depicts his state of mind after the shooting occurred. Although decided before adoption of our Uniform Rules of Evidence, the Supreme Court in Prewitt v. State, 150 Ark. 279, 234 S.W. 35 (1923) upheld the exclusion of testimony concerning defendant’s appearance when he arrived at his doctor’s office directly after shooting the deceased. The court held that too much time had intervened between the time of killing and when he saw the doctor and opportunity had then been afforded for reflection and dissimulation. Here, appellant testified that after the shooting he got in his van, took off down the alley, went over the Main Street bridge, got off. at Washington Street, pulled over and stopped to get himself together and reloaded his gun while he sat there. All of these events occurred after the killing and before the arresting officer found him. Aside from the relevancy of this opinion evidence, the arresting officer testified later, without objection, that “he [appellant] was really scared.” Thus, even if the arresting officer’s shorthand description of how appellant was acting after Jacks’ death was relevant, the record clearly reflects evidence appellant appeared scared. We conclude that the trial court correctly excluded this testimony since it was not relevant, and, indeed, even if it were, the excluded testimony was merely repetitious to that which was later presented by the same witness. See, Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 (1974), and McMillan v. State, 229 Ark. 249, 314 S.W. 2d 483 (1958).
The fourth issue raised by appellant concerns an objection by the State to a question posed by defense counsel to appellant. On appeal, appellant argues that the State at trial sought to show that prior to the shooting, appellant left Jacks and his companion, Bobby Smith, where their car was parked and went to his van for the purpose of obtaining a gun to later use on Jacks or Smith. Appellant contends that his counsel’s question was designed to show that his friend, Charles Sheridan, had remained with Jacks and Smith when appellant went to his van, and he merely returned to where the parties were parked to get Sheridan and to leave. The direct examination of appellant follows:
Q. If Charlie Sheridan had followed you back to your van, what were you going to do at that point?
A. I was going to take —
Prosecutor: Your Honor, I object. I think that is just totally supposition.
The Court: All right. The objection will be sustained.
The appellant made no proffer of evidence pursuant to Rule 103(a)(2) of the Arkansas Uniform Rules of Evidence, which is required unless the question clearly admits of an answer relevant to the issues. Whether a proffer was necessary in this instance is of no moment since we again conclude that appellant’s answer would have been repetitive and cumulative, and he was not prejudiced by its exclusion. Although the State’s objection was rather general, the trial court may properly exclude evidence if its exclusion is justified on any ground. Howell v. Dowell, 419 S.W. 2d 257 (Mo. App. 1967). See also McCormick,Evidence, § 52, and 88 C.J.S., Trial, § 124(b) (1955). Prior to the foregoing colloquy, appellant had testified he thought about Mr. Sheridan being over there (with Jacks and Smith) and appellant was going back to get him. He testified further that because the guys (Jacks and Smith) were giving him a strange reaction, he went over to his van, armed himself and “was going to get Mr. Sheridan and take him and get breakfast.” Appellant had clearly expressed his intention, without objection, that he returned to get Sheridan and intended to take him to breakfast. We fail to see how appellant was prejudiced by the exclusion of what appears only to be cumulative or repetitive testimony. Nelson v. State, supra.
Finally, appellant contends that the State’s evidence is insufficient to support the guilty verdict. Specifically, he argues the proof shows the shooting was justified under Arkansas law. Appellant relies in part on Ark. Stat. Ann. § 41-507(1) (Repl. 1977), which provides:
A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is ... (b) using or about to use unlawful deadly physical force.
Other relevant provisions of Ark. Stat. Ann. § 41-507 (Repl. 1977) as well as § 41-506 appear as follows:
§ 41-507(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 ...
§ 41-506(2). A person is not justified in using physical force upon another person if
(a) with purpose to cause physical injury or death to the other person, he provokes the use of unlawful physical force by the other person; [Emphasis supplied.]
In reviewing the evidence, we must affirm the lower court’s verdict if there is any substantial evidence to support it. Lunon v. State, 264 Ark. 188, 569 S.W. 2d 663 (1978). In determining if evidence is substantial, we must also view the evidence in a light most favorable to appellee. When doing so, we conclude there is sufficient evidence to support the appellant’s conviction of first degree murder and that he was not justified in shooting Jacks. The record reflects evidence to support the following sequence of events:
Jacks, Smith and two women, Gail Hewgley and Janet Jeffords, met appellant at the Trinity Club. When the foursome decided to leave, appellant claimed Smith owed him some money so appellant followed the group to their car. Smith did not pay appellant, and Smith said that appellant expressed “he’d fix us.” Appellant then went to his van and the four men and women got in Jacks’ car. Jacks started his car and began to leave when appellant approached the passenger side of the car and threatened the group with a gun. Jacks then tried to get out of his car but never made it before the gun was fired. Although there was evidence Jacks had a gun, Hewgley, Jeffords and Smith all testified that the appellant threatened them with a gun as they were preparing to leave, and the first shots all came from the passenger side of the car, where appellant was positioned.
The foregoing evidence substantially shows that appellant not only could have avoided returning to the Jacks car, but also he could have allowed the foursome to leave as they were prepared to do. Additionally, the proof is overwhelming that appellant was the first person to wield a gun and to threaten Smith and the others. We, therefore, hold the jury had sufficient evidence upon which to base its verdict of first degree murder and to reject appellant’s claim of self-defense and justification.
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Donald L. Corbin, Judge.
This case was filed by the Ozark School District No. 14 in the Circuit Court of Franklin County, Arkansas, Ozark District, on September 14, 1979, as an appeal and a Writ of Certiorari from a decision of the Franklin County Board of Education. The case involved a May 19, 1941, Franklin County Court order which purported to establish a boundary line between two school districts located in Franklin County. The Court order authorized the transfer of 240 acres from the Manitou School District No. 70 to the Adams School District No. 20.
On March 16, 1948, a Franklin County Board of Education order placed all lands contained within the Manitou School District No. 70 within the Ozark School District No. 14. The Adams School District consolidated with the Pleasant View School District No. 4 in 1949, at which time the 240 acres were transferred to the Pleasant View School District No. 4 on the tax records.
At its July 20, 1979, meeting, the Franklin County Board of Education considered a letter from the President of the Board of Directors of the Ozark School District No. 14, which asked the Board to assist in correcting a “courthouse clerical error” by transferring the 240 acres to the Ozark School District No. 14 from Pleasant View School District No. 4 on the county books. The Board found (1) that no accurate map of the school district boundaries in Franklin County existed; (2) that the 240 acres were in the Adams School District No. 20 from 1943 until its consolidation with Pleasant View School District in 1949; and (3) that the boundaries should remain as fixed by such consolidation.
At the August 16, 1979, meeting of the Franklin County Board of Education, representatives of the Ozark School District appeared, contending that a clerical error in the 1940’s caused the 240 acres to be transferred from Manitou School District No. 70 and placed in Adams School District No. 20. They asJked the Board of Education to order such correction and transfer the same on the books. The Board of Education again refused to transfer and affirmed its previous action of July 20, 1979.
Appellee, Ozark School District No. 14, filed a Writ of Certiorari and appealed to the Circuit Court of Franklin County from the finding of the appellant, Franklin County Board of Education. Thirty-four residents within the 240-acre area filed a petition to intervene and join with Ozark School District No. 14 in the Circuit Court. The appellee contended that the Board of Education’s refusal to order a correction of the records as requested by the Ozark School District amounted to a boundary line change between Ozark and Pleasant View School Districts; that there was no compliance with the statutory requirements to annex territory or change district boundaries; and that the order of the Board of Education was therefore void.
No witnesses testified and the case was submitted on documentary evidence and briefs of counsel. The trial court rendered a declaratory judgment, ruling that the May 19, 1941, Franklin County Court order was invalid and void because of the failure to follow the requirements of Arkansas law and because of the ambiguities contained in the land description in said order. The trial court further ruled that the decision of the Franklin County Board of Education constituted a boundary change as defined by Arkansas case and statutory law. The Pleasant View School District No. 4 was not a party to this action. Appellants have appealed the decision of the Franklin County Circuit Court.
Ark. Stat. Ann. § 34-2510 (Repl. 1962) provides in part:
Parties. — When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.
Ark. Stat. Ann. § 34-2505 provides:
When court may refuse judgment or decree. — The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
In applying these statutes to the case at hand, it is evident that any decision rendered by this Court would not terminate the uncertainty or controversy giving rise to the proceeding because the Pleasant View School District No. 4 is a necessary party to this proceeding. It stands to lose 240 acres of land if the decision below is affirmed. A declaratory decree in this case would not bind the Pleasant View School District No. 4 which, though not a party hereto, is a real party in interest. It follows that a decree would not end the dispute since the Pleasant Valley School District No. 4 would still be entitled to be heard on the quesiton. See Johnson v. Robins, 223 Ark. 150, 264 S.W. 2d 640 (1954). All necessary parties have not been brought into court. The statute requires that all persons shall be made parties who have any interests which would be affected by the declaration. See Laman v. Martin, 235 Ark. 938, 362 S.W. 2d 711 (1962).
We reverse and remand for further proceedings consistent with this opinion.
Cooper, J., dissents. | [
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George K. Cracraft, Judge.
Appellants appeal from a decree in which the chancellor relieved appellees from the effect of a stipulation for the acceleration of unpaid installments on a land sale contract under circumstances he found to be unconscionable.
In 1974 the appellants Mahan sold real estate to the appellees Poling on an installment contract under which the deed was deposited with the First National Bank of Rogers with instructions not to deliver the deed until all the installments of principal and interest and all other covenants therein had been fully performed. The installments of principal and interest were to be paid through the bank. The provisions of that contract obligated the buyer, among other things, to pay all taxes and other charges on the property when due.
Paragraph nine of the contract provided that “time shall be of the essence in the performance required by this agreement.” It further provided that a delinquency in buyer’s performance of any term or condition, including the payment of taxes, which continued for a period of thirty days vested in the seller the option of two remedies. The seller might declare the contract terminated and recover possession of the premises or at his option declare the entire balance due on the contract to be immediately due and payable coupled with the immediate right to foreclose the unpaid seller’s lien. In the event of election to exercise the latter option, an obligation to pay an attorney’s fee was imposed upon the buyer.
Under this arrangement the appellees Poling entered into possession of the property and faithfully and promptly paid all of the installments of principal and interest, taxes and insurance premiums and fully performed all other obligations imposed upon them under the contract for a period of five years. In 1979 the appellees Poling conveyed their interest under the contract to appellees Baker, who continued to make the payments of principal and interest up to the time this action was filed.
For reasons not disclosed in the record, the real estate taxes due and payable before October 1, 1979, were not paid. The appellant Mahan became aware that the taxes were delinquent and, without notice or demand upon the appel-lees, redeemed the taxes on December 17, 1979- Thirty days thereafter on January 16, 1980, again without any notice to the appellees, Mahan elected to exercise his option to declare the entire unpaid balance of principal under the contract to be due and payable and brought his action praying that he have judgment for the unpaid balance and a decree in foreclosure.
The total amount that appellant was required to pay to redeem the taxes, penalty and interest, was in the amount of $7910. At the time the acceleration of the debt was declared, the appellees were not and had never been otherwise in default. The First National Bank of Rogers was brought into the action solely because of its status as escrow agent. No judgment was sought against it. While the suit was pending the appellees made tender of two installments which were refused. An offer to tender all of the accrued installments and the amount paid to redeem the taxes was made in open court at the date of the hearing.
The chancellor, on stipulated facts, found that the appellants had not notified the appellees that the taxes for 1978 were delinquent and made no demand on them to make that payment. The chancellor found no showing that the appellees received a tax statement for the 1978 taxes or that one had been mailed to them, and that there was a strong presumption that the appellees had no notice or knowledge that the taxes had not been paid. The court further found that it would not have been an undue burden on the appellants to notify the appellees of the delinquency and make demand on them for payment prior to commencing suit, “rather than sitting silently by and awaiting the expiration of the required thirty day period to bring their foreclosure action at a time when over one-half of the purchase price had been paid and the appellees had in all other respects faithfully performed all the covenants.” The chancellor further found that as there was no showing that the failure to pay the taxes was intentional, that it would be “grossly inequitable” to declare a forfeiture of the contract; that the appellants in good conscience should have notified the appellees of the delinquency, and that therefore a court of equity ought to relieve the appellees from the forfeiture. The chancellor ordered the appellees to immediately pay the escrow agent a sum sufficient to bring the payments under the contract current and to reimburse appellants for the redemption, penalty and interest. Appellees were further ordered to pay the current real estate taxes. The decree provided that failure of appellees to do so within ten days would result in the entry of a decree ordering a sale of the property.
The appellants contend on appeal that the chancellor erred in not ordering foreclosure because the contract expressly provided that “time was of the essence” with respect to the performance of all of the covenants and provided in the event of default the appellants should have the option to declare the entire unpaid balance immediately due and payable, and have the right to bring an action to foreclose the unpaid seller’s lien. They point out that there was no denial that the taxes were delinquent and that the contract made no provision for the alternative relief granted by the chancellor.
It cannot at this time be questioned that provisions in an instrument of security providing for acceleration of the secured debt on default are valid and enforceable.Johnson v. Guaranty Bank & Trust Co., 177 Ark. 770, 9 S.W. 2d 3. Under our decision the stipulation in such an instrument for the whole debt to mature upon default is not treated as a forfeiture, but rather as a stipulation for a period of credit on condition. Pulaski Federal Savings & Loan Assn. v. Woolsey, 242 Ark. 612, 414 S.W. 2d 633- It is also clearly established that when the instrument executed between the parties declares that time is of the essence in the performance of obligations of the agreement, the courts will not relieve against the consequences of a default except in certain circumstances. In Pulaski Federal Savings & Loan Assn. v. Woolsey, supra, the Supreme Court set out these circumstances under which such relief is warranted:
The stipulation for accelerating the time of payment of the whole debt may be waived by the mortgagee, especially when it is made to depend upon his option. A court of equity will also relieve against the effect of such provisions, where the default of the debtor is the result of accident or mistake, or when it is procured by the fraud or other inequitable conduct of the creditor himself.
Under our decisions, the stipulation in a mortgage for the whole debt to mature upon default of a part of the debt is not treated as a forfeiture clause, but rather as a stipulation for a period of credit on condition. A breach of the clause can only be relieved against when some one of the equitable grounds above stated are established. (Emphasis added.)
It has been stated that the purpose for including in security instruments a requirement that the debtor pay all taxes when due is for the purpose of assuring that the title to the security not be lost or the creditor unduly inconven ienced. Under our law the appellants were in no danger of losing their security, due to the two year period of redemption from tax sales provided by our law, Ark. Stat. Ann. § 84-1201 (Repl. 1980). He could not be harassed or be unduly inconvenienced by anyone during that period of time.
We agree with the chancellor that it would not have been a heavy burden on the appellants to have notified the appellees of the deficiency and afforded them an opportunity to cure it before declaring the acceleration of the debt. We further agree that it would be grossly inequitable in this case to permit a forfeiture in favor of one who sat silently and awaited the expiration of the required thirty day period for filing a suit in foreclosure. Under the circumstances of this case, the chancellor found that the appellants did not deal fairly with the appellees and took a technical and unconscionable advantage of the situation. While it may not be unconscionable to insist upon strict compliance with the terms of a contract, it would be inequitable to so insist when the default is in a trifling amount and neither endangers the security, hinders the collection of the debt nor otherwise injures the lienee. The appellees’ prior performance record certainly gave appellants no reason to believe that the appellees would not promptly cure the default. Appellants’ silence, followed by immediate suit, is suggestive of an intent on their part to avoid any act which might bring the deficiency to the appellees’ attention in time to cure it and supports the chancellor’s finding of inequitable conduct. The clear declaration of Pulaski Federal Savings & Loan Assn. v. Woolsey, supra,Johnson v. Guaranty Bank & Trust Co., supra,Harrell v.Perkins, 216 Ark. 579, 226 S.W. 2d 803, is that foreclosure, although based in part on legal rights, is an equitable proceeding and it is within the province of a court with equitable powers to see that the párty seeking the relief shall have dealt fairly before that relief is granted. We find no error in the action of the chancellor.
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Tom Glaze, Judge.
In this employment security benefits case, the claimant was held to have been disqualified from benefits pursuant to Ark. Stat. Ann. § 81-1106(a) (Supp. 1979), for the reason that “she left her last work voluntarily because of an illness or other disability but without making reasonable efforts to preserve her job rights.” (Emphasis supplied.)
Claimant worked as manager for Bread Basket *1 in Hot Springs from October, 1977, until February 11, 1980, when she suffered a heart attack and was hospitalized. On the night of February 11, the employer, Steve Marovich, went to see claimant at the hospital, and while there, Marovich informed the family that the claimant would be replaced if she could not return to work within twelve days. Although her family did not tell the claimant during her two week stay at the hospital what Marovich had said, claimant learned from her co-employees on the day she was released from the hospital that she was being replaced at work the next day. The claimant’s doctor told her that she would not be able to return to work until June, 1980. She testified that she never did ask the employer for a leave of absence because the employer did not grant leaves.
The claimant filed for unemployment benefits on June 9, 1980, and the Agency denied her claim under Ark. Stat. Ann. § 81-1106(a) (Supp. 1979). She then appealed to the Appeal Tribunal, which affirmed the Agency determination that the claimant had voluntarily quit due to an illness but had failed to make reasonable efforts to preserve her job rights. Specifically, the Tribunal stated:
The claimant last worked for the above-named employer on February 11, 1980, and was then hospitalized for two weeks after suffering a heart attack. The day after being released, she heard from several employees that she had been replaced, but did not contact the employer in an effort to determine whether such was true. A week after being released her daughter informed her that the employer had indicated she would be replaced if she did not return to work within 12 days of her heart attack. She did not contact the employer or, indeed, at any time throughout, to request a leave of absence or otherwise attempt to protect her job. She failed to do so because she just knew the employer did not grant leaves.
Claimant denied that she quit her job, both at the hearing and in her appeal to the Board of Review. At the hearing before the Appeal Tribunal, the claimant asked the Referee to contact Marovich, who would confirm that she was terminated while in the hospital. The Referee refused to do so, saying that it had never been the practice of the Appeal Tribunal. We feel that it was error for the Referee to refuse claimant’s request. The claimant should have been informed, instead, that the hearing could be continued at her request and the witness subpoenaed.
In Cross v. Daniels, 271 Ark. 201, 607 S.W. 2d 680 (Ark. App. 1980), we held that it was error not to subpoena a witness requested by the claimant. In that case, the claimant was disqualified upon the same basis as we have here, i.e., “he quit his last work because of illness, injury, or other disability but did not make reasonable efforts to preserve his job rights prior to quitting.” The claimant, while at the hearing, requested that one of his superiors be subpoenaed for the purpose of testifying. There, the Referee acknowledged his authority to grant a continuance but declined to do so. He said he would hold another hearing if, after reviewing the evidence, he felt it necessary. No further hearing was held and the witness sought was neither subpoenaed nor heard. The court reversed and remanded with instruction to hold a further hearing after the witness sought by claimant had been subpoenaed to appear.
In the instant case, however, it will be unnecessary to remand for further hearing. The claimant’s only purpose in requesting this witness was to corroborate her own testimony that she did not voluntarily quit, but instead was involuntarily terminated when she was unable to return to work within twelve days of her heart attack. There is nothing in the record nor in the findings by the Appeal Tribunal which would indicate that the Tribunal disbelieved the facts as the claimant related them. The testimony of the witness, therefore, would be cumulative of the evidence that the claimant did not voluntarily quit. A claimant who is terminated by an employer through no fault of her own is not bound to preserve her job rights as she is required to do when she voluntarily quits her employment. In the instant case, asking for leave of absence after the employer replaced her would have been a useless act which we do not see fit to require of her.
On that basis, we reverse with instruction to award benefits.
Reversed. | [
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Melvin Mayfield, Judge.
This is the second appeal in this workers’ compensation case involving a claimant/appellee and an uninsured employer/appellant. In the first appeal the only issue was compensability. The Commission had held that appellee had sustained a compensable injury and was entitled to workers’ compensation benefits. We affirmed the Commission’s decision. After another hearing the appel lee was awarded temporary total disability benefits from July 11, 1991, through November 16, 1991, medical expenses, and attorney’s fees. On appeal the appellant/employer argues:
I. “WHETHER OR NOT THE APPELLEE SUFFERED AN INJURY TO THE EXTENT AND NATURE AS SHE CLAIMED.”
II. “THE COMMISSION ERRED IN UPHOLDING VARIOUS DISCOVERY AND EVIDENTIARY RULINGS BY THE ADMINISTRATIVE LAW JUDGE.”
The appellee was injured while selling bingo cards on the floor of appellant’s bingo parlor. On July 11, 1991, she was running from one side of the room to the other, and something slick on the floor caused her to fall. This injured her back and leg. At the second hearing the appellant contended, even though this court had said appellee sustained a compensable injury and was entided to workers’ compensation benefits, that appellee was entitled only to the medical expenses incurred at the emergency room on July 12, 1991, and that all other medical expenses after that date were not reasonable or necessary.
Medical records from St. Bernard’s Regional Medical Center show that on July 12, 1991, appellee reported she had fallen at work the night before and injured her back and knee. X-rays were made on both of appellee’s knees, her pelvis, and her lumbar spine. On July 16 a CT scan was performed and on July 20 an MRI was performed. All were essentially normal.
Dr. Steven C. Golden, appellee’s family doctor, sent appellee to the Northeast Arkansas Rehabilitation Hospital for physical therapy, and after eleven sessions she was continuing to have significant discomfort but was discharged from physical therapy on September 23, 1991. On October 1, 1991, appellee was admitted to St. Bernard’s Regional Medical Center for a lumbar myelogram and post-myelogram CT scan. They were both normal. Dr. Golden’s office notes of October 15, 1991, state that appellee was to get a “facet joint injection on Friday at 11:30 by Dr. Tyrer at Methodist Hospital x-ray,” and on October 21, 1991, the notes reveal that appellee was to restart physical therapy, including the wearing of a TENS unit.
A letter to Dr. Golden from Dr. A. Roy Tyrer, Jr., a Memphis neurological surgeon, dated October 22 states:
As you have requested, on October 18, 1991 this lady was given a right lower lumbar facet block at the L3-4, L4-5, and L5-S1 disc levels under x-ray localization at Methodist Hospital of Jonesboro on an outpatient basis.
She tolerated the injection well. I am very hopeful it will help her chronic back and right leg symptoms.
Appellee began physical therapy again on October 28, 1991, had a second treatment on October 30, and did not return for further treatments. On November 26, 1991, Dr. Golden wrote a letter to appellee’s attorney stating:
Ms. Zwierzynski was in to. see me on November 26, 1991. At that time she indicated she was doing well and not having pain at the present time. Her strengthening exercises have helped dramatically build the strength in her leg. She is now back to baseline, perhaps maybe even a little stronger than prior to her accident. She is looking forward to going back to work, and I have released her to do so.
Appellant’s first argument challenges the sufficiency of the evidence. When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The weight and credibility of the evidence is exclusively within the province of the Commission. Morrow v. Mulberry Lumber, 5 Ark. App. 260, 635 S.W.2d 283 (1982). 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. Bearden Lumber Company v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
Appellant argues that “A lumbar strain should not generate any pain into the leg and any treatment for problems with [appellee’s] leg should not be the responsibility of Appellant.” Although appel- lee testified she hurt her knees and back when she fell and that one time after her fall, she got out of her car and her right leg “gave out on” her, the medical evidence does not indicate appellee was receiving treatment solely for a leg injury. The physical therapy may have included some leg strengthening exercises but the main thrust of the treatment was for an injury to appellee’s back.
Furthermore, Dr. Golden’s medical records clearly document pain radiating into the leg from appellee’s back injury. On July 15, August 5, September 30, and October 15, Dr. Golden’s notes indicate that appellee was complaining of back pain and leg pain.
We think the medical records clearly support the Commission’s findings that appellee suffered an injury to her back and legs when she fell on July 11, 1991; that her back pain radiated into both legs at one time or another; that the initial program of physical therapy afforded appellee no relief from the pain; that the facet joint injection relieved all of appellee’s symptoms; and that she was released to return to work in November 1991, with no permanent impairment. Therefore, we affirm the Commission’s holding that appellee is entitled to temporary, total disability benefits from July 11, 1991, through November 26, 1991.
The appellant also complains about certain evidentiary rulings made by the administrative law judge. One of appellee’s relatives testified that another member of the family had told her that appellee was swimming and dancing the weekend after her injury. The law judge sustained a hearsay objection to this testimony and stated that he would not allow appellant to even proffer it since it was clearly hearsay. However, the testimony was not stricken from the record and, therefore, the proffer issue is moot. Moreover, the Commission has broad discretion with reference to the admission of evidence, Linthicum v. Mar-Bar Shirt Co., 23 Ark. App. 26, 741 S.W.2d 275 (1987), and we find no abuse of discretion as to the ruling on the admission of this evidence.
The owner of the appellant WW.C. Bingo attempted to introduce into evidence the affidavit of a man stating that the appellee had done housecleaning for him on November 14, 1991. This document was not allowed into evidence but it was proffered. Through the same witness, appellant also attempted to introduce three videotapes. One purportedly showed appellee cleaning a Western Sizzlin Steak House in January, 1992, and the witness said she was present when it was taken. This videotape was introduced into evidence. The witness testified that the other two videotapes, which apparently contained statements by four people in appellee’s family that discuss situations where appellee was working, were taken after the previous hearing. Appellant’s counsel said he had attempted to subpoena these witnesses, but he was unable to locate them. The administrative law judge refused to allow appellant to even proffer these videotapes, stating, “I think even as a proffer it’s improper.”
Appellant argues that although this evidence was hearsay, the rules of evidence do not apply to workers’ compensation hearings, and that the videotapes showed how appellee was attempting to defraud the appellant and Commission, and would have attacked her credibility, citing Davis v. C & M Tractor Co., 4 Ark. App. 34, 627 S.W.2d 561 (1982). As appellant correctly points out, even a trial court has very limited discretion in refusing to permit counsel to proffer evidence; its only discretion is in controlling the form of the proffer and the time at which it is to be made. Sitz v. State, 23 Ark. App. 126, 743 S.W.2d 18 (1988).
This issue has been thoroughly discussed in the context of a chancery case. In Jones v. Jones, 22 Ark. App. 267, 739 S.W2d 171 (1987), where a proffer of evidence had been refused, we said:
Although the issue apparendy has never arisen in this state, courts generally have held that it is error to refuse counsel the right to make a proffer of evidence excluded by the court. State v. Shaw, 90 N.M. 540, 565 P.2d 1057 (1977); State v. Davis, 155 Me. 430, 156 A.2d 393 (1959); Ex parte Fields, 382 So.2d 598 (Ala. 1980); Hendrix v. Byers Bldg. Supply, Inc., 167 Ga. App. 878, 307 S.E.2d 759 (1983). In State v. Shaw, an objection on grounds of relevancy was sustained, after which the trial court refused to permit the defendant to proffer the excluded evidence. The New Mexico court held that the right to proffer evidence which has been excluded by ruling of the court is almost absolute. The court said:
Why is a tender of proof required? One reason is to advise the trial court of the nature of the evidence so that the trial court can intelligently consider it....
Another reason is to have the excluded evidence in the record for purposes of appellate review. If a trial court can arbitrarily deny to counsel the right to dictate into the record their offer of proof, he can prevent any consideration upon appeal as to the correctness of his own ruling as to the exclusion of certain evidence. It is obvious that this cannot be the law. (Citations omitted.)
The trial court may certainly maintain control of the proceedings. A.R.E. Rule 103 specifically provides that the trial court may control the form of the proffer. He may also decide when the proffer is to be made. There may be circumstances in which the trial court is justified in rejecting a proffer. The examples given by the New Mexico court are where the request to tender proof is untimely or where the tendered proof is clearly repetitious.
22 Ark. App. at 269-70, 739 S.W.2d at 172-73.
While we certainly cannot approve of the actions of the administrative law judge in denying the appellant the opportunity to proffer this evidence, we find several problems with the evidence which render this error harmless.
First, the medical evidence in the record clearly supports the finding that appellee sustained a compensable injury for which she was entitled to compensation, and we do not believe that evidence that appellee had worked at times would nullify the medical evidence. Second, while appellant mentioned in its notice of appeal to the Commission that “the Administrative Law Judge did not consider all evidence presented by Respondent,” the Commission’s opinion does not mention this issue. It was the appellant’s responsibility to obtain a ruling on this issue by the Commission, Barnes v. Pearson Termite and Pest Control, Inc., 266 Ark. 635, 642-43, 587 S.W.2d 823, 827 (1979). A question not passed upon below presents no question for decision here. North River Ins. Co. of New York v. Thompson, 190 Ark. 843, 846, 81 S.W.2d 19, 20 (1935). And, finally, there was no authentication of these videotapes. It isn’t clear who made the tapes, and, in fact, even the witness by whom appellant sought to introduce the tapes was not sure who the people were who were on the tapes. Under these circumstances, we cannot find that the exclusion of the tapes was reversible error.
Affirmed.
GRIFFEN, J., agrees.
Pittman, J., concurs. | [
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JUDITH Rogers, Judge.
The appellant, William Hinzman, was found guilty of raping his eleven-year-old stepdaughter, M.P., in violation of Ark. Code Ann. § 5-14-103(3) (Repl. 1993). As a result of the jury’s verdict, he was sentenced to twenty years in the Arkansas Department of Correction. Appellant raises three issues in this appeal. He contends that: (1) the trial court erred by permitting improper impeachment of M.P. with a prior inconsistent statement; (2) the trial court erred in allowing the testimony of two persons who were not previously identified as witnesses; and (3) the trial court erred in denying his motion for a directed verdict because the State failed to offer adequate proof to corroborate his confessions. Because we find merit in the first issue raised, we reverse and remand for a new trial.
As his third point, appellant contends that the trial court erred in denying his motion for a directed verdict. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Young v. State, 321 Ark. 541, 906 S.W.2d 280 (1995). 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 other trial errors. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the jury’s verdict. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996).
In August of 1993, M.P. reported to her mother, appellant’s wife, that she was being molested by appellant. M.P moved with her mother out of the home they shared with appellant, and the local authorities were notified of M.P.’s accusations. On September 15, 1993, appellant was interviewed by Lieutenant David Smith of the Saline County Sheriff’s Department. Appellant gave a recorded statement in which he confessed to committing acts of deviate sexual activity with the child. In summary, he described incidents of touching, fondling and the mutual performance of oral sex. Appellant also admitted that he had shown the child a sexually explicit video as a demonstration of “what I wanted her to do.” A transcript of the statement was introduced into evidence by the State at appellant’s trial.
Appellant attended two counselling sessions with Dr. William G. Grambling, the first in the company of his wife, and the second in the presence of both his wife and M.P.’s natural father, Jim Price. At trial, Dr. Grambling testified that at the first session he explained to appellant and his wife that, although his primary responsibility was toward the child, he would also work with them, but that he expected the truth to be told. He said that he sent appellant’s wife out of the room and that appellant looked at him and said, “I did it.” He said that appellant’s confession was discussed with his wife when she returned to the room. Dr. Grambling also testified that appellant admitted what he had done in the session attended by Jim Price. Mr. Price confirmed this in his testimony. He said that appellant admitted that he had engaged in oral intercourse with M.P. on four occasions and that appellant related that he had educated the child by showing her an “X-rated” video program.
Appellant contends that there was no evidence introduced by the State to corroborate the various confessions made by him. We cannot agree.
Unless made in open court, a defendant’s confession standing alone will not support a conviction except where “accompanied by other proof that the offense was committed.” Ark. Code Ann. § 16-89-lll(d) (1987). This requirement for other proof, called the corpus delicti, mandates only that a showing be made that the offense occurred, and nothing more. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Hearsay statements, when admitted, are sufficient to corroborate a confession. See Johnson v. State, 298 Ark. 617, 770 s.w.2d 128 (1989). Here, appellant’s wife testified, without objection, that M.P. told her that appellant had “chewed her out,” meaning that appellant had oral intercourse with her. Mrs. Hinzman further testified that M.P. reported that appellant had touched her chest and had placed his hands inside her pants. On the basis of this testimony, we cannot conclude that corroboration was lacking and hold that there was substantial evidence to support the conviction.
Prior to trial, M.P. recanted her allegations of abuse. The primary thrust of this appeal concerns the dual contentions that the trial court erred by permitting the State to call M.P. solely for the purpose of impeaching her testimony and by allowing the State to outline the substance of those statements during the impeachment process. Appellant contends that the probative value of the State’s use of the statements was far outweighed by the danger of unfair prejudice.
The issue arose in this manner. Appellant filed a motion in limine informing the court that M.P. had disavowed her accusations of sexual misconduct perpetrated by appellant. For this reason, he asked the court to prohibit the State from calling her as a witness for the purpose of impeaching her testimony with the prior statements. The court addressed the motion in chambers before the beginning of trial. After M.P. was provided the opportunity to consult with an attorney, she told the court that she would testify that the statements she had made in the past were false. The trial court ruled that it would permit the State to call her as a witness for the purposes of establishing opportunity, timing and identity. The court further ruled that, if M.P. denied making the earlier statements, then it would allow the State to impeach her with her inconsistent statements. The court also offered to instruct the jury that it was to consider the statements only for the purpose of judging the child’s credibility, but not as substantive evidence.
When M.P. testified before the jury, she said that appellant had never touched her in an inappropriate manner, and she denied that he had ever engaged in oral sex with her. M.P. admitted that she had previously reported that appellant had done those things, but she said that her statements were not true. She explained that she had falsely accused the appellant in anger over being punished for having told a lie. The trial court refused the State’s request to introduce into evidence the separate statements M.P had made to Officer Smith and a caseworker from the Saline County Department of Human Services. Over appellant’s multiple objections, the court permitted the State to question M.P. in detail and with specificity regarding the statements she had made.
In deciding this issue, we observe a few general principles. Rule 613 of the Arkansas Rules of Evidence permits extrinsic evidence of prior inconsistent statements of a witness for the purpose of impeachment if the witness is afforded the opportunity to explain or deny the statement, and does not admit having made it, and the other party is afforded the opportunity to interrogate the witness on that statement. Harris v. State, 36 Ark. App. 120, 819 S.W.2d 30 (1991); see also Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). If the witness, however, admits making the prior inconsistent statement, then extrinsic evidence of that statement is not admissible. It has been said that an admitted liar need not be proved one. Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983). See also Ford v. State, 296 Ark. 8, 753 S.W.2d 258 (1988). Also, unsworn prior statements made by a witness cannot be introduced as substantive evidence in a criminal case to prove the truth of the matter asserted therein. Ark. R. Evid. 801(d)(1)(i); Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993). See also Smith v. State, 279 Ark. 68, 648 S.W.2d 490 (1983). Therefore, the trial court was correct in its ruling that the statements previously made by M.P. could not be introduced into evidence for impeachment purposes since she admitted making them. The trial court was also correct in recognizing that the statements could not be introduced as substantive evidence since neither of them were made under oath, and were thus hearsay.
As authority for his argument, appellant places much emphasis on our decision in Gross v. State, supra. In that case, the prosecution knew, as it did here, that its witness, who had once implicated both himself and the appellant in the commission of a crime, would not testify in accordance with his earlier statement. The statement itself was not admitted into evidence, nor did the police officers who recorded the statement testify regarding it. However, the prosecution had been allowed to question the witness about the particulars of his prior inconsistent statement. In reversing, we held that the resolution of the issue was controlled by Rule 403 of the Arkansas Rules of Evidence, and we were persuaded that any advantage the prosecution may have gained by discrediting the witness was exceeded by the risk of prejudice resulting from disclosing to the jury the content of the statement.
In Gross v. State, we relied heavily on the decision in Roberts v. State, 278 Ark. 550, 648 S.W.2d 44 (1983). There, the witness first professed to have witnessed the murder of his mother by his father. In two subsequent accounts, the witness retracted that statement and gave a differing version of the events he had observed, which were less incriminating of his father. Although the witness fully admitted making the prior inconsistent statement, the trial court allowed the prosecution to introduce the complete text of the statement through another witness. On appeal, the court found error in that ruling. The court also addressed the question of whether the State could impeach its own witness by use of the prior inconsistent statement. The court held that such impeachment was permitted if the probative value on the issue of impeachment outweighs the prejudicial effect arising from the danger that the jury will give substantive effect to the prior inconsistent statement. The court concluded that, under the circumstances of that case, it was error to have allowed the State to ask the witness about the prior inconsistent statement. The court further observed:
The State argues that asking Richard about his prior inconsistent statements was for impeachment purposes, but it was really a mere subterfuge. The only conceivable reason that the State could have for impeaching its own witness was to bring before the jury hearsay information not admissible as substantive evidence, hoping that the jury would accord it substantive value although it was clearly inadmissible as such under Rule 801(d)(l)(i). In this instance the danger of convicting the defendant on unsworn testimony is too great; the limiting instruction to the jury directing them to consider the prior inconsistent statement for impeachment only was not a sufficient safeguard.
Id. at 552, 648 S.W.2d at 46.
In a subsequent decision, Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889 (1987), a witness for the State gave testimony which was contrary to an earlier statement she had made. The trial court initially ruled that the State could not ask her about the prior statement, but later allowed such questioning in light of questions asked by the defense on cross-examination. On appeal, the appellant argued that the decision in Roberts v. State, supra, disallowed any reference whatsoever to the prior inconsistent statement. The supreme court disagreed, holding that under the attendant circumstances, the questioning of the witness was not unduly prejudicial. In discussing Roberts, the court said:
Whatever the unfair prejudice may have been in that case, we do not find it here. The ruling in the Roberts case that the prior statement itself could not be quoted into evidence as part of the impeachment process was consistent with prior Arkansas cases, and indicated that the adoption of A.R.E. 613 had not presaged any change in that respect. However, if we meant to say there that the fact that a reference to, rather than a quotation of, a prior inconsistent statement was unfairly prejudicial because it came in the form of the state’s impeachment of its own witness, we failed to take account of A.R.E. 607. That rule makes it clear that there no longer is a general prohibition against such impeachment.
Pemberton v. State, at 408-409, 730 S.W.2d at 891. (emphasis supplied) (citations omitted).
With these decisions in mind, we conclude that the State’s use of the statements exceeded the parameters of proper impeachment. In questioning M.P., the prosecutor quoted from the statements, line by line, in effect reciting the statements into the record. We must agree with appellant that this tactic allowed the State to accomplish through the back door that which it could not have achieved directly. As stated above, the statements were not admissible for purposes of impeachment since M.P. had admitted making them, and the statements were not admissible as substantive evidence because they were not made under oath. By proceeding in this manner, the danger was too great that the jury would accord the statements substantive value.
Whether or not the State should have been allowed to impeach M.P. by reference to the previous statement is another issue. As pointed out by the supreme court in Pemberton v. State, supra, the impeachment of a party’s own witness is generally permitted under Rule 607 of the Arkansas Rules of Evidence. See also Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). In accordance with that decision, and the opinions in Roberts v. State, supra, and Gross v. State, supra, the answer to this question is governed by Rule 403 of the Rules of Evidence. Since we are reversing this case because the State exceeded the bounds of permissible impeachment, we address this question only to the extent that it may arise on retrial. Since the complexion of the case will likely be different on remand, we are not willing to decide at this time whether impeachment of the witness will be permitted, and instead we leave it for the trial court to determine, in its discretion, whether the risk of unfair prejudice will outweigh the probative value of impeachment.
As his last issue, appellant argues that the trial court erred by not excluding the testimony of Dr. Grambling and Jim Price, who were called by the State in light of M.P.’s disaffirmance of her previous statements. Appellant objected and requested a continuance, alleging a discovery violation because neither of them had been listed by the State as potential witnesses. The court allowed the State to present their testimony and initially denied appellant’s request for a continuance, but the court later altered its ruling by granting a three-week continuance after the witnesses had been examined. In granting the continuance, the trial court stated that it was doing so “out of an abundance of caution,” but that it did not feel that appellant had been surprised or prejudiced by the witnesses’s testimony. The court also stated that he would permit appellant further cross-examination of the witnesses and later, when trial resumed, the court stated that it would strike any part of the witnesses’s testimony which appellant showed to be objectionable.
Rule 17.1 of the Rules of Criminal Procedure requires the prosecution to give the names and addresses of witnesses it intends to call at trial, and Rule 19.2 imposes a continuing duty to disclose this information. The required notification must be accomplished in sufficient time to permit beneficial use by the defense. Robinson v. State, 317 Ark. 407, 878 S.W.2d 405 (1994). The trial court has four options under Rule 19.7 to remedy a violation of the rules: permit discovery, exclude the undisclosed evidence, grant a continuance, or enter an order as the court deems appropriate under the circumstances. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). The key in determining if a reversible discovery violation exists is whether the appellant was prejudiced by the prosecutor’s failure to disclose; absent a showing of prejudice, we will not reverse. Burton v. State, 314 Ark. 317, 862 S.W.2d 252 (1993).
Appellant’s claim of prejudice is based on the argument that the witnesses’ testimony was privileged under Rule 503 of the Rules of Civil Procedure, which sets out the psychotherapist-patient privilege. Appellant’s claim of prejudice is misplaced in that the record reflects that the communications made by appellant in the counselling sessions were not “confidential.”
Rule 503(b) provides:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his ... confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
A communication is “confidential” if it is not intended to be disclosed to third persons, except persons present to further the interest of the patient, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family. Ark. R. Evid. 503(a)(4).
Dr. Grambling testified that he explained to appellant that he would report his findings to the prosecuting attorney’s office and the Department of Human Services, and said that he did indeed make reports to both of those entities. Thus, it cannot be said that appellant can successfully claim that his communications during those sessions were privileged. In addition, the court allowed a lengthy continuance, permitted the opportunity for further cross-examination and stated its willingness to strike any part of the witnesses’s testimony that proved inadmissible. Although we agree with appellant that the better course would have been for the court to have allowed a continuance before the witnesses testified, we cannot say that the court’s action amounted to an abuse of discretion under these circumstances. See Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).
Reversed and remanded.
PITTMAN and COOPER, JJ., agree. | [
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John Mauzy Pittman, Judge.
In this appeal, the Attorney General challenges orders of the Arkansas Public Service Commission (Commission) finding that the Attorney General’s complaint failed to state a cause of action upon which relief could be granted and that the Commission lacked jurisdiction to hear the complaint. Because we find that the complaint failed to state a cause of action, we limit our discussion to the sufficiency of the complaint and do not reach the jurisdictional issue.
On August 8, 1994, the Consumer Utilities Rate Advocacy Division (CURAD) of the Attorney General’s office filed a complaint “on behalf of and for” Arkansas utility ratepayers, alleging that Southwestern Bell Telephone Company (SWB) had been “unjusdy enriched” by providing and charging customers for an optional service without authorization. The Attorney General asserted that he was charged with representing the interests of Arkansas utility ratepayers by Arkansas Code Annotated §§ 23-4-301 through 23-4-307 (1987), the statutes that created CURAD, and that he was authorized by Arkansas Code Annotated § 23-3-119 (1987), the statute that provides for the bringing of a complaint to the Commission by any entity or person unlawfully treated by a public utility, to bring the complaint on behalf of the affected Arkansas ratepayers. The Attorney General stated that SWB’s trunk conditioning service had been unbundled from SWB’s trunk rate [for PBX customers] in 1985 and that subsequently SWB’s applicable tariff was revised to give the conditioning service a separate product code (LOS) and rate. The Attorney General then alleged:
Despite the optional nature of conditioning service, SWB began charging certain customers the new separate rate for the service and failed to notify those customers of their right not to have the service. Moreover, the separate rate is not specifically stated on the face of the customers’ bills; rather, it is included in an item that appears on the customers’ bill simply as “monthly charge,” which includes various charges.
The Attorney General concluded that “there may be numerous customers of SWB who are being wrongfully charged for LOS service and possibly for other optional services without authorization.” The Attorney General sought discovery “to determine the extent of SWB’s unauthorized and wrongful charging”; a public hearing on the issue of SWB’s “unauthorized and wrongful charg ing”; a refund of all amounts wrongfully charged; and an order from the Commission for SWB to cease and desist from its unauthorized and wrongful charging for optional, unnecessary, or non-functional services.
SWB responded to the complaint with a motion to dismiss. In Order No. 2, the Commission found that the complaint could properly be dismissed for failure to state a cause of action and because it lacked jurisdiction to hear a class action. The Commission, however, held SWB’s motion to dismiss in abeyance for thirty days in order to give the Attorney General the opportunity to amend his complaint to state a cause of action and to specify the individual SWB customers he represented.
In his amended complaint, the Attorney General again claimed that he was authorized to present a complaint on behalf of the affected ratepayers but failed to identify any specific SWB customers harmed by SWB’s actions. The Attorney General alleged that: “In May, 1985, SWB began charging the trunk customers the new separate rate for the service, but failed to notify them of their right not to have the service, or of the advisability of consulting their vendors to determine whether the service was necessary.” The amended complaint sought notice to Arkansas ratepayers who have PBX systems, a public hearing, refunds to customers charged without their authorization from May 1985, and cessation of the alleged unauthorized charging for LOS service. SWB filed a motion to dismiss the amended complaint, stating in part that the Attorney General had failed to set forth facts to support specifically alleged violations of law and specific individual customers who were aggrieved by the alleged violations.
On November 23, 1994, the Commission dismissed the amended complaint for failure to state a claim pursuant to Section 23-3-119 and Rule 10.02 of the Commission Rules of Practice and Procedure and as a class action complaint exceeding the scope of the Commission’s jurisdiction. The Commission found that the Attorney General had not alleged or shown that SWB had violated any law that the Commission has jurisdiction to administer, or any order, rule, or regulation of the Commission. On appeal, the Attorney General argues that the Commission failed to pursue its statutory authority; that it erred in holding that the Attorney General was attempting to bring a class action; and that it erred in holding that the Attorney General’s complaint failed to state a cause of action.
Before we address the Attorney General’s arguments, some discussion of the service in question is appropriate. The conditioning service was unbundled from, or separated from, SWB’s trunk rate in the context of a 1985 SWB rate case. Although the record does not include a copy of the applicable tariff that resulted from that rate case, we have been able to glean information about the conditioning service from the record and discussion at oral argument. It is apparent that the service applies to the local loop portion of the trunk between SWB’s central offices and the customers’ premises. The service is designated a “special circuit” with guaranteed service parameters. Its purpose appears to be to control distortion and other inappropriate noise on the lines. Service customers receive priority handling through a special service center as to trouble reports, repair, and testing. The service is available to both residential and business customers but appears to be directed toward business customers that handle large volumes of calls, such as hospitals and hotels. The tariff provides that the service is “normally required when voice grade line is connected to customer provided switching systems.” Apparently, the service is mandatory for systems using certain types of trunks.
We turn now to the sufficiency of the complaint fried by the Attorney General and the Commission’s finding that the Attorney General failed to state a cause of action. We address this issue first because we find it dispositive of the rest of the appeal. The thrust of the Attorney General’s amended complaint is that SWB is charging some of its customers for LOS service without having notified them that this coverage became optional in 1985. When the conditioning service was unbundled from SWB’s trunk rate in the 1985 rate case, SWB was not specifically ordered by the Commission to advise its customers who had previously been receiving the service. The Attorney General does not contend that SWB failed to comply with statutory and Commission notice requirements attendant to the change in rates. Furthermore, there is no evidence that any party to the rate case asked the Commission to order individual notices or separate line item billing or that any party appealed from the rate case alleging that such action should have been taken.
In Order No. 2, the Commission noted that the Attorney General had neither identified any specific customers to whom its complaint referred nor stated any specific acts to support its com plaint. The Commission stated that Arkansas law requires fact pleading and concluded that the Attorney General’s complaint failed to meet this requirement. The Commission, however, gave the Attorney General an opportunity to amend its complaint to name individual consumers who have specific complaints against SWB. The Attorney General failed to do this in his amended complaint. Instead, he generally alleged that “all customers who had voice grade conditioned trunks prior to the [1985 rate case] have been wrongfully charged for LOS service every month from and after May, 1985.” In Order No. 4, which dismissed the Attorney General’s amended complaint, the Commission held:
The [Attorney General’s] Amended Complaint states that the [Attorney General] is the Complainant but its Complaint is on behalf of utility ratepayers “who have been charged for LOS service without their authorization.” Amended Complaint at 1. The [Attorney General] has failed to identify any entity or individual that fits within this classification in either the Complaint or Amended Complaint, nor has any individual or entity sought to join in the [Attorney General’s] Complaint or Amended Complaint. The [Attorney General], the named Complainant in this Docket, does not allege that it has ever received or been charged for LOS service or that the [Attorney General] is a customer of [SWB].
The [Attorney General] does not allege, that [SWB] failed to comply with Commission Rules regarding publication of notice of proposed changes in rates in Docket No. 84-165-U, the Docket in which the rate was unbundled. The [Attorney General] does allege that [SWB] did not show LOS service as a line item on bills and that [SWB] did not inform each individual customer of the optional nature of LOS service after May, 1985. However, the [Attorney General] does not cite any requirement in law or Commission orders in Docket No. 84-165-U which required a special line item on bills for LOS service or personal notification of the change in LOS service. The [Attorney General] does not allege that any customer charged for LOS service has not been provided that service.
The Amended Complaint of the [Attorney General] does not claim that [SWB] has violated any laws, orders, or rules and regulations which the Commission has authority to administer. Taken as true and correct, the Amended Complaint merely reflects that [SWB] charged for and provided one or more unnamed customers an optional service, LOS. Providing utility service pursuant to a filed tariff does not constitute a cause of action for a complaint.
Ark. Code Ann. § 23-3-119(a)(1) and Rule 10.02 specify that a complaint must set forth clearly and fully the act or violation of any order, law or rule which is the subject of the complaint. In Order No. 2, the Commission advised the [Attorney General] that its Complaint failed to meet the requirements of the statute and rule and allowed the [Attorney General] time to amend the Complaint to cure the cited deficiencies. The [Attorney General’s] Amended Complaint does not cure the cited deficiencies. In the Amended Complaint, the [Attorney General] failed to identify a complainant who is a customer of [SWB] and who allegedly has been unlawfully treated by [SWB], and the Amended Complaint fails to identify any violation or alleged violation of any law, order or rule arising from the public utility statutes. The Amended Complaint should be and hereby is dismissed.
We agree with the Commission’s conclusion that the Attorney General’s amended complaint failed to state a cause of action. Rule 10.02(c) of the Commission’s Rules of Practice and Procedure requires that:
Each formal complaint shall fully and clearly set out any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the Commission has jurisdiction to administer, or of any order or rule of the Commission and the exact relief which is desired. The complaint shall contain facts and information sufficient to fully apprise the Commission and the respondent of the facts and issues involved and to enable the respondent to prepare its answer to the complaint.
This rule is a reflection of the clear standard adopted in Arkansas, which requires fact pleading: “[a] pleading which sets forth a claim for relief ... shall contain (1) a statement in ordinary and concise language of facts showing that ... the pleader is entitled to relief ...” Ark. R. Civ. P. 8(a)(1). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted...” These two rules must be read together in testing the sufficiency of the complaint; facts, not mere conclusions, must be alleged. Hollingsworth v. First Nat’l Bank and Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993); Rabalaias v. Barnett, 284 Ark. 527, 683 S.W.2d 919 (1985). In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and pleadings are to be liberally construed. Id.
The Attorney General filed his complaint and amended complaint pursuant to Section 23-3-119, which provides in part:
(a)(1) Any chamber of commerce or board of trade, mercantile, agricultural, or manufacturing association, any public utility, any municipality, any customer of a public utility, any person unlawfully treated by a public utility, or any public utility unlawfully treated by a customer, may complain to the commission in writing. The complaint shall set forth any act or thing done or omitted to be done by any public utility or customer in violation, or claimed violation, of any order, law, or regulation, which the commission has jurisdiction to administer.
This court must construe a statute just as it reads by giving the words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Viewed in this light, it is clear that to bring a complaint pursuant to this statute, the complainant must have been unlawfully treated by a public utility. This complaint is brought by the Attorney General who has not alleged that either he or the state has been unlawfully treated. Even if this court were to accept the Attorney General’s second argument — that he can represent the affected ratepayers collectively — this statute requires a named complainant who has been unlawfully treated by the utility.
In his amended complaint, the Attorney General continued to assert that he was representing those Arkansas ratepayers charged for the service without authorization. He sought to cure the deficiencies in his complaint by alleging that some unnamed SWB customers had requested and received termination of the conditioning service with no resulting impairment to the quality of service received. In addition, he alleged that SWB had only made partial refunds to those customers of the amount paid for the conditioning service since 1985. These generalities and conclusions are not sufficient to cure the fatal flaw in the complaint. The facts constituting a cause of action must be pled in direct and positive allegations, not by way of argument, inference, or belief. Big A Warehouse Distrib., Inc. v. Rye Auto Supply, Inc., 19 Ark. App. 286, 719 S.W.2d 716 (1986). Statements of generalities and conclusions of law are not sufficient to state a cause of action. Id.
In denying the Attorney General’s petition for rehearing in Order No. 5, the Commission further explained:
The [Attorney General] continues to repeat its contention that the Commission has jurisdiction to hear the [Attorney General’s] Complaint and Amended Complaint because the Commission can order a remedy in the form of refunds. However, the [Attorney General] has yet to even allege that [SWB] has violated any tariff, rule, law or order which is jurisdictional to the Commission and which would form the jurisdictional and legal basis for the Commission to consider a remedy. The [Attorney General] apparently believes that it can bypass any legal deficiencies in its pleadings by leaping to the remedy without stating a cause of action. The Commission has the authority to order refunds as a remedy when a consumer has been charged unlawfully by a utility but first there must be a complaint and proof of an unlawful charge before a remedy is imposed....
A further flaw in the [Attorney General’s] argument is that if the Commission were to consider the [Attorney General’s] Amended Complaint, to whom would refunds be made and in what amount? A refund is the return of an amount paid. The [Attorney General] does not allege that its Amended Complaint is applicable to all [SWB] customers, but there is no named complainant who alleges it has been unlawfully charged in this Docket. The [Attorney General] does not allege that it has received or been charged for LOS service, nor does the [Attorney General] even allege that it is a [SWB] customer. No complainant has ever been named who allegedly received or was charged for LOS service. Without at least one such individual, no refund could be calculated or awarded by the Commission.
This court must examine the complaint in light of Section 23-3-119 and the well established rules previously set out. Simply put, the Attorney General has failed to identify a complainant who is a SWB customer and who allegedly has been unlawfully treated by SWB. Because the Attorney General has failed to conform with the minimal pleading requirements of Section 23-3-119 and Rule 10.02(c) of the Commission’s Rules of Practice and Procedure, it is unnecessary for us to address the other points raised by the Attorney General. We affirm the Commission’s dismissal of the complaint.
Affirmed.
Jennings, C.J., Robbins, and Neal, JJ., agree.
Rogers, J., concurs.
Mayfield, J., dissents. | [
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JUDITH Rogers, Judge.
The appellant, William Benton, appeals from a $5,000 judgment in favor of appellee, Bill Barnett, which was entered upon a jury’s verdict. For reversal, appellant contends that the trial court erred in denying his motion for a new trial. We affirm.
Appellant filed a complaint in battery against appellee for injuries he had sustained, alleging that appellee had attacked and beaten him without provocation during an altercation at a service station. Appellee answered and filed a counterclaim against appellant, contending that the allegations in appellant’s complaint were knowingly false and that the suit was brought for purposes of “harassing, annoying, alarming, vexing, and causing financial loss” to him. Based on this claim, appellee sought “judgment over” against appellant, Rule 11 sanctions, punitive damages, costs and attorney’s fees.
The case proceeded to trial. In summary, appellant testified that he and appellee exchanged words and that appellee hit him as many as five times, knocking him backwards into a drink machine and causing his nose and face to bleed. Appellee, who was not injured in the fray, admitted hitting appellant but said that he did so only after appellant had attempted the first blow. The jury returned a verdict for appellee in the amount of $5,000.
Appellant filed a motion for a new trial pursuant to Rule 59 of the Arkansas Rules of Civil Procedure. In this motion, appellant contended that appellee “presented no evidence at trial of any damages he suffered” and that the award of “damages assessed by the jury ... was in error and clearly contrary to a preponderance of the evidence.” The trial court denied the motion, stating in its order that there had been “testimony and certainly argument concerning the employment of counsel to defend this lawsuit.” This appeal followed.
For reversal, appellant contends that appellee presented no evidence of damages in support of his claim. He further argues that appellee’s counterclaim did not state a cause of action in tort. He maintains that the jury’s verdict was essentially an award of attorney’s fees and argues that attorney’s fees are not a proper element of damages, since attorney’s fees are not allowed unless expressly authorized by statute. See Elliot v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). In support of his arguments, appellant alludes to the testimony of appellee when he was asked by his own attorney what damages he was seeking, to which appellee replied, “Well, basically it’s cost me quite a bit of money to put up with this for four years and finally come to this conclusion.” Appellant also points to argument made in closing by appellee’s counsel asking the jury to award appellee $5,000 for his attorney’s fees “to send a message to” the appellant. In defense of the trial court’s decision, appellee contends that appellant’s arguments were not properly preserved for appeal. We agree.
It is obvious from a reading of appellant’s motion for a new trial and his supporting brief that it was, and remains, appellant’s contention that there was no evidence presented by appellee to justify the submission of the case to the jury. Appellant, however, failed to challenge the sufficiency of the evidence by motion for a directed verdict, as is required under Rule 50(e) of the Rules of Civil Procedure. Instead, he raised the issue by motion for a new trial under Rule 59. Although Rule 59 specifically states that a motion for a new trial may be granted where the verdict is clearly contrary to the preponderance of the evidence, Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), such a motion, however, does not test the sufficiency of the evidence to go to the jury. Id. See also Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). A party must test the sufficiency of the evidence by motions for directed verdict and judgment notwithstanding the verdict, not by a motion for a new trial. Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987). Therefore, appellant’s challenge, to the sufficiency of the evidence must fail. We recognize that this distinction is a fine one indeed, but it is one that has been fashioned by the supreme court.
With regard to appellant’s remaining arguments concerning the sufficiency of appellee’s counterclaim and the verdict being tantamount to an award of attorney’s fees, these matters were not included in his motion for a new trial. Moreover, at no time before trial did appellant complain by appropriate motion about any deficiencies with respect to appellee’s complaint for damages. Neither did he raise any objection to the testimony offered by appellee relative to his claim, nor did he object to the argument of appellee’s counsel. Likewise, appellant raised no objection to the jury being offered a verdict form allowing it to assess damages in appellee’s favor. It is a well-settled rule that issues not raised in the trial court will not be considered for the first time on appeal. Stacks v. Jones, 323 Ark. 643, 916 S.W.2d 120 (1996). Since appellant did not raise these issues in his motion for a new trial, we will not address them. It remains to be seen whether it would have been appropriate for appellant to have asserted these matters in a motion for a new trial, in the absence of any prior objection. See Stacks v. Jones, supra., Newbern, J., concurring.
Affirmed.
Jennings, C.J., and Neal, J., agree. | [
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JAMES R. Cooper, Judge.
The appellee, Student Loan Guarantee Foundation of Arkansas, filed suit against the appellant in the Circuit Court of Pulaski County, Arkansas, seeking to collect on student loan notes which were alleged to be in default. The appellant, a Tennessee resident, was served with a copy of the summons and complaint in Tennessee. The appellant filed a “special appearance” and moved to dismiss for lack of personal jurisdiction. The trial court subsequendy entered a default judgment for the appellee. The appellant filed a motion to set aside the default judgment, again asserting lack of personal jurisdiction. The trial court denied the appellant’s motion to set aside the default judgment on January 30, 1995. From that decision, comes this appeal.
For reversal, the appellant contends that the default judgment is void because the trial court lacked personal jurisdiction over the appellant. We agree, and we reverse and dismiss.
Jurisdiction in the case at bar is premised on Ark. Code Ann. § 16-4-101(C)(1) (Repl. 1994), which provides that a court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s transacting any business in this state. Our Supreme Court has stated that the purpose of the “transacting business” provision of Ark. Code Ann. § 16-4-101 (C)(1) is to permit Arkansas courts to exercise the maximum in personam jurisdiction allowable by due process. Szalay v. Handcock, 307 Ark. 232, 819 S.W.2d 684 (1991). Consequently, the question in the case at bar is whether the exercise of personal jurisdiction over the appellant comports with due process.
Under International Shoe Co. v. Washington, 326 U.S. 310 (1945), due process is satisfied where there exist such minimum contacts between the nonresident defendant and the forum state that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. In determining whether a nonresident’s contacts with the forum state were sufficient to impose jurisdiction, we have considered (1) the nature and quality of the contacts with the forum state, (2) the quantity of the contacts with the forum state, (3) the relation of the cause of action to the contacts, (4) the interest of the forum state in providing a forum for its residents, and (5) the convenience of the parties. Moran v. Bombardier Credit, Inc., 39 Ark. App. 122, 839 S.W.2d 538 (1992).
In the case at bar, the appellant filed with the trial court an affidavit stating that he was a Tennessee resident, that he never resided or engaged in business in Arkansas; that he signed the notes at issue in Tennessee; and that his children, for whose benefit the notes were executed, went to school in Tennessee. The appellee’s assertion that the appellant transacted business in Arkansas is premised solely on two facts: (1) that the guaranteed student loan was made by an Arkansas bank, and (2) that the guarantor was an Arkansas corporation.
Although a single contract can provide the basis for the exercise of jurisdiction over a nonresident defendant if there is a substantial connection between the contract and the forum state, CDI Contractors, Inc. v. Goff Steel Erectors, Inc., 301 Ark. 311, 783 S.W.2d 846 (1990), we think that the connection in the present case is too tenuous to support a finding of personal jurisdiction. As was the case in CDI Contractors, supra, the contract in the case at bar was signed by the appellant outside of Arkansas and provided only that payments be mailed to Arkansas. However, it has been held that the use of arteries of interstate mail and banking facilities, standing alone, is insufficient to satisfy due process in asserting long-arm jurisdiction over a nonresident. CDI Contractors, supra; Mountaire Feeds, Inc. v. Argo Impex, 677 F.2d 651 (8th Cir. 1982). Insofar as the connection to Arkansas in the present case is premised solely upon the use of interstate mail and banking facilities, we hold that the trial court lacked personal jurisdiction over the appellant.
Reversed and dismissed.
Robbins and Stroud, JJ., agree. | [
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JOHN Mauzy Pittman, Judge.
Crawford Construction Company, Inc., appellee, filed a complaint in the Sebastian County Circuit Court against 200 Garrison Associates, appellant, alleging that appellant owed appellee a balance of $154,172.24 on the parties’ breached construction contract. Appellant filed a counterclaim contending that appellee had breached the contract by providing substandard materials and workmanship and erroneous billings. The parties’ contract contained a statutory arbitration clause. The circuit court stayed the proceedings and directed that the parties submit their dispute to arbitration with the American Arbitration Association. Appellant then filed an arbitration claim against appellee, and appellee counterclaimed. On October 25, 1993, the arbitrator denied appellant’s claim, awarded appellee $154,172.24 on its coun terclaim and denied appellee’s claim for interest and costs. On January 21, 1994, appellant filed a motion in the circuit court to modify or vacate the arbitrator’s award.
After a hearing, the circuit court held that the arbitrator’s award of $154,172.24 erroneously included $6,908.24 in interest and that appellant failed to demonstrate a miscalculation in the amount of damages awarded. In addition, the court awarded pre- and post-judgment interest on the reduced award of $147,264.00 ($154,172.24 - $6,903.24). The appellant appeals the circuit court’s order arguing that the court erred in affirming the arbitrator’s award of damages and by awarding pre- and post-judgment interest.
An arbitrator’s award may be modified or corrected by the court if there is evident miscalculation of figures in the award. Ark. Code Ann. § 16-108-213(a)(1) (1987). An arbitrator’s decision on all questions of law and fact is conclusive and should be affirmed by the court unless grounds are established to support vacating or modifying the award. McLeroy v. Waller, 21 Ark. App. 292, 731 S.W.2d 789 (1987). Judicial review of an arbitration award is more limited than appellate review of a trial court’s decision; whenever possible, a court must construe an award so as to uphold its validity. Chrobak v. Edward D. Jones & Co., 46 Ark. App. 105, 878 S.W.2d 760 (1994). An award should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or misfeasance or malfeasance. Id. Moreover, the illegality must appear on the face of the award. Id. Even a gross mistake of fact will not vitiate an award unless the mistakes are apparent on the face of the award. Ark. Dep’t of Parks and Tourism v. Resort Managers, Inc., 294 Ark. 255, 743 S.W.2d 389 (1988).
Appellant first argues that the arbitrator’s award of damages contained miscalculations. Appellant lists in dispute six items under the contract. All are factual issues, and appellant admits that the same evidence presented to the circuit court was presented to the arbitrator. Because there is no mistake evidenced on the face of the arbitrator’s award of damages, the court did not err in finding that appellant had not shown a miscalculation.
Appellant next argues that the circuit court erred by awarding pre- and post-judgment interest because the arbitrator denied appellee’s request for interest. We agree. Arkansas Code Annotated § 16-108-213(b) states that unless the award is modified, the court “shall confirm the award as made.” Thus, we reverse the circuit court’s award of interest.
Appellee cross-appeals the circuit court’s reduction of the award from $154,172.24 to $147,264.00, or $6,908.24, which was allegedly pre-arbitration interest. Appellee argues that the arbitrator granted its claim for $154,172.24. There is no evidence on the face of the arbitrator’s award of $154,172.24 that it included $6,908.24 in interest.
There being no evidence that there was a miscalculation on the face of the arbitrator’s award, we remand for the circuit court to enter judgment affirming the arbitrator’s award of $154,172.24.
Affirmed in part; reversed in part.
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James R. Cooper, Judge.
The appellant was convicted in a jury trial of three counts of delivery of a controlled substance, marijuana. He was sentenced to serve consecutive sentences of ten years on each count for a total of thirty years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion for a mistrial; that the evidence is insufficient to support his conviction; and that the trial court erred in ordering his sentences to run consecutively. We affirm.
For his second argument, the appellant challenges the sufficiency of the evidence. He asserts that the State failed to prove that the green vegetable matter introduced into evidence as State’s Exhibit 3 was actually marijuana because Roy J. Adams, Jr., a forensic drug chemist from the Arkansas State Crime Laboratory, failed to identify the exhibit as marijuana. We consider a challenge to the sufficiency of the evidence prior to a review of any alleged trial errors. Kennedy v. State, 49 Ark. App. 20, 894 S.W.2d 952 (1995). However, the appellant’s argument is not preserved for appellate review.
At the close of the State’s case, the appellant made the following motion for a directed verdict:
Thank you, your Honor. We would also move for a directed verdict on the three counts of delivery, feeling that the State has failed to meet the burden of proof and produce sufficient evidence that this Defendant delivered the substances, and that they were delivered for money or other consideration. All of the proof was that they never found any money. So that’s our motion.
A motion for a directed verdict must be specific enough to apprise the trial court of the particular basis on which the motion is made. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995). The reasoning underlying this rule is that when specific grounds are stated and the proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994). Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Stewart, supra.
In the case at bar, the appellant did not make the specific argument to the trial court that he now makes on appeal. Therefore, his motion for a directed verdict was inadequate to preserve for review the specific argument he now raises.
Moreover, we find the evidence to be sufficient on this point. Amy Hodges was the undercover officer who purchased the marijuana from the appellant on March 29, April 2, and April 12, 1993. Officer Hodges testified, without objection, that she went to the appellant’s residence to purchase a quarter pound of marijuana on three separate occasions. She testified that each time the appellant retrieved a large plastic ziplock bag full of marijuana from a duffel bag, he took some marijuana from the ziplock bag and placed it into another bag for her. Officer Hodges testified that she paid the appellant $350.00 for each quarter pound of marijuana.
Officer Hodges was working with and turned over the evidence to Roger Ahlf, an investigator with the State Police. Officer Hodges and Investigator Ahlf both identified, again without objection, State’s Exhibit #3 as the marijuana purchased from the appellant.
The appellant also argues that the trial court should have granted his motion for a mistrial because the prosecuting attorney improperly commented on his failure to testify when she stated during closing arguments, “You know, a typical defense ploy is to throw stones at the way the police handle a case when they don’t have a defense.” However, this argument is also not preserved for review because the appellant failed to make a timely objection and motion for a mistrial.
The appellant did not object to the prosecutor’s statements until after the jury had retired to deliberate. It is settled law that for the trial court to have committed reversible error, timely and accurate objections must have been made, so that the trial court was given the opportunity to correct such error. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987). In order to preserve for appellate review an allegation that the prosecuting attorney made an improper argument during his or her closing address to the jury, the defendant must make immediate objections to the statement at issue. Id.; Jones v. State, 248 Ark. 694, 453 S.W.2d 403 (1970). Further, we do not think the prosecutor’s statement was an improper comment on the appellant’s failure to testify.
For his third argument, the appellant asserts that the trial court erred in failing to exercise its discretion when it ordered his sentences to run consecutively. It is within the province of the trial court to determine whether sentences should proceed consecutively or concurrendy, and the decision is left to the sound discretion of the trial court. Broum v. State, supra. The Court has remanded for resentencing when it was apparent that the trial court did not exercise its discretion. Wing v. State, 286 Ark. 494, 696 S.W.2d 311 (1985).
Here, the trial court explained that it was taking several factors into consideration in denying the appellant’s request that his sentences be run concurrently. The trial court stated:
This Court feels that [the appellant] has been convicted by a jury of three counts of delivery of marijuana, involving three separate, distinct sales occurring on March 29th, April 2nd, and April 12th. The sales involved were of no small quantity. Each of the sales involved approximately one-quarter pound of marijuana, which this Court considers to be a rather large amount of marijuana to take place in a single transactional sale. We’re not talking about a small baggie that is typically delivered by individuals in this county to persons who intend to smoke or consume marijuana for their own use. We’re talking about three sales in large quantities in large bags that amount to over, or approximately three-quarters of a pound of marijuana in fifteen days to the same person. This Court feels that that is. an aggravating circumstance that it must consider, the large quantity of marijuana that is — that was sold, the fact that it was a repeated sale to the same person of almost three-quarters of a pound of marijuana, which would certainly cause one to wonder what [the appellant] thought his purchaser was doing with three-quarters of a pound of marijuana in fifteen days. ... With those circumstances and with that evidence, this Court feels that the proper and the prudent sentence to impose would be to impose the sentences as a consecutive sentence to reflect the total finding of the jury and that is what I intend to do.
We think that these statements clearly show that the trial court carefully and thoughtfully analyzed the facts and exercised its discretion appropriately.
Affirmed.
Robbins and Mayfield, JJ., agree. | [
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John B. Robbins, Judge.
On September 29, 1993, an automo bile owned by Lucille and Henry McCane was damaged in an accident. The vehicle was insured by appellant Colonia Underwriters Insurance Company (Colonia). Appellee Worthen National Bank of Arkansas (Worthen) was the lienholder and filed a claim for recovery as loss payee. Colonia responded that it had denied coverage to the McCanes and that Worthen had no greater right to recover than the policy holders. Worthen then brought suit against Colonia, seeking the proceeds for the loss pursuant to the insurance policy. Subsequently, both Worthen and Colonia filed motions for summary judgment on the issue of liability. The trial court entered partial summary judgment in favor of Worthen on this issue, and a trial followed solely on the issue of damages. Worthen was ultimately awarded approximately $7,500 in damages plus attorney’s fees. Colonia now appeals, arguing only that the trial court erred as a matter of law in granting Worthen’s motion for summary judgment as to the liability issue. We agree and reverse.
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. Arkansas Blue Cross and Blue Shield v. Hicky, 50 Ark. App. 173, 900 S.W.2d 598 (1995). All proof submitted must be considered in the light most favorable to the non-moving party, and any doubts or inferences must be resolved against the moving party. Wozniak v. Colonial Ins. Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994). On appeal, we determine whether the evidence presented by the movant leaves a material question of fact unanswered. Bellanca v. Arkansas Power and Light Co., 316 Ark. 80, 870 S.W.2d 735 (1994).
In the case at bar, it is undisputed that on November 11, 1992, Lucille and Henry McCane executed a retail installment contract and security agreement for the purchase of a Nissan Stanza automobile from Mike Baker Nissan. Mike Baker Nissan then assigned all its rights, tide, and interest in the installment contract and vendor’s lien to Worthen, representing and securing the deferred balance of $13,053.12 plus eight percent annual interest. On the same day, the McCanes obtained insurance on the vehicle from Colonia, which policy was renewed on June 25, 1993, for one year to expire June 25, 1994. Worthen was named as loss payee in the insurance policy.
After the automobile was damaged in the September 23, 1993, accident, the McCanes stopped making timely payments on the installment note. Therefore, on January 26, 1994, Worthen repossessed the damaged vehicle and sought payment from Colonia pursuant to Ark. Code Ann. § 23-79-104 (Repl. 1992), which provides:
(a) No contract of insurance of property or of any interest in property or arising from property shall be enforceable as to the insurance except for the benefit of persons having an insurable interest in the things insured at the time of the effectuation of the insurance and at the time of the loss.
(b) “Insurable interest” as used in this section means any actual, lawful, and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage or impairment.
Upon being notified of Worthen’s claim, Colonia responded that neither Worthen nor the McCanes were entitled to recovery due to an exclusion under the policy. Colonia referred to an endorsement signed by Lucille McCane and an authorized insurance representative on June 25, 1991. This endorsement was captioned “EXCLUSION OF NAMED DRIVER” and provided that there would be no insurance coverage under the existing policy, and any subsequent or new policy, for any claim arising out of an accident where the vehicle was being operated by Henry McCane. A similar endorsement later excluded coverage where the vehicle was being driven by Lucille McCane. The apparent reason for these endorsements was because the couple was elderly and other family members were available who could drive them when necessary. Because Henry McCane was driving the car at the time of the September 29, 1993, accident, Colonia informed Worthen that there was no coverage because of the exclusion in the policy.
In its motion for partial summary judgment, Worthen acknowledged that an exclusion agreement had been executed between Colonia and the McCanes. However, Worthen asserted that the endorsement did not bar recovery because it was never made aware of this exclusion provision. Worthen stated that, when the policy for the Nissan Stanza went into effect on November 11, 1992, it was not informed of any such exclusion. Worthen further noted that, when the policy was renewed on June 25, 1993, Colonia provided it with a “declarations page,” which named Worthen as the loss payee but failed to disclose any exclusion agreement regarding Henry McCane. It was not until after the accident that Worthen learned of the exclusion agreement. The trial court was persuaded by Worthen’s argument, and granted summary judgment for Worthen on the liability issue.
For reversal, Colonia asserts that Worthen, as loss payee, had the same rights under the insurance policy as the named insured. Colonia argues that, although it never direcdy informed Worthen of the exclusion provision, if Worthen had requested copies of all of the endorsements which accompanied the policy it would have discovered this information. Colonia points out that an insured has a duty to educate himself concerning matters of insurance coverage, see Scott-Huff Ins. Agency v. Sandusky, 318 Ark. 613, 887 S.W.2d 516 (1994), and submits that this rule should be extended to include a loss payee claiming under an insurance policy. Alternatively, Colonia contends that it is irrelevant that it failed to notify Worthen of the exclusion provision, given that the only notice required by statute arises when an insured’s policy is canceled, after which the loss payee must be notified of such cancellation at least twenty days prior to its effect. See Ark. Code Ann. § 23-66-206(11)(B) (1987). Finally, Colonia argues that, even if it had a duty to disclose the disputed information and failed to do so, it should not be held liable to Worthen under the policy because Worthen has not established that it was prejudiced by the omission, given that it has not asserted that it would have acted any differently had the information been disclosed.
We find that there were no genuine issues of material fact presented before the trial court, but we also find that the trial court erred in finding that Worthen was entided to judgment as a matter of law. Therefore, we reverse.
Although Colonia did not directly inform Worthen of the exclusion agreement pertaining to Henry McCane, we know of no law requiring such notification. This is particularly true in light of the fact that the exclusion endorsement was executed on an existing insurance policy held by the McCanes well over a year before Worthen obtained a security interest in the Nissan Maxima on November 11, 1992. More importantly, it is undisputed that, when the McCanes’ insurance was renewed on June 25, 1993, Worthen received a “declarations page” in reference to the insur- anee policy. This document listed five endorsements which were incorporated into the policy. At the bottom of the “declarations page” is the following language:
THIS DECLARATIONS PAGE WITH PERSONAL AUTO POLICY PROVISIONS OR POLICY JACKET AND PERSONAL AUTO POLICY FORM, TOGETHER WITH ENDORSEMENTS, IF ANY, ISSUED TO FORM A PART THEREOF, COMPLETES THE ABOVE NUMBERED POLICY. (Emphasis added.)
One of the endorsements was labeled “AU 101” and represented an exclusion agreement. Although Worthen makes much of the fact that there were actually two exclusion agreements but only one endorsement listed for them, it could have reviewed the policy and all of the endorsements, which would have revealed the exclusion agreements as to Henry McCane and Lucille McCane. Had Worthen acted diligently, it would have easily become aware of all of the contents of the insurance policy, including its endorsements. Its failure to do so was not the fault of Colonia. The terms of the policy were clear, and Worthen was not entitled to recover as a matter of law because a plain reading of the exclusion agreement at issue barred recovery. Colonia’s motion for summary judgment should have been granted.
Reversed and remanded.
Cooper and Stroud, JJ., agree.
We do not address in this opinion a situation where an insurer and insured enter into an agreement to exclude the insured as a driver, and the most recent “declarations page,” or other statement of insurance coverage provided to the loss payee, does not include a reference to the exclusion agreement by endorsement number, or otherwise. That factual circumstance is beyond the scope of this opinion. | [
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John F. Stroud, Jr., Chief Judge.
This case arises from the granting of summary judgment on a promissory note in favor of appellee, Darragh Company. Appellants, Sherman Waterproofing, Inc., and William H. Sherman, appeal, contending that material issues of fact remain and that the trial court therefore erred in granting the motion for summary judgment. The matter was before this court once before and was dismissed because it did not arise from a final appealable order, nor did it have a Rule 54(b) certification. Sherman Waterproofing, Inc. & William H. Sherman v. Darragh Co., No. CA01-883 (February 20, 2002). On February 28, 2002, the trial court issued an order in the case that was an apparent attempt to cure the problems noted in our February 20, 2002 opinion in order to make the order final and appealable. We again find it necessary to dismiss the appeal, this time because appellant paid the underlying judgment, making the appeal moot.
Under Arkansas law, a case becomes moot when any judgment rendered would have no practical legal effect on an existing legal controversy. Wilson v. Pulaski Ass’n of Classroom Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). An exception to the mootness doctrine allows review for appeals involving the public interest and the prevention of future litigation. Id.
The February 28, 2002 order, from which this appeal arises, provides:
On April 6, 2001, this cause came on for hearing on the Motion for Summary Judgment filed by the Plaintiff, Darragh Company; Plaintiff appeared by its counsel, . . . and the Defendants, . . . appeared by their counsel, . . .; and upon a review of the file, the Motion, the Admissions of the Defendants, the Affidavit of Cindy Burns, the Response of the Defendants, and the arguments of counsel, and being well and sufficiently advised in the premises, the Court finds that the Motion for Summary Judgment should be granted as it relates to the promissory note signed by the Defendants, and denied as it relates to the cash account in the name of the Defendants.
Subsequent to said hearing, the Court has been informed that the Defendants have paid the judgment granted to the Plaintiff in full, and that the issue of the cash account has been resolved by the parties as well.
(Emphasis added.) In Hendrix v. Winter, 70 Ark. App. 229, 231, 16 S.W.3d 272, 274 (2000), we explained:
Turning to the merits of the matter, we have decided that the motion to dismiss this appeal must be granted. In DeHaven v. T & D Dev., Inc., 50 Ark. App. 193, 901 S.W.2d 30 (1995), we held that if an appellant voluntarily pays a judgment, then the appeal from that judgment would be moot, but that if payment of the judgment is involuntary, an appeal would not be precluded. In Hendrix’s response to Winter’s motion in the case at bar, he does not contend that his payment of the judgment was involuntary. He alleges that the existence of the judgment on the record, constituting a lien on his land, created a financial hardship on his timber business due to his inability to obtain a bank loan. Consequently, he chose to pay the judgment debt in exchange for a satisfaction of it. In DeHaven, we quoted from Lytle v. Citizens Bank of Batesville, 4 Ark. App. 294, 630 S.W.2d 546 (1982):
[I]n the majority of jurisdictions, the effect of the payment of a judgment upon the right of appeal by the payer is determined by whether the payment was voluntary or involuntary. In other words, if the payment was voluntary, then the case is moot, but if the payment was involuntary, then the appeal is not precluded. The question which often arises under this rule is what constitutes an involuntary payment of a judgment. For instance, in some jurisdictions the courts have held that a payment is involuntary if it is made under threat of execution or garnishment. There are other jurisdictions, however, which adhere to the rule that a payment is involuntary only if it is made after the issuance of an execution or garnishment. Another variation of this majority rule is a requirement that if, as a matter of right, the payer could have posted a supersedeas bond, he must show that he was unable to post such a bond, or his payment of the judgment is deemed voluntary. . . .
Here, the issue of mootness has not been raised by the parties; rather, it is an issue that we raise on our own motion. The order from which this appeal arises could not be more clear that the judgment has been paid by the appellant. Moreover, neither party offers us any further explanation in their briefs to this court concerning that payment. In light of that fact, and in accordance with the cases cited above, we have no choice but to conclude that appellants’ payment of the judgment was voluntary, that this appeal has thereby been rendered moot, and that it does not involve the public interest or the prevention of future litigation so as to qualify as an exception to the mootness doctrine. We do not decide moot issues. EnviroClean, Inc. v. Arkansas Pollution Control & Ecology Comm’n, 314 Ark. 98, 856 S.W.2d 116 (1993).
Dismissed.
Neal and Vaught, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellees are residents of the Pleasant Valley Subdivision in Little Rock. When the subdivision was platted, a bill of assurance prohibiting any commercial or business use of property in the subdivision was filed and recorded. Commercial use of that location was also prohibited by municipal zoning ordinances. Nevertheless, appellees operated a commercial day-care center out of their home, applying for and receiving a special-use permit from the city of Little Rock without disclosing, as required by the permit application, that the requested use violated a bill of assurance. Appellants reside directly next door and share a common property line with appellees. After learning that appellees were operating a day-care center in their home, appellants made complaints about increased traffic and safety concerns to the Little Rock Police Department, the Arkansas Department of Human Services, the Neighborhood Association Board, and to the appellees themselves. These efforts were ineffective, and appellants ultimately sued to enjoin operation of the day care, asserting that it constituted a nuisance and that it violated the bill of assurance. After a hearing, the trial court found that the appellees’ operation of the day care did not rise to the level of a nuisance, and that appellants waived the right to assert the bill of assurance by failing to assert it until three years after they were notified that appellees had filed for a permit to operate a day care in their home. From that decision, comes this appeal.
For reversal, appellants contend that the trial court erred in considering the waiver issue because waiver is an affirmative defense that was not specifically raised until after the hearing was concluded. They also argue that the trial court erred in finding that they waived the right to assert the bill of assurance. We reverse on the second point.
Appellants correcdy assert that waiver is an affirmative defense that must be specifically pled in one’s answer or other responsive pleading, see Ward v. Russell, 32 Ark. App. 86, 796 S.W.2d 588 (1990), and it is true that appellees did not raise the issue in their initial responsive pleading, or even before the hearing on the merits, but instead first mentioned their theory of waiver in a letter to the court some time after that hearing had been concluded. However, at a posttrial hearing on the issue of waiver, appellants never objected to the untimely manner in which the waiver issue was raised, and therefore acquiesced in it. While we will not imply consent merely because evidence relevant to a properly pled issue incidentally tends to establish an unpled one, a party who knowingly acquiesces in the introduction of evidence relating to issues that are outside the pleadings is in no position to oppose a motion to conform. Id. Consequently, we cannot say that the trial court erred in considering the issue of waiver.
Nevertheless, giving due deference to the trial court’s superior opportunity to assess the credibility of the witnesses, see McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988), we think that the trial court clearly erred in finding that appellants waived their right to rely on the bill of assurance by failing to immediately file suit upon learning that appellees were operating a day-care facility on their property. The bill of assurance expressly provided that failure to immediately proceed upon learning of a violation thereof would not result in a waiver of rights. Furthermore, although appellants did wait approximately three years before filing suit to enforce the bill of assurance, they were not idle during that time. The record is replete with evidence that appellants complained numerous times to the police department and to DHS in connection with appellees’ operation of the day care. Although it is true that appellants did not base their preliminary complaints on their contractual rights under the bill of assurance, the witnesses generally agreed that appellants continuously and actively opposed the operation on several other grounds. This issue frequently arises in the context of election-of-remedies cases, where the general rule is that, where a party has cumulative and consistent remedies, he may pursue all or one, so long as he receives only one satisfaction. Davis v. Lawhon, 186 Ark. 51, 52 S.W.2d 887 (1932). This was explained more fully in Kapp v. Bob Sullivan Chevrolet Co., 232 Ark. 266, 335 S.W.2d 819 (1960), where the supreme court said that:
Where the law affords several distinct but not inconsistent remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies. To determine whether coexistent remedies are inconsistent, the relation of the parties with reference to the right sought to be enforced as asserted by the pleadings should be considered. If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.
Id. at 269, 335 S.W.2d at 821. In the present case, the thrust of all of appellants’ various legal efforts against appellees was directed toward preventing appellees from employing their property for uses that were inconsistent with and detrimental to the residential character of the neighborhood. This is perfectly consonant with the terms and intention of the bill of assurance.
Nor were appellants barred by the doctrines of estoppel and laches. Both doctrines are founded on the principle of detrimental reliance, and, perhaps because the issue was not raised until after the hearing was concluded, there is no evidence that appellees incurred any expenses or otherwise relied to their detriment on appellants’ three-year delay in asserting their rights under the bill of particulars. See generally Cavaliere v. Skelton, 73 Ark. App. 188, 40 S.W.3d 844 (2001); compare Baldischwiler v. Atkins, 315 Ark. 32, 864 S.W.2d 853 (1993).
In light of appellants’ continued opposition to the prohibited use through other consistent avenues, and the express provision in the bill of assurance that failure to immediately proceed upon learning of a violation thereof will not result in a waiver of rights, we hold that the trial court erred in finding that the appellants waived their rights under the bill of assurance.
Reversed and remanded.
Robbins and Crabtree, JJ., agree. | [
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John Mauzy Pittman, Judge.
In this case, an insurer, appellee Arkansas Blue Cross and Blue Shield (“BCBS”), rescinded a health policy issued to appellant’s late father, Aubrey McQuay. After appellant sued BCBS for breach of contract, BCBS filed a motion for summary judgment, which was granted by the trial court. Appellant contends on appeal that the trial court erred in granting summary judgment because genuine issues of material fact remain to be decided. We agree, and we reverse and remand.
On February 18, 2000, Aubrey McQuay visited the Jones-boro office of BCBS agent HealthCare Insurance (“HCI”) and filled out an application for health coverage. There is some controversy as to whether Aubrey filled out the application by his own hand or gave verbal responses that were recorded by the agent, but that is of no importance because it is undisputed that Aubrey answered “No” to the following question: Have you or any other person to be insured ever had any diagnosis of or been advised to have treatment for disease or disorder of the lungs or respiratory system? Despite Aubrey’s negative answer to this question, he had visited his physician, Dr. Danny Holt, in February 1999, approximately one year before the application was made, and two X-ray reports were generated as a result of that visit. One reflected a physician’s impression of “pulmonary fibrosis and emphysema,” and the other contained an assessment of “evidence of COPD [Chronic Obstructive Pulmonary Disease].” Nevertheless, BCBS, being unaware of these diagnoses and relying on Aubrey’s answer, issued a health policy to him.
Shortly after the policy was issued, Aubrey visited Dr. Holt, complaining of weight loss and difficulty swallowing. After a series of tests and other doctor visits, he was diagnosed in July 2000 with lung cancer. He received treatment from, among others, Dr. Michael Raborn, who characterized Aubrey’s condition as follows: “When I treated Aubrey McQuay, he had Stage MB lung carcinoma and a tracheosophageal fistula. In layman’s terms, Mr. McQuay had lung cancer that ate a hole in his esophagus.”
Aubrey died on February 4, 2001. However, before his death, BCBS sent him a letter rescinding his policy on the ground that his answer to the above question was false. Thereafter, appellant filed the lawsuit that is the subject of this appeal. Following discovery, BCBS filed a motion for summary judgment, arguing that Aubrey’s negative answer regarding his diagnosis of a respiratory disorder was false and that, had Aubrey told the truth about the diagnosis, BCBS would not have issued the policy. Attached to the motion was the affidavit of Gerald LaFerney, BCBS’s Manager of Individual Underwriting. LaFerney’s affidavit confirmed that, had BCBS known of Aubrey’s COPD, it would not have issued the policy. Laferney referenced specific under writing guidelines, which provided that a person diagnosed with COPD could only be insured if he was a non-smoker or had quit smoking for more than a year. The evidence is undisputed that Aubrey was a smoker at the time of his application, a fact that the application correctly reflects.
In responding to the motion for summary judgment, appellant seized upon the possibility that his father was unaware he had been diagnosed with COPD. Appellant testified in his deposition that his father did not know he had been so diagnosed, nor did he know what COPD was. Appellant argued that Aubrey’s ignorance of a COPD diagnosis was significant because, upon completing the .application, Aubrey signed it just above a line containing the following language: “In signing below, I . . . represent that the statements and answers given in this application ... are true, complete, and correctly recorded to the best of my knowledge and belief. ...” (Emphasis added.) In light of this language, appellant argued, Aubrey’s answer on the application was not a misrepresentation because he answered “to the best of his knowledge and belief.”
Following a hearing, the trial court found that Aubrey was not necessarily aware of the findings of COPD and other respiratory ailments contained in the X-ray reports, nor did he have knowledge of any sort of abnormal lung condition at the time he completed the application. Therefore, the court concluded, a fact question remained as to whether Aubrey’s alleged misstatement in the application was fraudulent. The court also found that a fact question remained as to whether Aubrey’s alleged misstatement was material to BCBS’s acceptance of the risk. However, the court found there was no dispute that, had BCBS known of Aubrey’s pulmonary condition, it would not have issued the policy, and the court granted summary judgment on that basis.
On appellate review of summary judgment, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material question of fact unanswered. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000). The moving party bears the burden of sus taining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id.
Arkansas law provides three statutory grounds for which a health insurer may rescind a policy for misstatements in the application:
(a) All statements in any application for a life or accident and health insurance policy or annuity contract, or in negotiations therefor, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(1) Fraudulent;
(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
(3) The insurer in good faith would not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the same premium or rate or would not have provided coverage with respect to the hazard resulting in the loss if the facts had been made known to the insurer as required by the application for the policy or contract or otherwise.
Ark. Code Ann. § 23-79-107(a) (Supp. 2001). The trial court found that fact questions remained as to grounds one and two, but that no factual issue remained as to ground three. However, the trial court neglected to make the threshold determination that Aubrey’s answer constituted a “misrepresentation, omission, concealment of fact, or incorrect statement” as required by the preamble of subsection (a). If Aubrey’s answer cannot be characterized by one of these descriptions, then subsection (a)(3), on which summary judgment was granted, is inapplicable. See Phelps v. U.S. Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999).
Our inquiry on appeal, therefore, is whether, as a matter of law, Aubrey’s answer was a misrepresentation, omission, concealment of fact, or incorrect statement. We first address appellant’s contention that Aubrey’s statement was not a “misrep- reservation,” an apparent reference to the possibility that Aubrey did not knowingly make a false statement. However, a misrepresentation is only one type of misstatement that may prevent recovery under a policy. Recovery may also be precluded when an applicant makes an “incorrect statement.” An incorrect statement may justify rescission regardless of whether it was made with fraudulent intent. See also Life & Cas. Ins. Co. of Tenn. v. Smith, 245 Ark. 934, 436 S.W.2d 97 (1969); Langlois v. Wisconsin Nat’l Life Ins. Co., 19 Wis. 2d 151, 119 N.W.2d 400 (1963). Thus, our analysis does not end with the fact that Aubrey’s statement may not have been fraudulent. We must determine whether Aubrey’s answer was “incorrect.” The key to this determination is the import of Aubrey being asked to answer the application question “to the best of his knowledge and belief.”
The application in this case is formatted in such a way that, following a list of health-related questions, a rather lengthy dissertation ensues, informing the insured, among other things, that he represents his answers to be true, complete, and correcdy recorded to the best of his knowledge and belief. The applicant is then asked to sign the application. We believe this has the effect of prefacing each question with the phrase, “to the best of your knowledge and belief.” For example, the question asked of Aubrey McQuay in this case was, effectively, “to the best of your knowledge and belief, have you or any other person to be insured ever had any diagnosis of or been advised to have treatment for disease or disorder of the lungs or respiratory system?”
Viewing the application question in this light, the issue becomes whether Aubrey’s answer of “no” to that question was incorrect. BCBS argues that, regardless of what Aubrey knew or believed, he had in fact been diagnosed with COPD; thus, he made an incorrect statement that provided a ground for rescission. BCBS relies on American Family Life Insurance Company v. Reeves, 248 Ark. 1303, 455 S.W.2d 932 (1970), to support its contention. Reeves involved a cancer policy issued on the basis of the following answers contained in the application:
1. To the best of your knowledge, does any member of the family group to be insured now have or ever had cancer?
2. To the best of your knowledge, has any member of the family group to be insured ever had: (a) lumps, growths, or swellings; (b) sores that have not healed; (c) coughed or vomited blood.
The applicant, George Reeves, answered “no” to thtese questions. When his wife was diagnosed with cancer ten months later, the insurer rescinded the policy on the ground that she had suffered removal of an eye due to a malignant growth or tumor eight years prior to the effective date of the policy. Reeves asserted that neither he nor his wife had been informed that the eye was removed due to a cancerous condition. The insurer nevertheless sought rescission on the basis that it would not have issued the policy, had it known the truth. The supreme court made the following statement:
Logically, in the circumstances of the case at bar, this affirmative defense cannot be construed to be affected by the “[t]o the best of your knowledge” qualifying phrase in the questions of the application. The “true facts” referred to in subsection (c) [now (a)(3)] relate to whether or not there was a pre-existing malignant growth, as contended by appellant, and not to whether the appellee had actual knowledge of this condition.
Id. at 1308, 455 S.W.2d at 936. Although the court appears to say that the same subsection (a)(3) ground that BCBS asserted in this case may be relied upon by an insurer as grounds for rescission regardless of how the applicant’s answer is characterized, we consider the court’s statement to be dicta because it did not base its decision on this statement, but instead decided the case based on Reeves’s actual, firsthand knowledge that his wife had a “growth” as contemplated by question number two. Furthermore, this dicta is contrary to the court’s more recent determination that, before the subsection (a) grounds may be successfully asserted, it must first be shown that the applicant has made a misrepresentation, omission, concealment of facts, or incorrect statement. See Phelps v. U.S. Credit Life Ins. Co., supra.
We believe that a sound approach is evidenced by the language employed by the supreme court in Findley v. Time Insurance Co., 269 Ark. 257, 599 S.W.2d 736 (1980) and American Republic Life Insurance Co. v. Edenfield, 228 Ark. 93, 306 S.W.2d 321 (1957). In Findley, a health insurance applicant was asked if, to the best of her knowledge and belief, she had ever had any menstrual irregularities. She answered “no,” but in fact she had suffered such problems extensively. The supreme court agreed with the trial court that the insurer was entitled to rescind the contract, but the important point for our purposes is that the court characterized the issue as follows: “The issue presented is whether the female disorder or menstrual irregularity manifested itself to her knowledge and belief before or after the application. It is not whether she was in good health when she made the application.” Findley, 269 Ark. at 260, 599 S.W.2d at 739 (emphasis added). In Edenfield, a life insurance applicant represented that he did not have arteriosclerosis and had not undergone any treatment for it. The application contained the recital that “the above statements and answers are full, true and complete to the best of my knowledge and belief.” The supreme court stated: “From all the competent evidence we think the preponderance is to the effect that the deceased was justified in believing that he had no heart disease
We think that these two cases stand for the proposition that, when an applicant is asked to respond to a question to the best of his knowledge and belief, his actual knowledge and belief concerning his condition are relevant. We note that other authorities so hold. See Hauser v. Life Gen. Sec. Ins. Co., 56 F.3d 1330 (11th Cir. 1995); William Penn Life Ins. Co. v. Sands, 912 F.2d 1359 (11th Cir. 1990); Carter v. United of Omaha Life Ins. Co., 685 So.2d 2 (Fla. Ct. App. 1997); Sterling Ins. Co. v. Dansey, 195 Va. 933, 81 S.E.2d 446 (1954).
In light of the above, we hold that a fact question remains as to whether Aubrey McQuay made an incorrect statement in his answer on the application. We observe that, in addi tion to appellant’s testimony that Aubrey was unaware of his condition, Dr. Holt’s progress note dated 2/18/99 (the same date the X-rays were taken) mentions only “some degree of COPD,” and contains the notations “Bronchitis and sinus congestion” and prescribes a pill for sinus congestion and a Nicotrol Inhaler to help Aubrey quit smoking. Further, the trial court specifically found that Aubrey was not necessarily aware of his diagnosis. Thus, a jury might conclude that, to the best of Aubrey’s knowledge and belief, he had not been diagnosed with COPD.
We also reject BCBS’s alternative reason for affirmance that the incorrect statement in the application was material to its acceptance of the risk. See Ark. Code Ann. § 23-79-107(a) (2). The trial court explicitly found that a fact question remained on this point. Further, the subsection (a)(2) defense requires the insurer to show a causal relationship between the misrepresentation and the hazard resulting in the loss. Ark. Code Ann. § 23-79-107(c). A fact question exists on that issue by virtue of Dr. Michael Raborn’s statement in his affidavit that COPD is not caused by lung cancer.
Finally, as to the separate appellee HCI, it was sued by appellant for negligence in recording an answer on the application to a question not at issue in this appeal. The trial court granted summary judgment to HCI on the basis that BCBS properly rescinded the policy. Therefore, the two rulings being intertwined, we likewise reverse the summary judgment granted to HCI.
Reversed and remanded.
Neal, J., agrees.
Vaught, J., concurs.
The letter also referred to two other questions, but Aubrey’s answers to those questions are not pertinent to our discussion of the issue at hand.
BCBS argues that the use of the phrase serves only to inform the applicant of the serious nature of the information provided and to emphasize the criminal penalties that could be imposed for knowingly providing false information. At the least the application is ambiguous in this regard, in which case it would be construed against BCBS. See generally Phelps v. U.S. Credit Life Ins. Co., supra. | [
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Sam Bird, Judge.
The Estate of Daisy Byrd appeals the dismissal of its wrongful-death claim against Tommy Tiner. Appellant raises two points of appeal: (1) that Tiner waived his defense that the suit was not brought in the name of the real-party-in-interest, and (2) that the trial court erred in prohibiting the Estate from amending its complaint by substituting the name of the personal representative in the place of the Estate of Daisy Byrd. We find the second point dispositive and hold that the trial court did not err in prohibiting the amendment of the complaint. We affirm the dismissal of the case.
Daisy Byrd died after she was in an automobile accident on January 5, 1998. Her will was admitted to probate on March 20, 1998, and Nina Coffee was appointed as personal representative of her estate. On June 2, 1998, a wrongful-death action was filed in the name of “Estate of Daisy Byrd, Deceased,” against Tommy Tiner, alleging that Byrd’s death resulted from her car being struck when Tiner’s negligence caused his car to cross the center line. The complaint contained no language to indicate that it was being brought by or in the name of the personal representative of Byrd’s estate; it bore only the signature of counsel on behalf of “Estate of Daisy Byrd, Deceased, Plaintiff.” On June 17, 1998, Tiner filed his answer, asserting among other things the defense that the plaintiff had failed to state facts upon which relief could be granted and had failed to join necessary parties in the action. On September 12, 2000, an order was entered setting the case for jury trial on February 12, 2001.
On February 9, 2001, Tiner filed a motion to dismiss, alleging that the Estate of Daisy Byrd was not the proper party to bring the wrongful-death action under Ark. Code Ann. § 16-62-102 (Supp. 2001); that the purported plaintiff was neither a personal representative nor an heir-at-law, and was a nonentity; and that suit by a new or substituted party was barred by limitations. At a hearing on the motion to dismiss, Tiner argued that the Estate was not the proper party to bring the wrongful-death suit and that substitution of parties was barred by limitations that had run on January 4, 2001. Arguing that Tiner had waived these contentions in his answer to the suit and that his motion to dismiss was not timely filed because he had been on notice of the trial since September 12, 2000, the Estate moved to amend, substitute, or add the name Nina Coffee, Executrix of the Estate. The court orally granted Tiner’s motion to dismiss, agreeing that the suit was barred by limitations because the personal representative had not filed suit within the three-year period for filing wrongful-death actions. The Estate then filed both a motion to amend its complaint and a motion for reconsideration. The trial court denied these motions and entered an order of dismissal.
A wrongful-death action must be brought by and in the name of the personal representative of the deceased person; if there is no personal representative, the action shall be brought by the heirs at law of the deceased person. Ark. Code Ann. § 16-62-102(b) (Supp. 2001). Every action authorized by the statute must be commenced within three years after the death of the person alleged to have been wrongfully killed. Ark. Code Ann. § 16-62-102(c) (Supp. 2001). Because the wrongful-death action is a creation of statute, it exists only in the manner and form prescribed by the statute; it is in derogation of the common law and must be strictly construed, and nothing may be taken as intended that is not clearly expressed. St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002).
The Estate argues that the amended complaint should have been allowed under Ark. R. Civ. P. 15 and 17. Rule 15(a), with the exception of certain defenses, allows a party to amend its pleadings unless, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment. Under Rule 15(c), amendment of a pleading in certain instances relates back to the date of the original pleading. Rule 17 prohibits dismissal of an action on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for joinder or substitution of the real party in interest. These rules, however, are not applicable in the case we now decide.
Where an action is brought in the name of a nonexistent plaintiff, any amendment of the complaint by substituting the proper party to the action as plaintiff institutes a new action as regards the statute of limitations. Ark-Homa Foods v. Claude C. Ward, Jr. 251 Ark. 473 S.W.2d 910 (1971); see Davenport v Lee, 348 Ark. 148, 72 S.W.3d, 85 (2002). Before Rule 15 can apply, there must be valid pleadings to amend. Rule 17(a) requires all actions to be prosecuted in the name of the real party in interest, and further provides that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed to correct the defect by joinder or substitution of the real party in interest. However, Rule 17 is simply not implicated in the case at bar. Although the heirs at law of the estate of Daisy Byrd could have been the real parties in interest in a wrongful death action against Tommy Tiner, Ark. Code Ann. §16-62-102 mandates that wrongful-death actions be brought by and in the name of the appointed personal representative of the decedent’s estate. See St. Paul Ins. Co. v. Circuit Court of Craighead County, supra. Only if there is no personal representative of the estate, shall the wrongful death action be brought by the decedent’s heirs at law. In the case at bar it is undisputed that Nina Coffee had been appointed as personal representative of the estate of Daisy Byrd at the time this wrongful death action was commenced. Therefore, under Ark. Code Ann. § 16-62-102, a wrongful-death action arising out of the death of Daisy Byrd was required to have been brought by and in the name of Nina Coffee as personal representative of the estate of Daisy Byrd.
Unquestionably, the “Estate of Daisy Byrd, Deceased” was not the personal representative of Daisy Byrd’s estate and was not authorized to pursue the wrongful-death action. See Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002). In February 2001, when the Estate moved to amend its complaint by substituting or adding the name of Nina Coffee, personal representative, as plaintiff, there was no complaint to amend because the original complaint was a nullity. See McKibben v. Mullis, 79 Ark. App. 382, 90 S.W.2d 442 (2002). Furthermore, had the amendment been allowed, it would have constituted the commencement of a new action for which the period of limitations had expired. For these reasons, we hold that the Estate was statutorily barred from bringing this wrongful-death suit and that the trial court did not err in denying the motion to amend the complaint by naming the personal representative of the Estate as plaintiff.
We need not reach the Estate’s point of appeal that Tiner waived his real-party-in-interest defense. As already discussed, Rule 17 has no application in this case. The right to recover under the wrongful-death statute is dependent upon the complaining party’s bringing itself within the terms of the statute. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, supra. Even if we were to reach that point, we would be compelled to affirm it because appellant obtained no express ruling by the trial court as to its waiver argument. A moving party bears the burden of obtaining a ruling on any objection, and in the absence of such a ruling the issue is not preserved for appellate review. White v. Davis, 352 Ark. 183, 99 S.W.3d 409.
Affirmed.
Robbins and Griffen, JJ. agree. | [
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Andre Layton Roaf, Judge.
Appellants, Herb Adams and Agri Air Services, appeal a Garland County Circuit Court award of summary judgment to the appellee, Wacaster Oil Company, Inc., on their claims for breach of contract, breach of express warranty, breach of implied warranty of fitness for a particular purpose, and implied warranty of merchantability. Appellants assert that the trial court erred in granting appellee’s motion for summary judgment. In our original unpublished opinion in this case, issued October 23, 2002, we dismissed the appeal based upon the lack of a final order. The appellee timely filed a petition for rehearing and contended that the order appealed from was final because it dismissed the appellants’ complaint with prejudice. We have granted the petition and reinstated the appeal. In this substituted opinion, we affirm the trial court’s decision.
Appellants engage in the business of providing crop-dusting services. Appellee is a business that sells various types of fuel. On May 1, 1996, appellants purchased 1,500 gallons of aviation fuel from appellee. On June 17, 1996, a plane owned by appellants crashed. A Federal Aviation Administration investigation revealed that the plane did not contain the proper fuel.
Appellants filed suit on March 22, 2000, asserting breach of contract, breach of express warranty, breach of the implied warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability. Appellee answered, asserting lack of notice as one of its defenses. Appellee then filed a motion for summary judgment. In its motion, appellee asserted that appellants had accepted the fuel and failed to give reasonable notice of the breach pursuant to Ark. Code Ann. § 4-2-607 (3) (a) (Repl. 2001).
Following a hearing, the court granted appellee’s motion. In its order, the court characterized the action as a breach-of-warranty action. The court found that Ark. Code Ann. § 4-2-607(a)(3) requires a buyer to give reasonable notice to the seller upon the discovery of any breach. The court also found that the giving of notice was a condition precedent to recovery and that appellants had failed to give appellee reasonable notice. While the order did not specifically address the appellants’ breach-of-contract claim, it recited that “the plaintiffs complaint is dismissed . . . with prejudice.” We have concluded that this is a final, appealable order, and we therefore address the merits of appellants’ appeal.
The appellants argue that the trial court erred in granting the appellee’s motion for summary judgment with respect to their claims for breach of contract and breach of warranty. Summary judgment should only be granted when it is clear that there are no disputed issues of material fact, and it is appropriate to sustain a grant of summary judgment if the evidence brought before the trial court by the moving party shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997). With regard to the contract claim, they assert that there was a contract because it is undisputed that appellants purchased 1,500 gallons of aviation fuel from appellee as evidenced by the written purchase order, that the fuel was defective and caused the crash of appellants’ crop duster, and that the trial court ignored the breach-of-contract claim in the final order. Specifically, appellants contend that a breach-of-contract claim is not displaced by a breach-of-warranty claim pursuant to Ark. Code Ann. § 4-1-103 (Repl. 2001), which provides:
Unless displaced by the particular provisions of this subtitle, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.
The trial court found that appellants were required to give notice of breach pursuant to Ark. Code Ann. § 4-2-607, which provides in pertinent part:
Where a tender has been accepted the buyer must within a reasonable time after he observed or should have observed any breach notify the seller of breach or be barred from any recovery.
Ark. Code. Ann. § 4-2-607(3)(a).
Although not relied upon by the trial court or appellee, the Uniform Commercial Code further provides, in Ark. Code Ann. § 4-2-714 (Repl. 2001) “Buyer’s damages for breach in regard to accepted goods”:
(1) Where the buyer has accepted goods and given notification (§ 4-2-607(3)) he may recover as damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(3) In a proper case any incidental and consequential damages under the next section may also be recovered.
(Emphasis added.) Additionally, Ark. Code Ann. § 4-2-715 (Repl. 2001) is referenced in the preceding section, and provides in pertinent part:
(2) Consequential damages resulting from the seller’s breach include:
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had rea son to know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty.
Finally, we note that the supreme court has stated in Microsize, Inc. v. Arkansas Microfilm, Inc., 29 Ark. App. 49, 780 S.W.2d 574 (1989), that an action involving the sale of defective machinery was controlled by the Uniform Commercial Code rather than common law and that the giving of jury instructions on a breach-of^contract theory was error. We conclude that the trial court did not err in ruling that Ark. Code Ann. § 4-2-607 was applicable to the appellants’ claim.
With regard to the claim for breach of warranty, the appellants contend that no particular form of notice to the seller is required and that the notice need not be in writing. They further assert that because they did not discover that the aviation fuel was defective until their airplane crashed, Ark. Code Ann. § 4-2-607 is inapplicable to the facts of this case. Finally, appellants contend that whether sufficient notice had been given was a question of fact and should not have been resolved through summary judgment.
Appellants’ argument must fail for several reasons. In Williams v. Mozark, 318 Ark. 792, 888 S.W.2d 303 (1994), the appellant had bought a fire-extinguishing system from appellee. The system failed, causing a fire and extensive damages. The trial court directed a verdict on appellant’s claim for breach of warranty on the basis of lack of notice. In affirming, the supreme court stated:
Williams next argues that the trial judge erred in directing a verdict in favor of Mozark on her count for breach of implied warranty of fitness for a particular purpose. Williams first indicated a refiance on this theory of recovery in her second amended complaint, filed July 16, 1993, more than five years after the fire. At trial, after Williams’s case-in-chief, appellee moved for a directed verdict on the basis of lack of notice of this theory of recovery. The trial judge granted the motion.
The Uniform Commercial Code provides that a “buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.” Ark. Code Ann. § 4-2-607(3)(a) (Repl. 1991). We have held that the giving of reasonable notice is a condition precedent to recovery under the provisions of the commercial code and that the giving of notice must be alleged in the complaint in order to state a cause of action. L.A. Green Seed Co. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969). In L.A. Green Seed Co., we affirmed a directed verdict in favor of the defendant because the giving of notice was not alleged in the complaint. We have additionally stated that the notice must be more than a complaint. Cotner v. International Harvester Co., 260 Ark. 885, 545 S.W.2d 627 (1977). Thus, under the statute, Williams failed to give proper notice by the filing of her second amended complaint.
Williams contends that the purpose behind the notice requirement is not present in this case because the product was destroyed, and, therefore, we should not follow the literal wording of the statute. The purpose of the statutory notice requirement of a breach is twofold. First, it is to give the seller an opportunity to minimize damages in some way, such as by correcting the defect. Second, it is to give immunity to a seller against stale claims. L.A. Green Seed Co., 246 Ark. at 468, 438 S.W.2d at 720. While it is true that the system was destroyed and the seller can no longer minimize damages, the other statutory purpose is present. Thus, we decline to ignore the statutory requirement.
318 Ark. at 796-97, 888 S.W.2d at 305-06.
Clearly, Williams v. Mozark mandates that reasonable notice of the claim of breach of warranty was required even though appellants’ airplane had crashed before the defect in the fuel was discovered, that the giving of notice must be more than a complaint, and that the giving of notice must be alleged in the complaint itself. Here, appellants did not allege the giving of notice in their complaint or in their response to the motion for summary judgment, and do not do so on appeal.
Under the circumstances of this case, the trial court did not err in granting summary judgment and dismissing appellants’ complaint in its entirety with prejudice based upon the failure to give notice of “any breach” as required by Ark. Code Ann. § 4-2-607. We therefore affirm.
Affirmed.
Pittman, Robbins, and Bird, JJ., agree.
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Dissenting Opinion on Denial of Motion to File Belated Appeal
Wendell L. Griffen, Judge,
dissenting. Arkansas Code Annotated section ll-10-529(a) (1987) provides that any party entitled to a decision of the Board of Review shall have twenty days from the date the decision is mailed to her last known address in which to request a judicial review thereof by filing in the Court of Appeals a petition for review of the decision. The Board of Review decision from which appellant seeks to appeal was mailed'on January 4, 2002. According to the statute, appellant’s petition for review should have been filed in our court no later than January 24, 2002. The petition for review did not reach our court until January 25, 2002, twenty-one days after the Board of Review decision was mailed. It is well settled that the court of appeals has no authority to extend the deadline for filing a petition for review. Wooten v. Daniels, 271 Ark. 131, 607 S.W.2d 96 (1980).
Nevertheless, I cannot deny this motion for belated appeal in good conscience after considering the facts surrounding the untimely appeal. This appellant lives in North Little Rock, Arkansas. Our court is. located in Little Rock, merely across the Arkansas River. According to appellant’s motion, she mailed the petition for review at the postal distribution center on McCain Boulevard in North Little Rock at approximately 8:30 a.m. on January 22, 2002. The postmark supports appellant’s assertion. It is marked 22 January 2002. However, appellant’s mailing was not processed at the distribution center until January 24, 2002, two days later. This petition for review arrived at our court on January 25, 2002, because the United States Postal Service did not do its job, not because appellant was dilatory.
I do not know why the Postal Service cannot deliver a letter mailed from its North Little Rock distribution center to a Little Rock address in less than three days. I do not know why the Postal Service allowed appellant’s mailing to languish for two days at the Distribution Center before delivering it to our court. I do not know who in the Postal Service is responsible for the two-day stay that appellant’s mailing experienced at the Distribution Center. Neither does appellant. What is very plain to me, however, is that to slavishly follow our statute in the face of these facts produces a harsh result for this appellant when it is clear that her conduct was both timely and reasonable.
In Springdale Farms v. Daniels, 1 Ark. App. 89, 613 S.W.2d 117 (1981), our court held that an employer’s appeal was timely despite the fact that it was filed after the permitted time for filing. In that case, the employer never received written notice of the determination from which its appeal was taken. In reversing the decision by the Board of Review that denied the appeal as untimely, we reasoned that the fact that the notice was not received was a circumstance beyond the appellant employer’s control. Granted, that case involved a different statute with a fifteen-day period prescribed for filing (Arkansas Statutes Annotated section 81-1107(d) (2) (Repl. 1976)). The statute involved in that case explicitly provided that an appeal could be considered as having been timely filed where the failure to file resulted from circumstances beyond the appellant’s control. For some unknown reason, the statute that applies to the present case omits such language. The instant case involves an appeal by an employee. Yet, as in Springdale Farms, the fact that the petition for review was not received at our court within the prescribed filing period was a circumstance clearly beyond the employee’s control.
Finally, I hope that the members of the Arkansas General Assembly will change Ark. Code Ann. § ll-10-529(a) so that its filing-time schedule is consistent with that prescribed by Ark. Code Ann. § ll-10-524(a). That statute has the same twenty-day period for filing appeals from determinations by the Employment Security Division to the appeal tribunal and from decisions by the appeal tribunal to the Board of Review. However, it also contains the following wording:
If mailed, an appeal shall be considered to have been filed as of the date of the postmark on the envelope. However, if it is determined by an appeals tribunal or the Board of Review that the appeal is not perfected within the twenty-day period as a result of circumstances beyond the appellant’s control, the appeal may be considered as having been filed timely.
(Emphasis added.) Appealing parties, the General Assembly, and our court cannot control whether the Postal Service will do its job. However, appellants should not lose their rights to judicial review because of postal inefficiency.
I respectfully dissent. | [
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Larry D. Vaught, Judge.
Appellant brings this appeal from an order of summary judgment in favor of appellee. For the reasons that follow, we dismiss the appeal.
A notice of appeal should be filed within thirty days after the entry of the judgment. Ark. R. App. P. — Civ. 4(a). If it is shown that a party failed to receive notice of the judgment, the trial court may grant a fourteen-day extension. However, the extension must be requested within 180 days of the entry of the judgment. Ark. R. App. P— Civ. 4(b)(3).
In the present case, the trial court held a hearing on á motion for summary judgment in 1996. Years passed, and an order granting summary judgment was entered on May 25, 2000. The parties, apparently, were unaware that the order had been entered. Consequently, the time .allowed for filing a notice of appeal or extension expired.
When the appellants discovered that an order had been entered and the time for filing a notice of appeal had expired, they moved to vacate the judgment. Consequently, the trial court entered a new order granting summary judgment, identical to the previous one in all respects except for date, on July 20, 2001. Appellants then filed a notice of appeal from that order.
The determining question on appeal is whether the trial court had the authority to issue the duplicate order on July 20, 2001. It did not. An identical question was presented in Oak Hill Manor v. Arkansas Health Servs. Agency, 72 Ark. App. 458, 37 S.W.3d 681 (2001). There neither party was aware that an order had been entered. Despite this, we held that the trial court lacked jurisdiction to enter a duplicate order to permit the filing of a notice of appeal after the 180-day deadline had expired. In so doing we relied on and quoted authority concerning the analogous federal rules for the proposition that the 180-day deadline in Rule 4 cannot be extended by use of Rule 60 to cure problems of lack of notice.
Oak Hill Manor stands for the proposition that problems relating to lack of notice that an order has been filed are controlled entirely by Rule 4(b)(3) and that Rule 60 is simply inapplicable. Consequently, we hold that the trial court lacked authority to set aside his original order and enter the duplicate order, and we must therefore dismiss this appeal.
Appeal dismissed; cross-appeal dismissed as moot.
Stroud, C.J., Robbins, and Crabtree, JJ., agree.
Pittman and Bird, JJ., concur.
Hart, Griffen, and Roaf, JJ., dissent.
The dissent argues that Oak Hill Manor, supra, was wrongly decided, and that it should not apply in this case because of a misprision by the clerk in failing to timely notify the parties when the order was entered. We have diligently examined the record and, although it is clear that there were irregularities in the entry of the judgment and the notification of the parties, there is nothing to show that these irregularities were the fault of the clerk, rather than of the trial judge and the postal service. As the dissent candidly notes, the judgment of May 25, 2000, was “inexplicably” entered. If there were in fact errors committed by the clerk in this case, they are not apparent of record. | [
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Olly Neal, Judge.
Michael Sundeen appeals the Pulaski County Circuit Court’s grant of summary judgment in favor of the Kroger and Jerry Hart, a Kroger employee (Kroger). Sundeen sued Kroger for malicious prosecution and abuse of process following the State’s nolle prosse of criminal charges alleging that Sundeen had obstructed governmental operations and attempted to influence a governmental official, arising from an incident at a Kroger Store. On appeal, Sundeen alleges that the court erred in granting summary judgment on both causes of action and that genuine issues of material fact exist with respect to each cause. We conclude that there was no error and therefore affirm.
The incident leading to the charges against Sundeen occurred on December 21, 1999. While shopping in a Kroger store, Sundeen asked Angela Bryant, a Kroger employee, where he could find the marshmallows. It is disputed as to whether Sun-deen was rude to Baker or whether Baker was rude to Sundeen. Sundeen was not pleased with Baker’s reply, so he went to lodge a complaint at the customer-service desk. Meanwhile, Baker informed Jerry Hart that she was having a problem with Sundeen. Hart then approached Sundeen while he was standing in line at the customer-service desk, and Sundeen initially ignored him. Hart identified himself as a police officer. Hart asked Sundeen if he could talk to him. When Sundeen became argumentative, Hart grabbed Sundeen by the arm and escorted him to the security office. In the office, Hart informed Sundeen that he had received a complaint about him from Baker. Hart subsequently placed Sundeen under arrest for obstructing governmental operations and attempting to influence a governmental official.
A trial before a special judge was held on March 29, 2000, in municipal court. At the trial, Jerry Hart testified that at the time of the incident he was working as a plainclothes security officer but that he also worked as a patrolman for the Little Rock Police Department. He also testified that despite being paid by Kroger, he was obliged to follow the rules and regulations of the police department. He stated that when he approached Sundeen, he was investigating Sundeen on allegations of criminal harassment. He testified that in the security office he told Sundeen “that because of his actions out on the floor that he was also under arrest for obstructing governmental operations and I was charging him with that because he was hindering my investigation on a problem that was presented to me that was [of] a criminal nature.” Hart stated that upon being told he was under arrest for obstruction, Sundeen threatened to call his lawyer and Hart’s supervisor and have Hart’s “job taken.” Hart testified that “me, fearing economic reappraisal [sic], then arrested Mr. Sun-deen for attempting to influence governmental operations.” The municipal court found Sundeen guilty on both charges. However, upon appeal to circuit court, the State nolle pressed the charges.
Subsequently, on January 19, 2001, Sundeen filed suit, alleging malicious prosecution and abuse of process. Kroger filed a motion for summary judgment on October 19, 2001. In the motion, Kroger asserted that Sundeen (1) could not prove all the elements necessary to prevail in a claim of malicious prosecution, and (2) could not prevail on his claim of abuse of process because he could not prove judicial process was used to extort or coerce. In addition, both parties submitted a transcript of Sundeen’s trial in municipal court. On February 25, 2002, the court entered an order granting Kroger’s motion for summary judgment. In the order, the court stated that it found probable cause for Sundeen’s arrest and prosecution for obstructing governmental operations and attempting to influence a public official; therefore, his malicious-prosecution claim failed. The court also found that Sun-deen’s abuse-of-process claim failed because he had not submitted any evidence that Kroger was guilty of malice or committed any improper act after his arrest and the initiation of criminal proceedings. From that order comes this appeal.
Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. Brown v. Fountain Hill School Dist., 67 Ark. App. 358, 1 S.W.3d 27 (1999). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Palmer v. Council on Economic Educ., 344 Ark. 461, 40 S.W.3d 784 (2001). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Brown v. Fountain Hill School Dist., supra. On review, the appellate court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
To succeed on his claim of malicious prosecution, appellant had to establish the following: (1) an earlier proceeding instituted or continued by the appellee against the appellant; (2) termination of the proceeding in favor of the appellant; (3) absence of probable cause for the proceeding; (4) malice on the part of the appellee; and (5) damages. Wal-Mart Stores, Inc. v. Thomas, 76 Ark. App. 33, 61 S.W.3d 844 (2001).
In the context of malicious prosecution, the term “probable cause” is defined as a state of facts or credible information which would induce an ordinarily cautious person to believe that the accused is guilty of the crimes charged. Id. Ordinary caution is a standard of reasonableness that presents an issue for the jury when the proof is in dispute or is subject to different interpretations. Wal-Mart Stores, Inc. v. Williams, 71 Ark. App. 211, 29 S.W.3d 754 (2000). The existence of probable cause is determined by an examination of the information known to the defendant at the time the proceedings were instituted. Id. Where a defendant relied on an eyewitness statement, but was also in possession of contradictory facts, the jury should be allowed to consider all the evidence available to the defendant to determine if ordinary caution was exercised in bringing the charges. Id.
Sundeen argues that the trial court erred in ruling that probable cause existed for his arrest. He specifically asserts that the trial court erred in considering the criminal conviction in municipal court in ruling that there was probable cause. We disagree. In Kansas & Texas Coal Co. v. Galloway, 71 Ark. 351, 74 S.W. 521 (1903), our supreme court held:
The inquiry is not as to the facts which constitute the defendant in the former proceeding guilty or innocent, but, rather, what was said by witnesses in the former proceeding, which, it is to be presumed, determined whether or not there was probable cause for the prosecution, not that the defendants were guilty or innocent, for the rule is that, while the defendant in the former proceeding may have been found innocent and acquitted, yet that does not show a want of probable cause in the prosecution; it being not conclusive of anything as against the prosecutor, but a mere circumstance which, taken along with others, may induce the jury to find that there was a want of probable cause, and also that there was malice. The rule is quite different if the defendant in the prosecution is found guilty, for that is conclusive of the fact that there was probable and reasonable cause for the prosecution.
Id. at 358, 74 S.W. at 524; see also McNeal v. Millar, 143 Ark. 253, 220 S.W. 62 (1920). In Casey v. Dorr, 94 Ark. 433, 127 S.W. 708 (1910), the court went on to say that:
The rule seems to be established by the weight of authority that a judgment of conviction by a court of competent jurisdiction is conclusive evidence of the existence of probable cause, even though the judgment [is] subsequently reversed and set aside, unless it be shown that the judgment was procured by fraud or undue means.
Id. at 436, 127 S.W. at 709; see also Alexander v. Laman, 225 Ark. 498, 283 S.W.2d 345 (1955); Freeman v. Allen, 193 Ark. 432, 100 S.W.2d 679 (1937).
Here, the municipal court found Sundeen guilty of obstructing governmental operations and attempting to influence a public official. However, upon appeal to the circuit court, the State nolle prossed the charges. While it is true that the entry of a nolle prosse is a sufficiently favorable termination, see Crockett Motor Sales, Inc. v. London, 283 Ark. 106, 671 S.W.2d 187 (1984), the entry of a nolle prosse does not preclude a finding of probable cause to arrest. Based on the municipal court’s determination of guilt, we hold that there was probable cause to arrest Sundeen for obstructing governmental operations and attempting to influence a public official. Therefore, the grant of summary judgment as to Sundeen’s malicious-prosecution claim was proper.
In order to prevail on his abuse-of-process claim, Sundeen had to show the following: (1) a legal procedure set in motion in proper form, even with probable cause and ultimate success; (2) the procedure is perverted to accomplish an ulterior pur pose for which it was not designed; and (3) a willful act is perpetrated in the use of process which is not proper in the regular conduct of the proceeding. South Arkansas Petroleum v. Schiesser, 343 Ark. 492, 36 S.W.3d 317 (2001). The test is whether a judicial process is used to extort or coerce. See id. The key to the tort is the improper use of process after its issuance in order to accomplish a purpose for which the process was not designed. Id. Thus, it is the purpose for which the process is used, once issued, that is important in reaching a conclusion. Id. Examples of misuse of process that have been found to constitute the tort of abuse of process are the service of an arrest warrant; delivery of an order to a sheriff for execution; personal service procured by fraud; or attachment or garnishment for a greatly excessive amount. Carmical v. McAfee, 68 Ark. App. 313, 7 S.W.3d 350 (1999). Sundeen failed to establish that Kroger instituted judicial process as a means of coercion or extortion. Therefore, we conclude that the court’s grant of summary judgment as to Sundeen’s abuse-of-process claim was proper.
Affirmed.
Gladwin, J., agrees.
Baker, J., concurs.
Hart was an off-duty Little Rock police officer subcontracted to provide security for Kroger. He received compensation from Kroger. | [
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John Mauzy Pittman, Judge.
The appellee, Rachael Smith, is the mother of appellant, Wayne McCarley. Appellee filed suit against appellant, alleging that he convinced her to deed her 108-acre farm to him so that he could obtain a loan to pay off mortgage debts on the property and make improvements, with the agreement that he would re-deed the property back to her. She further alleged that he failed to return the property to her, and prayed that the court would order him to do so. Appellant denied making any such agreement and filed a counterclaim, alleging that he had incurred damages in the form of a lost chicken contract because of his mother’s lawsuit. The circuit judge entered an order that contained no findings of fact, but simply dismissed appellant’s counterclaim and granted appellee a life estate in the disputed property. The son appeals, asserting that the circuit judge’s order is not supported by the evidence and is otherwise erroneous, and the mother cross-appeals, asserting that the grant of a life estate was inadequate relief. We reverse and remand.
Our supreme court has recently stated:
To impose a constructive trust, there must be full, clear, and convincing evidence leaving no doubt with respect to the necessary facts, and the burden is especially great when a title to real estate is sought to be overturned by parol evidence. The test on review is not whether the court is convinced that there is clear and convincing evidence to support the chancellor’s finding but whether it can say the chancellor’s finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous, and we defer to the superior position of the chancellor to evalu ate the evidence. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.
Nichols v. Wray, 325 Ark. 326, 333, 925 S.W.2d 785, 789 (1996) (internal citations omitted).
We are convinced that a mistake has been committed in the present case because the trial court’s order is not supported by the facts in evidence. It would be permissible, in a land-transfer case, for the court to impose a constructive trust and grant relief in the form of a life estate if there was clear and convincing evidence that the land was deeded with the intention that the conveyor would be allowed to live on the land for the rest of her life. This was done in Brasel v. Brasel, 313 Ark. 337, 854 S.W.2d 346 (1993). However, there was no such evidence in the present case. The only evidence of an agreement came from the appellee, who stated that she deeded the property to her son in order to get a loan with the understanding that he would later return the property to her. This evidence, if believed, would support the imposition of a constructive trust, but the relief would not be a life estate because there was no agreement to that effect. Instead, the proper relief in these circumstances would be to require the mother to reimburse the son for his expenses, at which time the mother would be entitled to have legal title vested in her. See, e.g., Kerby v. Feild, 183 Ark. 714, 38 S.W.2d 308 (1931).
Because the imposition of a constructive trust is potentially consistent with the facts in evidence, but the relief granted by the circuit judge is not, we are unable to determine the basis for the chancellor’s decision on appellate review sufficiently to permit us to fully address the issues presented on appeal and cross-appeal. Therefore, further proceedings are needed to allow the chancellor to fashion relief consistent with the facts in evidence. Consequently, we reverse and remand for further proceedings consistent with this opinion. See Wrightsell v. Johnson, 77 Ark. App. 79, 72 S.W.3d 114 (2002).
Reversed and remanded.
Robbins and Vaught, JJ., agree. | [
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Olly Neal, Judge.
The issue in this case is which of two governmental entities has the right to certain tax revenues. In 1991, Hot Spring County voters approved a one percent sales and use tax, to be used primarily to fund the operation of the appellant, Hot Spring County Solid Waste Authority (the SWA). By 2003, the total income generated by the tax exceeded SWA expenditures by $3,440,339.23, and, in 2004, the appellee, Hot Spring County,- transferred that amount, plus an additional $59,660.77 (for a total of $3.5 million), to its “Future Jail Construction Fund.” The SWA asked the circuit judge to order the money returned to it. Following a hearing, the judge ruled that the County was entitled to the money, although he required the County to reimburse the SWA $59,660.77. The SWA now brings this appeal. We affirm.
The County established the SWA by ordinance in 1985, pursuant to the Joint County and Municipal Solid Waste Disposal Act. See Act 699 of 1979. The Act permits municipalities and counties to create and become members of a sanitation authority, see Ark. Code Ann. § 14-233-104 (Supp. 2005), and recognizes the sanitation authority as “a public body and body corporate and politic.” See Ark. Code Ann. §§ 14-233-102(12), -105(c)(3) (Supp. 2005). Our supreme court has described an authority created pursuant to the Act as a “separate governmental entity.” See Barnhart v. City of Fayetteville, 321 Ark. 197, 204, 900 S.W.2d 539, 542 (1995).
In the early years of the SWA’s operation, it was funded by a flat user fee assessed to each household, to be collected annually with personal-property tax. However, in December 1990, the County repealed the user fee and called for an election to levy a one-percent county-wide sales-and-use tax. The Ordinance, using the following pertinent language, established the manner in which the tax proceeds would be used:
Section 2. The Quorum Court of Hot Spring County, Arkansas hereby calls for an election for the levy of a one percent (1%) county-wide sales and use tax to be in effect for a period beginning February 1, 1991, and the revenues derived from the sales and use tax shall be used as hereinafter provided.
a. The entire per capita share of Hot Spring County’s sales and use tax shall be deposited into the Hot Spring County General Fund as the same may be received from the State Treasurer and thereafter appropriated by the Quorum Court for the following designated purposes:
(i) 95% shall be appropriated annually to pay the existing indebtedness of SWA to FmHA and Bank of Malvern, Malvern, Arkansas, and the annual operation and maintenance of SWA and upon the retirement of the debt to FmHA and Bank of Malvern, Malvern, Arkansas, these revenues may be appropriated by the Quorum Court:
(A) FIRST: To fund the annual operation and maintenance of SWA, and;
(B) SECOND: To fund other general needs of the County as authorized by law.
(ii) 5% shall be appropriated into a reserve fund to be used for the purchase, acquisition and/ or construction of landfills and recycling facilities, all for the purpose of solid waste disposal and/or recycling.
The voters approved the levy in 1991, and collection of the tax began. The SWA’s debts to FmHA and the Bank of Malvern were satisfied in 1993.
Beginning in 1994, the sales-tax proceeds, which were placed in the SWA Fund 3500 in the county treasurer’s office, were made available to the SWA for annual operation and maintenance. On a yearly basis, the SWA would prepare a budget for the County quorum court, and the court would generally make an appropriation. The SWA would then submit claims for the money as needed (although in more recent years the County simply transferred a set amount each month to the SWA). Between 1994 and 2003, the SWA’s expenditures from the 3500 Fund were, as a rule, considerably less than the amount of tax proceeds available. As a result, unspent money began to accumulate, and by December 2003, that amount totaled $3,440,339.23.
In 2003 and 2004, budgetary disputes arose between the SWA and the County, and the SWA began to realize that the County had its eye on the unspent tax revenues. In order to stake its own claim to those revenues, it submitted 2004 and 2005 budget requests of approximately $4.2 million and $3 million, respectively, which considerably exceeded 2003’s request of about $1.5 million. The County declined to appropriate those amounts. Then, on November 15, 2004, the County, by Ordinance 04-37, established a “Future Jail Construction Fund” to be funded with $3.5 million appropriated from the unspent tax revenues.
In response, the SWA moved for a temporary restraining order enjoining the transfer of the funds. Its primary contentions were that the SWA, as an independent body politic, was in charge of its own budget and the County had no power to modify or reject the budget; that the County could use the tax revenues for its own purposes only if there were “excess” funds available; and that the $3.5 million taken by the County was not excess money but the result of 1) prudent long-term management by the SWA, and 2) the County’s refusal to appropriate the full amount of SWA’s 2004 and 2005 budget requests. The County, on the other hand, claimed that the SWA had been able to operate within its budget and accumulate a sizeable excess, which, under the terms of the tax ordinance, could be used for other County needs, such as a new jail.
Following a hearing on September 25, 2005, the trial judge entered an order containing numerous findings of fact and conclusions of law. Many of the findings and conclusions favored the SWA, for example, that the SWA was a separate governmental entity; that the County had no authority to supervise the SWA operations or exercise any hold over the SWA’s “budgetary purse strings”; that the County’s appropriation of funds to the SWA from the tax revenues was a purely ministerial act; that the County quorum court had no authority to reject or modify the SWA’s budget; and that funds collected for 2004 and 2005 were to be “rebudgeted.” However, as pertinent for our purposes, the court ruled that: 1) the structure of the sales tax approved by voters envisioned the possibility that the sales tax could generate more funds than were necessary to fund the SWA; 2) only in such event would there be “excess funds” to be used for non-SWA purposes; 3) at the end of 2003, there was a “surplus of money” that had accumulated since 1994 in the amount of$3,440,339.23; 4) no one had used these “excess funds” for ten years, and it was obvious that the money was not needed by the SWA; 5) the County was entitled to transfer the $3,440,339.23 to the Jail Fund; 6) because the County had transferred $3.5 million, it must reimburse the SWA $59,660.77.
Following entry of the trial court’s order, the SWA filed a timely posttrial motion to amend the findings or for a new trial, which was denied. This appeal followed.
Our standard of review from a bench trial is well established. When a case is tried by a circuit court sitting without a jury, the inquiry on appeal is whether the trial court’s findings are clearly erroneous, or clearly against the preponderance of the evidence. Brown v. Blake, 86 Ark. App. 107, 161 S.W.3d 298 (2004). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed. Cole v. Cole, 89 Ark. App. 134, 201 S.W.3d 21 (2005).
The SWA argues first that the trial court’s use of December 31, 2003, as the date for determining the amount of excess funds was clearly erroneous. The trial court used the 2003 date despite the fact that the County made the actual transfer of revenue in December 2004 — a time by which, according to the SWA, it had established its entitlement to the money through the 2004 and 2005 budget requests.
We see no clear error in the court’s use of the 2003 date. From 1994 to 2003, unspent tax money accumulated without regard to whom it belonged. Controversy began to simmer in the latter part of 2003, when the County made a budget cut and the SWA requested $4.2 million for the upcoming 2004 budget year. The trial court may therefore have concluded that the 2003 year-end represented the last, most accurate accounting of the unspent tax revenue prior to the controversy being joined in earnest the following year. Moreover, the trial court required the 2004 and 2005 SWA funds to be re-budgeted, and therefore, by its use of the December 2003 date, created a new starting point for the parties beginning in 2004. Thus, the court’s use of the December 2003 date is logical in light of its ruling as a whole, and certainly cannot be considered arbitrary, as the SWA suggests.
Next, the SWA contends that the trial court clearly erred in characterizing the unspent revenues as “excess.” This contention is based on the SWA’s claims that, over the years, the County treated those revenues as belonging to the SWA; that the County could not unilaterally take such revenues without first making a determination that the revenues were “excess” in nature; and that such revenues could not be denied once the SWA expressed a need for them, unless the request was arbitrary, which has not been shown here. We find no merit in any of these points.
The language of the County’s levying ordinance in the case at bar states that, once the SWA’s debts are paid and five percent is set aside for a reserve fund, the object of the tax is: “(A) FIRST: To fund the annual operation and maintenance of SWA, and; (B) SECOND: To fund other general needs of the County as authorized by law.” The ballot title from which the voters approved the tax, stated that the tax was “for the benefit of SWA, Hot Spring County and the several municipalities therein . . . .” Words in an ordinance are generally given their natural and obvious import and their ordinary and commonly accepted meaning. See Thompson v. Younts, 282 Ark. 524, 669 S.W.2d 471 (1984). Moreover, electors have a right to look to the ordinance and ballot title to ascertain what they are being asked to approve, and the ballot title is the final word of information and warning to which the electors have the right to look as to what authority they are being asked to confer. See Daniel v. Jones, 332 Ark. 489, 966 S.W.2d 226 (1998).
With these precepts in mind, we observe, as the trial court did, that the ordinance and the ballot title clearly contemplated that the tax might raise revenues over and above what was needed for the SWA’s annual operation and maintenance. Moreover, the ordinance established a priority for such an eventuality, that is, that the money would go “first” to the SWA and “second” to the County’s other needs. Common sense, then, would dictate that tax revenues not spent on the SWA’s annual operation and maintenance could be used by the County. Nowhere do we find a requirement, as urged by the SWA, that, before the County could receive the tax proceeds at issue here, an express determination must have been made that excess funds existed; nor do we believe that the arbitrariness or lack thereof of the SWA’s purported need for the tax revenues has any bearing on the trial court’s award of the particular funds at issue here. Further, even if we agreed with the SWA that the County historically regarded the unspent funds as belonging to the SWA, we do not agree that such actions can serve to alter the manner in which the voters intended to spend the tax proceeds. Instead, we simply express our accord with what we believe is the essence of the trial court’s ruling: that, under the taxation scheme in the present case, the revenues that accumulated over the years were not spent on the tax’s “first” object, the SWA’s annual operation, and were therefore available to be spent on the “second” object, the County’s general needs. We thus conclude that the trial court’s declaration that the $3,440,339.23 was available for the County’s use is not clearly erroneous.
Finally, as an alternative argument, the SWA avers that the trial court should have awarded it a reimbursement of $520,000 rather than $59,660.77. This argument is based on the fact that, in 2003, the SWA had been appropriated approximately $1.56 million dollars. In August 2003, by which point the County had transferred to the SWA approximately $1.04 million, the County stopped transferring money for the remainder of the year. Thus, $520,000 of appropriated money was never transferred to the SWA, and, according to the SWA, that resulted in the 2003 year-end excess fund being artificially inflated by that amount.
As the trial court observed, there was evidence that the County’s decision to stop transferring money to the SWA came about not of the County’s own accord but at the behest of the Bureau of Legislative Audit. According to witnesses, Legislative Audit required this action because the SWA had accumulated a large amount of funds in its own operating account. Thus, the trial court may well have reasoned that the budget cut was not the result of the County exercising improper authority over the SWA’s budget but rather an auditor determining that the SWA should operate with the money it had on hand. Under these circumstances, we do not agree that the figure of $3,440,339.23 was artificially inflated — it represented money that, as of December 31, 2003, had not been spent on the annual operation and maintenance of the SWA.
In light of the foregoing, we affirm the trial court’s order.
Affirmed.
Pittman, C.J., and Bird, J., agree.
The other named appellees are Raymond Yerby and Harold Thornton, citizens of Hot Spring County and members of the County quorum court. For convenience, we will refer to all appellees as the County.
The County had actually filed suit m October 2003, seeking a declaratory judgment regarding its ability to use the tax revenues. The trial judge declined to make a complete ruling on the issue since the County had not, at that time, tried to use any of the revenues. The SWA’s motion for a restraining order was simply a continuation of that action.
These conclusions were not appealed by the County and will not be addressed further except as they relate to points raised by the SWA. | [
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Olly Neal, Judge.
Appellant Marandi Shirley Bernal appeals from an order of the Garland County Circuit Court that found her in contempt of the court’s last custody order and awarded appellee James Shirley custody of the parties’ three children. On appeal, appellant argues that: (1) the trial court erred in changing custody of the children, as it did not find that there had been a material change of circumstances since the last order affecting custody; (2) the trial court erred in changing custody of the children, as it did not consider the best interest of the children; (3) the trial court erred when it used the change of custody to punish appellant for being in contempt of the trial court’s order. We reverse and remand.
The facts of this case are as follows. The parties were divorced on March 31, 1996. Three children were born during the marriage, a daughter Cortnie, age ten, and twin sons, Stephan and Shaun, age nine. Appellant was awarded custody of the children subject to appellee’s visitation. Both parties have subsequently remarried and appellant has relocated to Louisiana.
Since their divorce, the parties have filed several contempt motions and petitions to change custody. Prior to the current matter, the last order affecting custody was entered on June 29, 2004. That order found appellant to be in “willful and wanton” contempt of the court’s previous order. The order provided that the contempt could be purged by allowing appellee to exercise visitation from May 28, 2004, until June 9, 2004. The order further provided that: (a) appellee was to have telephone visitation each Tuesday and Thursday between 6:30 and 7:00 p.m.; (b) for subsequent visitations with appellee, the children were to be exchanged at a gas station in Hope and, during the exchange, the parties were to have no contact; (c) appellant was to provide appellee with a copy of each child’s school calendar; and (d) each party was to share information about the children’s medical and scholastic activities.
On April 1, 2005, appellee filed a petition for contempt and change of custody. In the petition, appellee alleged that: 1) appellant had moved from her last known residence in Louisiana and had failed to inform appellee of her new address; 2) appellant’s phone had been disconnected and he was unable to exercise his telephone visitation; 3) he had been denied spring-break visitation, Easter visitation, and visitation on his birthday; and 4) appellant had failed to keep him abreast of the children’s scholastic activities and medical needs. Appellee asserted that due to appellant’s contempt, he should be awarded custody of the parties’ children. Appellee filed an amended petition for contempt and change of custody on June 3, 2005, alleging that there had been a material change of circumstances and that it would be in the best interest of the children if he were awarded custody.
On June 24, 2005, appellee filed a petition for emergency ex-parte relief. He alleged that he had been denied summer visitation. Attached to the petition was an affidavit from appellee, in which appellee stated that the children’s last day of school was May 20, 2005, that his summer visitation was to begin on May 27, 2005, and that appellant refused to meet him on May 27. An emergency ex-parte order, ordering appellant to relinquish the children to appellee’s custody, was entered on June 27, 2005. Appellant was served with the order on July 5, 2005. On July 7, 2005, appellant filed a motion to set aside the ex-parte order. That same day an order was entered setting the ex-parte order aside.
A hearing on appellee’s petition for contempt and change of custody was held on August 11, 2005. At the hearing, Deputy Harlan Smith of the Garland County Sheriffs Department testified that he assisted in serving appellant with the ex-parte order. He said that the order was served on appellant at the sheriffs office. He testified that appellant became upset when she learned she was being served with the order. Deputy Smith said that appellant used profanity and had to be escorted out of the sheriffs office. He testified that the parties’ boys did not want to comply with the order and that the officers had to physically carry one of the boys to appellee’s car and force him inside.
Appellee testified that, since the last hearing, appellant had changed residences in Louisiana and had failed to give him her new address and phone number. He said that, as a result, he was unable to exercise his telephone visitation. He later testified that he received appellant’s phone number on April 26. Appellee also testified that, since the last order, he had missed seventy days of visitation with his children. He said that he had been denied spring-break visitation, Easter visitation, and visitation on his birthday. Appellee conceded that some of the days that he missed were the result of his not being able to pick the children up due to work commitments.
Appellee testified that he and appellant do not get along. He said that appellant refuses to discuss why the boys fail to bring their glasses and hearing aids when they visit him. He also said that there was a physical altercation between the parties and their respective spouses during an exchange on October 31, 2004. Appellee later testified that appellant never brings the children to Hope for the exchange. He said that appellant’s mother usually brings the children to Hope. He admitted that on May 27, appellant’s mother brought the children to Hope. He also admitted, “It could have been misleading to the court when I stated in my affidavit that [appellant] didn’t bring the kids for visitation when in fact her mother did bring them.” He said that, during the May 27 exchange, one of the boys refused to go with him.
Appellee thought that it would be in the children’s best interest if he were awarded custody. He said that, in addition to the child he has with his wife, his wife has three children that live with them. Appellee admitted that he has trouble disciplining the boys and that he sometimes has his brother discipline the boys. Appellee denied making derogatory remarks about appellant in front of the children. He accused appellant of making derogatory remarks about his wife in front of the children.
Appellee testified that, in February 2005, he sent a letter to appellant expressing concern about a date Cortnie was to have. However, he denied writing a letter in which he stated that, if the boys did not want to visit him, then he would no longer make them visit. During his testimony, appellee stated that, since giving the children’s school copies of the court orders, he does not have trouble getting reports from their school.
Cindy Shirley, appellee’s wife, testified that she kept a calendar of the children’s visitation. She said that, since April 2004, Cortnie had only visited ninety-one days, Shaun had visited forty-eight days, and Stephan had visited forty-two days. Mrs. Shirley believed that the children would be better off in her husband’s custody. She testified that they live in a mobile home that consist of two single-wides and that the home has four bedrooms and one bathroom. She said that she was prepared to do whatever it took to make sure the children had a good relationship with appellant.
Mary Cooper, appellant’s grandmother, testified that, on July 5, she took the children to meet appellee. She said that, when Cortnie expressed a desire to stay with her, appellee started yelling and cursing at Cortnie. She said that appellee accused her of brainwashing the children and that appellee left without the children. She said that appellant has encouraged the children to visit appellee; however, despite appellant’s encouragement, the boys refuse to visit appellee. Ms. Cooper testified that the children loved both parents, but wanted to live with appellant.
Mary Goin, appellant’s mother, testified that she had brought the children to Hope every time appellee was to have visitation. She said that, almost every time, the boys refused to go with appellee. Ms. Goin testified that she did not take the children on October 31, because appellee had insisted that appellant bring the children. During her testimony, Ms. Goin explained that one time, prior to his scheduled visitation, appellee told Stephan he could not come because he was grounded for refusing to talk to appellee during his telephone visitation. She said that, when she took the children to Hope, appellee sent Stephan back to her car. Ms. Goin stated that appellant had never discouraged the boys from visiting appellee. She also said that appellee has always had her address and phone number and could have reached appellant through her. She testified that she had mailed a letter to appellee that contained appellant’s new address.
Appellant testified that, on the day she was served with the ex-parte order, she had just learned that her father and three other family members had been killed in an accident. She said that she had called appellee and asked to pick up Cortnie. She said that she thought she was at the sheriff s office to pick up Cortnie. Appellant testified that, in the last order, she was ordered to take the children to Hope so appellee could exercise his visitation. She said that, since then, except when appellee was unable to pick the children up, the children had been taken to Hope each time appellee had a scheduled visitation. Appellant said that she had encouraged the children to visit appellee. She testified that if she had known that the order meant that she was to take the children to Hope and force them into appellee’s car, she would have done so.
Appellant testified that, in June, she received a letter from appellee saying that, since the children did not want to visit, he was no longer going to pick them up. Appellant denied refusing to give appellee her new address and phone number. She said that appellee had her mother’s address and phone number and that he had called her several times. She said that when she got a phone, she gave appellee her phone number. Appellant explained that, when she moved, the children’s spring break changed, so appellee’s spring-break visitation was cut short. She pointed out that appellee’s birthday was in June, and that his petition was filed in April 2005. She said that appellee did have his birthday visitation in June 2004. She also said that appellee was allowed his Easter visitation. Appellant maintained that she had made every effort to comply with the court’s order. She accused appellee’s wife of making derogatory remarks about her.
On September 1, 2005, the trial court entered an order finding appellant in “wanton and willful contempt” of the court’s orders. The court found that appellant had: (1) refused to allow appellee to exercise his visitation; (2) failed to keep appellee abreast of the children’s scholastic activities, growth, and development; and (3) failed to provide appellee with her address and phone number. The trial court sentenced appellant to thirty days in the Garland County Detention Center with twenty days suspended.
In the September 1 order, the trial court also granted appellee’s petition for change of custody. The order provided that after thirty days, appellant would have visitation every other weekend and that the parties would continue to exchange the children at the Hempstead County Sheriffs Department. The order also provided that appellant would have telephone visitation every Tuesday and Thursday. From that order, appellant now brings this appeal.
In child-custody cases, the primary consideration is the welfare and best interest of the child involved. Dansby v. Dansby, 87 Ark. App. 156, 189 S.W.3d 473 (2004). Custody will not be modified unless it is shown that there are changed conditions demonstrating that a modification is in the best interest of the child. Id. In cases involving child custody and related matters, we review the case de novo, but we will not reverse a trial judge’s findings in this regard unless they are clearly erroneous. Jowers v. Jowers, 92 Ark. App. 374, 214 S.W.3d 294 (2005). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Id. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Id.
Custody should not be changed unless conditions have altered since the decree was rendered or material facts existed at the time of the decree but were unknown to the court, and then only for the welfare of the child. Middleton v. Middleton, 83 Ark. App. 7, 113 S.W.3d 625 (2003). The court must first determine that a material change in circumstances has occurred since the last order of custody, if that threshold requirement is met, it must then determine who should have custody with the sole consideration being the best interest of the child. Id. The party seeking the modification has the burden of showing a material change of circumstances sufficient to warrant a change in custody. Id.
Appellant argues that the trial court failed to find that a material change of circumstances had occurred and that the trial court also failed to consider the best interest of the children. We agree. A review of the trial court’s order reveals that the trial court never made a finding that a material change of circumstances had occurred and based upon the record before us, we are unable to find that a material change of circumstances had occurred. It was undisputed at the hearing that the children were well-cared for and doing well in school. There was no evidence of the children’s preference. Furthermore, the living conditions with appellee would be significantly less advantageous — nine people sharing four bedrooms and one bath in two single-wide mobile homes pushed together. Accordingly, we hold that the decision of the trial court to award custody of the parties’ children to appellee was clearly erroneous, and we reverse and remand.
Appellant also argues that the trial court erred when it used the change of custody of the children to punish appellant for contempt of the court’s orders. A violation of the court’s previous directives does not compel a change in custody. Carver v. May, 81 Ark. App. 292, 101 S.W.3d 256 (2003). The fact that a party seeking to retain custody of a child has violated court orders is a factor to be taken into consideration, but it is not so conclusive as to require the court to act contrary to the best interest of the child. Id. To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i.e., the welfare of the child involved. Id. Instead, to ensure compliance with its orders, a trial court has at its disposal the power of contempt, which should be used prior to the more drastic measure of changing custody. Powell v. Marshall, 88 Ark. App. 257, 197 S.W.3d 24 (2004).
Without a finding of a material change of circumstances and a discussion of what was in the best interest of the children, the trial court could not use the mere violation of its previous orders as the sole justification for changing custody of the children. We are unable to say that appellant’s contemptuous behavior alone was a material change of circumstance and, accordingly, we reverse and remand the trial court’s decision.
Reversed and remanded.
Hart and Vaught, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant, Office of Child Support Enforcement (OCSE), asserts two points of error in the trial court’s decision in this case. It alleges that the trial court erred in remitting or voiding the arrears that accrued under the parties’ divorce decree for the time that appellee did not have physical custody of the dependents. Appellant also alleges that the trial court erred in not properly offsetting the support owed by the appellee while he had physical custody of the dependents pursuant to Arkansas Code Annotated section 9-14-234, which provides that a court may offset against future support to be paid those amounts accruing during time periods ... in which the noncustodial parent had physical custody. We affirm as modified.
The trial court in this case refused to find appellee in contempt for failure to pay child support and found that appellee was entitled to a credit of child support from June 24, 1999, through August 1, 2002. The divorce decree between appellee, the payor father in this case, and the mother was filed on June 25, 1999. The decree awarded the mother custody of the parties’ two minor children (then three and one years of age), and ordered appellee to pay child support to the mother through the clerk’s office at the rate of $85 per week. The decree also granted a judgment against appellee for retroactive child support in the amount of $1050 toward which the court ordered appellee to pay an additional $20 per week until the entire amount was paid.
Subsequent to the filing of the decree, no other action or filing was taken until July 26, 2005, when appellant filed its motion to intervene simultaneously with a motion for citation alleging that appellee had willfully refused and failed to comply with the support order and should be jailed. The motion alleged that appellee had accrued an arrearage in the amount of $24,125 as of May 27, 2005, and that the State of Arkansas was entitled to judgment. The motion also requested affirmative relief, asking the court to order appellee to secure and maintain health care insurance coverage as available through his place of employment, or another group plan, if not already provided by appellee.
The circuit court granted intervention and issued an order to appear and show cause. Appellee timely answered and filed his motion for contempt and for credit for child support provided by him. He asserted that he had provided support for the children by allowing the children and mother to live in housing provided to him as part of his compensation for labor to his employer, valued at $350 a month, and for providing the sole support for the children for a year when the children lived with him. The testimony at trial supported these allegations.
At trial, the OCSE’s attorney informed the court that it had intervened in the action and was pursuing the payment of the support by, and an arrears judgment against, appellee upon the request of the Attorney General’s Office of the State of Texas, made pursuant to the Uniform Interstate Family Support Act. Counsel explained that the mother of the parties’ two children and the children had moved their residence to Texas. With this explanation, OCSE called its only witness, an investigator employed by OCSE whose job included the monitoring and tracking of appellee’s payment history of child support and calculation of arrearages.
The trial court ruled from the bench and stated that it was giving appellee credit from the date of the divorce through the end of July 2002, finding support paid in full for that time period, with any arrearage accruing from August 1, 2002. The court explained to appellee that he must understand that his future support payments were to be tendered through the appropriate administrative agency in order to properly obtain credit for future payments. The court also found that appellee was not in contempt of the court’s prior orders and denied attorney fees and costs. The written order was filed on November 7, 2005. Rather than stating that the court had found that appellee had paid support, thus finding the child-support judgment satisfied, the order stated that appellee was entitled to “an abatement” of child support from June 24, 1999, through August 1, 2002.
The standard of review for civil contempt is whether the finding of the circuit court is clearly against the preponderance of the evidence. See Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Our standard of review for an appeal from a child-support order is de novo on the record, and we will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Ward v. Doss, 361 Ark. 153, 205 S.W.3d 767 (2005). A finding is clearly erroneous when, even though there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004). In reviewing a circuit 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. Evans v. Tillery, 361 Ark. 63, 204 S.W.3d 547 (2005).
Appellant concedes that it can make no argument that the circuit court clearly erred in finding that appellee supported the children during the time they were in their mother’s custody by providing their housing with its rental value. Neither can it challenge the finding that appellee provided the sole support for the children for the year they were in his sole custody. Therefore, appellant presents no argument that the trial court erred in finding that appellee had provided support for the children, although the provision of the support was non-conforming with the court’s decree that ordered the support to be paid through the court clerk.
Although appellant makes no challenge to the trial court’s finding that the child support was paid, appellant nevertheless asserts that the trial court erred, insisting that appellee never filed any affirmative pleading to modify his support obligation under the decree and argues that he failed to properly plead and prove one of the equitable defenses. Appellant sets forth no argument or law supporting the proposition that a trial court’s finding that a child-support obligation has been satisfied through a nonconforming payment somehow modifies the original judgment.
Appellant’s confusion may arise from the use of the word “abatement” in the written order. The term “abatement” includes the definition of [t]he suspension or cessation, in whole or in part, of a continuing charge.” Black’s Law Dictionary 4 (6th ed.1990). The retroactive suspension or cessation of a validly entered continuing support order would qualify as a retroactive modification and is prohibited:
It is well setded that a parent has a legal duty to support a minor child regardless of the existence of a support order. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979); Nason v. State, 55 Ark. App. 164, 934 S.W.2d 228 (1996); Dangelo v. Neil, 10 Ark.App. 119, 661 S.W.2d 448 (1983). Moreover, retroactive support is not illegal, and is often awarded when an initial support order is entered. See, e.g., Nason, supra; Pardon v. Pardon, 30 Ark. App. 91, 782 S.W.2d 379 (1990). See also Wilder v. Garner, 235 Ark. 400, 360 S.W.2d 192 (1962) (mother awarded back child support where divorce decree granting custody made no provision for support).
However, retroactive modification of a court-ordered child support obligation may only be assessed from the time that a petition for modification is filed. Ark. Code Ann. § 9-14-234 (Supp.1995); Grable v. Grable, 307 Ark. 410, 821 S.W.2d 16 (1991); Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996). Additionally, it is well settled that a support order by a court of competent jurisdiction remains in force until modified by a subsequent decree, or in limited situations by operation of law. Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993); Laroe v. Laroe, 48 Ark.App. 192, 893 S.W.2d 344 (1995).
Yell v. Yell, 56 Ark. App. 176, 178-79, 939 S.W.2d 860, 862 (1997).
Once a child-support payment falls due, it becomes vested and a debt due the payee. Chitwood v. Chitwood, 92 Ark. App.129, 211 S.W.3d 547 (2005). However, enforcement of child-support judgments are treated the same as enforcement of other judgments, and a child-support judgment is subject to the equitable defenses that apply to all other judgments. Id.
In its argument, appellant claims that appellee cannot prevail because he failed to use the terms “estoppel,” “waiver,” “laches,” or any other term recognized as an equitable defense in his pleadings, nor did he prove that he relied to his detriment on any agreement or discussion between him and the mother that his payment of rent would stand in lieu of paying support under the decree. While appellant does not reference the doctrine of satisfaction in equity in its argument, appellant’s reasoning incorporates the basic tenets of that doctrine. The doctrine is stated as follows:
The doctrine of satisfaction in equity is somewhat analogous to performance in equity, but differs from it in this respect: that satisfaction is always something given either in whole or in part as a substitute or equivalent for something else, and not (as in performance) something that be may be constmed as the identical thing covenanted to be done.
Black’s Law Dictionary 1342 (6th ed.1990).
Appellant’s argument is based upon the premise that appellee’s provision of child support through means other than through the clerk’s office was a substitution for the original obligation. However, the trial court in this case found that the original child-support judgment had been paid through a nonconforming payment, not that appellant was relieved from his original obligation in any way. Although appellant argues that no equitable defenses were proven to the trial court, this is not a situation where the court declined to permit enforcement of the child-support judgment finding that appellee had proved an equitable defense. Instead, the trial court found that the judgment itself had been satisfied; therefore, no arrearage had accrued. The directive in the decree to pay the judgment through the clerk’s office was, as the trial court recognized in its admonition to appellee, merely a means to help ensure proper credit for payments.
Accordingly, the use of the term “abatement” in the written order was improper. The order should be modified to replace the phrase, “That the Defendant is entitled to an abatement of child support from June 24, 1999, through August 1, 2002,” to read, “That the Court finds that Defendant has satisfied the child-support judgment from June 24, 1999, through August 1, 2002, by providing support through non-conforming child-support payments. . . .” With this modification, we affirm the trial court’s decision.
Affirmed as modified.
Bird and Roaf, JJ., agree. | [
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Larry D. Vaught, Judge.
This is a contract case. Appellant Mountain Pure L.L.C. sued Affiliated Foods Southwest Inc. for breach of a supply agreement. Mountain Pure also sued vendors Turner Holdings L.L.C., Portola Packaging Inc., Stone Container Corp., and Consolidated Container Co. L.L.C. for selling defective jugs, caps, and cartons that Mountain Pure used in its commercial water and juice bottling business. The vendors counterclaimed against Mountain Pure for open-account debt. The trial court granted summary judgment to Affiliated and to the vendors. We reverse and remand for trial.
In January 2000, Mountain Pure’s predecessor in interest, Dairy Farms of America Inc., purchased Mountain Pure from Affiliated. The sale was tied to a tandem, long-term supply agreement. For eight years, Affiliated was obligated to buy water and juice products from Mountain Pure in the same amounts — subject to agreed adjustments — that it had been buying prior to the sale. As an essential condition of the sale, Mountain Pure would serve as Affiliated’s “primary supplier of water and juice products,” until January 2008.
In the spring of 2001, the parties’ relationship became strained due to problems with leaky jugs, leaking caps, and collapsing cartons. For several months Affiliated and Mountain Pure worked together in an attempt to resolve the problems. However, on July 2, 2001, Affiliated notified Mountain Pure by letter that it would begin buying water and juice from other suppliers because the leakage problems had not been corrected to Affiliated’s satisfaction.
In a letter dated July 9, 2001, Mountain Pure outlined the corrective measures it had undertaken in an attempt to satisfy Affiliated. It also stated that it was committed to resolving any future problems encountered by Affiliated. Mountain Pure also reminded Affiliated that the supply agreement was a critical portion of the plant-purchase agreement.
Affiliated never resumed major purchases from Mountain Pure. In response, Mountain Pure sued Affiliated, alleging breach of the supply agreement. Mountain Pure claimed that it had cured the leakage problems but that Affiliated refused to honor the supply agreement. Mountain Pure also sued the vendors — Turner, Portola, Stone, and Consolidated — from which it bought jugs, caps, and containers for breach of contract and breach of warranties. Each vendor filed a counterclaim for debt against Mountain Pure for unpaid bills.
The parties’ labyrinth of claims and counterclaims have produced a Gordian knot of epic proportion. Because we have once before outlined “the long and convoluted procedural history” of the case, we will now discuss only the procedural elements essential to this second appeal. See Mountain Pure, L.L.C. v. Affiliated Foods Southwest, Inc., 366 Ark. 62, 63, 233 S.W.3d 609, 610 (2006) (quoting full outline of case’s procedural history contained in an unpublished opinion of the Arkansas Court of Appeals).
After the parties conducted discovery, Affiliated and the vendors made a series of summary-judgment motions. The circuit court granted Affiliated summary judgment on Mountain Pure’s claim for breach of the supply agreement. The court concluded that no genuine issues of material fact existed and held that Mountain Pure had repudiated the supply agreement. Initially, the court allowed Mountain Pure to nonsuit its defect-based claims for breach of contract and breach of warranties. However, the court ultimately vacated those nonsuits and granted the vendors summary judgment on those claims. Mountain Pure had conceded that, while it could prove the total damages it suffered from the allegedly defective jugs, caps, and cartons, it could not apportion those damages exactly among the vendors. The court held that Mountain Pure could not “meet its burden of proof on the causes of action for breach of contract” and could not apportion damages to each vendor.
The circuit court later granted summary judgment to all the vendors on their debt counterclaims. In doing so, the court relied on its earlier summary judgments on Mountain Pure’s contract and warranty claims against the vendors. The court rejected Mountain Pure’s argument that the record established genuine issues of material fact on Mountain Pure’s affirmative defense of defect to the vendors’ claims for non-payment. Mountain Pure now appeals, limiting its claims of error to the summary judgments for Affiliated on the supply agreement and for the vendors on their debt counterclaims. Mountain Pure challenges the circuit court’s grant of summary judgment on Mountain Pure’s contract and warranty claims against the vendors only insofar as the court’s decision is incorporated into the defect and debt issues on appeal.
We begin our plenary review of the record with the written supply contract between Mountain Pure and Affiliated, viewing all evidence and resolving all inferences in Mountain Pure’s favor. See Cole v. Laws, 349 Ark. 177, 185, 76 S.W.3d 878, 882 (2002) (outlining summary-judgment review standard). According to Jerry Davis, the President and CEO of Affiliated, the sale of the plant was conditioned on the execution of this agreement. John Stacks, the President and CEO of Mountain Pure, concurred by stating that his company “relied upon that agreement when [it] acquired the Mountain Pure business from Affiliated.” The agreement, dated January 21, 2000, required that Mountain Pure supply Affiliated with quality water and juice products; it obligated Affiliated to use Mountain Pure as its “primary supplier of water and juice products” for eight years after the plant sale.
The supply agreement also outlined a procedure whereby, under certain conditions, Affiliated could make major purchases of water and juice from other suppliers. The breach-of-contract dispute now before us turns on this provision, which states:
Affiliated will only make major purchases of water and juice products from another supplier only (i) after a “Failure to Cure,” when and this only so long as the Failure to Cure continues experiencing or (ii) where Supplier cannot meet Affiliated’s needs due to a condition beyond Supplier’s control (force majeure). “Failure to Cure” shall mean Supplier’s failure to cure any quality problems within three (3) business days after Affiliated shall have delivered to Supplier written notice specifying the nature of the quality problem. The term “a condition beyond Supplier’s control” will mean a delay if and to the extent caused by occurrences beyond the reasonable control of Supplier, including, but not limited to, acts of God, embargoes, governmental restrictions, governmental rationing, fire, flood, drought, earthquake, torna does, hurricanes, explosions, riots, wars, civil disorder, failure of public utilities or common carriers, labor disturbances, rebellion or sabotage.
As anticipated by this provision, beginning in April 2001, there were “quality” problems with Mountain Pure’s products. The record contains several letters between Affiliated and Mountain Pure documenting the parties’ efforts to address these problems. The majority of the deposition testimony in this case oudines the various steps that the parties undertook to resolve the leaky-product dilemma. Mountain Pure offered proof that it had cured most of the problems no later than October 2001. Affiliated offered proof that the problems were never resolved. It is undisputed that Affiliated failed to resume using Mountain Pure as its “primary supplier” of water and juice products.
Giving Mountain Pure’s evidence the highest probative value, as we must, it is clear that a question of material fact remains as to when — or if — Mountain Pure cured the “quality” problems with its products. Affiliated responds that this question of fact notwithstanding, summary judgment is still the proper remedy because the undisputed proof establishes that the product inadequacies continued well beyond three days. However, such a conclusion is based on a contorted reading of the supply agreement’s time-to-cure provision.
Affiliated is mistaken as to what the contract’s cure provision does and — more importantly — does not provide. The plain and unambiguous language of the contract establishes an outward limit of three days for Mountain Pure to cure before Affiliated’s right to buy from other suppliers is triggered. It does not establish an outward limit of three days for Mountain Pure to cure before Affiliated can be released from a long-term supply agreement that was inextricably linked to a multi-million dollar plant purchase. When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court’s duty to construe the writing according to the plain meaning of the language employed. Holytrent Props., Inc. v. Valley Park Ltd. P’ship, 71 Ark. App. 336, 32 S.W.3d 27 (2000).
Affiliated alternatively argues that “under no circumstances” can it be said that there is “no time limit” for Mountain Pure to cure, because the Uniform Commercial Code inserts a “reasonable time” provision when a contract is silent as to cure time. See Ark. Code Ann. § 4-2-609 (Repl. 2001). Affiliated insists that once Mountain Pure failed to provide adequate assurances of due performance within a reasonable time (not to exceed thirty days) the contract was repudiated by Mountain Pure, and Affiliated had no further obligation to perform under the supply agreement.
However, Affiliated underestimates the completeness of the contract into which it freely entered. The sale-linked agreement bound the parties for a limited, eight-year period and anticipates performance problems over the course of the parties’ relationship. If the problems were not resolved within three days, Affiliated was permitted to buy product from other suppliers “only so long as” Mountain Pure was in the process of curing, but no longer. Because a question of material fact remains as to whether Mountain Pure had cured the defect in its product, summary judgment was prematurely granted by the circuit court and we reverse and remand the case for trial.
Next, we turn our attention to Mountain Pure’s claim that the trial court erred by granting Stone and Consolidated summary judgment on their debt counterclaims. According to Mountain Pure, the vendors breached their contracts by providing defective goods and, therefore, Mountain Pure should be allowed to deduct its damages from any amounts it might owe them. It relies on Ark. Code Ann. § 4-2-717 (Repl. 2001), which permits a buyer, after acceptance of nonconforming goods and notification to the seller, to deduct all or any part of the damages resulting from any breach of the contract from any part of the price still due under that contract. Mountain Pure correctly maintains that, according to Ark. Code Ann. § 4-1-106(1) (Repl. 2001), this defense should be liberally applied.
We agree that in a debt-defense context, Mountain Pure was not required to prove vendor-specific damages with mathematical accuracy to defeat the vendors’ motions for summary judgment; it simply had to offer evidence that it was damaged by defects in each of the vendor’s products. Arkansas law has never required exactness of proof in determining the amount of damages. Recovery will not be denied merely because the damages are difficult to ascertain; if it is reasonably certain that some loss has occurred, it is enough that damages can be stated only approximately. Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993). Accordingly, the circuit court erred in requiring Mountain Pure to allocate an exact amount of damages to each vendor in a debt-offset context.
Also, Mountain Pure’s damage evidence created issues of fact for the jury. Evidence was presented that the boxes supplied by Stone were not scored properly; that they were not square and had inconsistent thicknesses; that they failed crush tests; that dry boxes fell apart; that the inner and outer skins of the cardboard pulled apart; that the boxes sometimes arrived damp; and that the flaps did not fold properly and were not uniform. Mountain Pure also presented testimony that some of the bottles supplied by Consolidated contained carbon specks resulting from the manufacturing process that could cause leaks; that some bottles were not trimmed properly; and that one bottle demonstrated that its mold had been out of alignment. Many of these alleged product defects were denied by the responsible vendor. Others were admitted, but the impact of the defect on Mountain Pure’s debt was disputed. Either way, a classic dispute of material fact is presented. Such disputes are to be resolved by the trier-of-fact, which in this case is a jury.
It is certainly tempting to sever the stranglehold of this Gordian knot in true Alexander the Great form with a swift slash of the summary-judgment sword. However, because this case presents many disputed issues of material fact, we must rely on the jury to untangle the knot, one strand at a time.
Reversed and remanded.
Griffen and Roaf, JJ., agree.
Portola Packaging and Mountain Pure, by joint motion, asked us to dismiss the appeal as it relates to Portola following a settlement agreement by the parties. We granted the motion on September 20,2006. A similar motion was filed on October 9,2006, asking that the appeal against Turner be dismissed. We now also grant this motion.
The legend of the Gordian knot was apdy explained by the Eighth Circuit in Prudential Insurance Co. of America v. National Park Medical Center, Inc., 154 F.3d 812, 819 n.4 (8th Cir. 1998), as follows:
Gordius, King of Phrygia, tied his chariot to a hitching post before the temple of an oracle with an intricate knot, which, it was prophesied, none but the future ruler of all Asia could untie. In the course of his conquests, Alexander the Great came to Phrygia, and, frustrated with his inability to untangle the “Gordian knot,” simply sliced through it with his sword. His subsequent success in his Asian campaign has been taken to mean that his solution to the “Gordian knot” fulfilled the prophesy. (Internal citations omitted.)
Assuming arguendo that the contract’s cure provision did not supply a remedy for chronic-performance failure (which would surely exceed a year and a half of an eight-year contract), a fact-intensive, UCC-based “reasonable assurance” repudiation inquiry could be triggered. This inquiry usually presents a question of fact — what is reasonable — which generally cannot be disposed of by summary judgment. See generally Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998).
This liberal administration of remedies was repealed by Act 856 of 2005. See Ark. Code Ann. § 4-1-106 (Supp. 2005).
It is of no import that the boxes that Mountain Pure identified in discovery as evidence proving its allegations were examined by Stone’s representative, Charles Shelton, who found them to be within specifications. Once a question of fact is properly established, a subsequent denial does not trigger an obligation to re-establish a material dispute of fact. To condone such an approach in the summary-judgment context — the last in time wins — would invite a childish denial dialogue: “did not,” “did too,” “did not — infinity.” | [
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Robert J. Gladwin, Judge.
Appellant Edward Franklin Haley appeals from the Izard County Circuit Court’s order revoking his probation. On appeal, he claims that the circuit court erred in allowing an uncounseled plea to form the sole basis for the revocation of his probation. We affirm.
Appellant pleaded guilty to sexual abuse in the first degree on August 1, 2002. He was placed on probation for sixty months. One condition of his probation was that he not commit a criminal offense punishable by imprisonment.
On or about April 22, 2005, appellant committed the crime of theft of property. Appellant, who was not represented by counsel, pleaded guilty in district court to the theft-of-property charge and was ordered to pay a fine. On May 27, 2005, the State filed a petition in circuit court for revocation against appellant based upon the theft-of-property charge.
At the hearing on the revocation petition, the circuit court heard testimony from Liz Lay, a Mountain View, Arkansas, police officer regarding the theft charge. Officer Lay testified that she had received a complaint regarding pictures of a teenage girl taken from a Wal-Mart store. Officer Lay explained that she confirmed with the store that appellant had wrongfully removed the pictures. When the officer contacted appellant, appellant stated that if he had pictures that were not his, he took them by mistake. Officer Lay further testified that when she advised appellant she would send someone to pick up the pictures, he objected, stating that some of the pictures were of a woman who knew he had taken the pictures. Officer Lay stated that she advised appellant at that time that he was not to have pictures of children. Appellant responded that the pictures were not of a child, but of a young woman. Officer Lay testified that appellant told the Wal-Mart photographer, when she asked if the pictures were of his granddaughter, that the pictures were of his helper. The pictures were subsequently retrieved from appellant, and he did not resist.
Appellant testified he would not have pleaded guilty to the theft charge had he known it would be used against him in the revocation hearing. He further testified that the prosecuting attorney told him it would be best for him to plead guilty.
By order of September 13, 2005, the circuit court found that the State proved by a preponderance of the evidence that appellant violated the terms of his probation, and appellant was sentenced to five years in the Arkansas Department of Correction. It is from this order that the appeal is taken.
In a probation-revocation hearing, the State must prove its case by a preponderance of the evidence. Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). To revoke probation or a suspension, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. § 5-4-309 (Supp. 2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Id. When appealing a revocation, the appellant has the burden of showing that the trial court’s findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).
The Arkansas Rules of Criminal Procedure require that a defendant be afforded counsel unless the judge in a misdemeanor proceeding determines that there is no possibility of imprisonment. Ark. R. Crim. P. 8.2(b) (2003). Appellant contends that even though he pleaded guilty to the theft of property misdemeanor, he did not violate the terms of his probation because he was not subject to imprisonment. He reasons that because he had not been appointed counsel, in district court he could not have been sentenced to prison under Rule 8.2(b). Further, because his probation condition only prohibited him from committing a criminal offense “punishable by imprisonment,” he remained in compliance. However, it was possible, based upon the offense of theft of property, for appellant to have been imprisoned had he competently waived counsel, or if counsel had been appointed pursuant to Rule 8.2(b). Therefore, to claim that appellant could not violate his probation by committing the offense of theft of property is incorrect.
Also, appellant claims that the circuit court based its decision to revoke solely on an uncounseled misdemeanor conviction. He argues that in Alexander v. State, 258 Ark. 633, 527 S.W.2d 927 (1975), the Arkansas Supreme Court, quoting the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25 (1972), stated that an uncounseled municipal court conviction cannot be used for the purpose of revoking a suspended sentence as the net effect thereof is “the actual deprivation of a person’s liberty” without “the guiding hand of counsel.” Alexander, 258 Ark. at 635, 527 S.W.2d at 929. However, the Arkansas Supreme Court went on to state, “Of course, this does not mean that the responsible officials cannot show that the facts giving rise to the municipal court conviction are sufficient themselves to revoke the suspended sentence.” Id. at 637, 527 S.W.2d at 930.
Here, the State presented evidence of the facts giving rise to the district court conviction sufficient to revoke the suspended sentence. This court will defer to the circuit court’s superior position in determining the credibility of the witnesses, which included both the police officer and the appellant. The circuit court heard the testimony regarding the guilty plea, along with the testimony that led to appellant’s arrest for theft of property. There was evidence before the circuit court that appellant, a registered level-three sex offender, took photographs of a teenage girl from a Wal-Mart store. The circuit court also heard evidence that appellant had seen the pictures at the store and told the Wal-Mart photographer that they were of appellant’s helper who had worked for him earlier that morning. Therefore, we cannot say the circuit court solely relied upon the district-court judgment, and we hold that the circuit court’s findings are not clearly against the preponderance of the evidence.
Affirmed.
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Robert J. Gladwin, Judge.
The appellant Deborah Elizabeth Foster appeals from a decision of the Sebastian County Circuit Court that denied her motion for a portion of appellee Charles Ray Foster, Sr.’s military retirement finding that the issue is barred by res judicata. We affirm.
The parties were divorced September 6, 2002, by a decree granting an absolute divorce, dividing the property and debts, and granting temporary custody to appellee. No visitation or child support was awarded at that time. As stated in the decree, the trial court retained jurisdiction “of this matter and the parties to make further orders in the future as may be proper in law and equity.” By motion of June 2, 2005, appellant sought a portion of the appellee’s military retirement to which he became entitled after the decree was filed. Appellant also sought alimony from appellee. The circuit court issued an order denying the motion based upon res judicata on August 9, 2005, and this appeal followed. Appellant contends that the trial court erred in finding that res judicata barred her motion for entitlement to appellee’s military retirement.
On appeal, equity cases, such as divorces, are reviewed de novo. Adametz v. Adametz, 85 Ark. App. 401, 155 S.W.3d 695 (2004). 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; the division of property itself is also reviewed, and the same standard applies. Gray v. Gray, 352 Ark. 443, 101 S.W.3d 816 (2003). However, as stated in Office of Child Support Enforcem’t v. King, 81 Ark. App. 190, 100 S.W.3d 95 (2003), the trial judge’s conclusion of law is given no deference on appeal. If the law has been erroneously applied and the appellant has suffered prejudice, the erroneous ruling is reversed; manifestly, the trial judge does not have a better opportunity to apply the law than does the appellate court. Duchac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999).
The trial court found that the appellant’s motion was barred by res judicata. The claim preclusion aspect of res judicata forecloses relitigation in a subsequent suit when:
(1) the first suit resulted in a final judgment on the merits;
(2) the first suit was based upon proper jurisdiction;
(3) the first suit was fully contested in good faith;
(4) both suits involved the same claim or cause of actions; and
(5) both suits involved the same parties or their privies.
Linn v. NationsBank, 341 Ark. 57, 14 S.W.3d 500 (2000). The doctrine bars relitigation of claims that were actually litigated in the first suit as well as those that could have been litigated. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002).
Appellant argues that the first requirement of res judicata was not satisfied because the divorce action was not final. She claims that the decree granted only temporary custody, and therefore, a final hearing on that issue would be necessary for the order to become final and appealable. Before the matter was set for what the appellant refers to as a final hearing, appellant filed her motion for military retirement, and further asked that appellee pay her permanent alimony.
The appellant argues that an order is not final when one issue is reserved for later determination, and cites Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986). In Tapp, appellant filed an appeal after a default judgment was entered against him. The Arkansas Supreme Court held that because the claim for punitive damages was to be determined at a later proceeding, the order was not final, and therefore, not appealable. The Court stated, “If this appeal were allowed and we decided the issue on punitive damages and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice.” Tapp, at 71-72. The instant case is distinguishable from Tapp in that the division of property and grant of divorce was final. Also, the circuit court in the instant case did not reserve any specific issue, instead generally retaining jurisdiction “to make further orders in the future as may be proper in law and equity.”
Collateral estoppel, or the issue preclusion aspect of res judicata, requires four elements before a determination is conclusive in a subsequent proceeding:
(1) the issue sought to be precluded must be the same as that involved in the prior litigation;
(2) that issue must have been actually litigated;
(3) the issue must have been determined by a valid and final judgment; and
(4) the determination must have been essential to the judgment.
State Office of Child Support Erforcem’t v. Willis, 347 Ark. 6, 15, 59 S.W.3d 438, 444 (2001) (citing Palmer v. Ark. Council on Econ. Educ., 344 Ark. 461, 40 S.W.3d 784 (2001); Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993); East Tex. Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 713 S.W.2d 456 (1986)).
Appellant claims that collateral estoppel, or res judicata, does not apply here because the issue of military retirement was not litigated in a prior action between the parties. She cites Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997), which was a divorce action involving the issue of paternity. In that action, the trial court ruled that res judicata did not apply when he granted the wife’s petition for paternity testing. It is important to note that the divorce action was still pending, and the parties were under a temporary order of the court when the wife filed her motion. The temporary order granted the parties joint custody, and the parties reconciled for a time after the temporary order was granted. After the wife left the state with the child, the husband obtained an emergency order granting him custody. At that point, the wife filed a motion challenging the husband’s paternity. This court ruled res judicata did not apply because the case was currently pending. In contrast, the divorce action herein had been concluded when the original order was entered.
In paragraph VII of the Divorce Decree, the Court awarded the property as follows:
That during the marriage of the parties, the parties acquired various items of personal property.
(A) That of such property the plaintiff shall be awarded any and all property now in his possession.
(B) That of such property the defendant shall be awarded any and all property now in her possession.
The decree further states in pertinent part as follows:
IT IS, THEREFORE, ORDERED, ADJUDGED, AND DECREED that the plaintiff, Charles Ray Foster, Sr., be and he is hereby awarded an absolute divorce from the defendant, Deborah Elizabeth Foster, on the grounds of eighteen (18) months separation as to afford the plaintiff grounds for absolute divorce under the laws of the State of Arkansas; and, further, the bonds of matrimony heretofore existing between the plaintiff and the defendant are hereby dissolved, set aside, and held for naught, and both parties are released from the same.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the parties shall be awarded such property as is specified in paragraph VII and shall be responsible for such debts as are specified in paragraph VIII above.
In Jones v. Jones, 26 Ark. App. 1, 759 S.W.2d 42 (1988), this court held that Ark. Code Ann. § 9-12-315 (1987) did not authorize a division of marital property after the divorce decree has been entered, in the absence of fraud or other grounds for relief from the original judgment, stating:
As we have noted our statute requires that marital property be divided at the time the divorce is granted. On the basis of this statutory requirement we have held that failure to assert rights in a retirement fund in the divorce action, or to appeal from the trial court’s failure to effect the statutorily mandated property division in the divorce decree, results in a waiver of the party’s rights to the property where the asserted property interest is based solely on the marital relationship.
26 Ark. App. at 6, 759 S.W.2d at 45 (citing Mitchell v. Meisch, 22 Ark. App. 264, 739 S.W.2d 170 (1987)). Based upon the language of the decree, the parties were absolutely divorced, and their property was divided in a final manner. Therefore, res judicata is applicable because the division of military retirement could have been litigated at the divorce hearing. The trial court’s reservation of jurisdiction clearly relates to further orders regarding child custody, or those matters conditioned upon changes in circumstances after the decree. The time to appeal any matters regarding the divorce or property division began to run after the divorce decree was filed on September 6, 2002.
Appellee points out that appellant never raised the issue of military retirement in her answer or in her counterclaim for divorce. Further, no evidence was presented to the trial court regarding the amount of military retirement to which appellant claimed to be entitled, or whether appellee was entitled to military retirement at the time of the divorce. Appellee claims that he was not entitled to his retirement at the time of the divorce, and therefore, appellant is not entitled to any portion of it. Holloway v. Holloway, 70 Ark. App. 240, 16 S.W.3d 302 (2000). However, this Court does not reach those issues, as res judicata prevents the necessity of reviewing them.
Affirmed.
Pittman, C.J., and Glover, J., agree.
The issue of alimony was not brought before the circuit court at the hearing held on June 20, 2005, nor was the issue briefed along with the issue of military retirement for the circuit court. However, it was part of the motion that the court held was barred by res judicata, and was therefore addressed by the trial court. | [
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Olly Neal, Judge.
Appellant, Benjamin C. Duke, was convicted of battery in the second degree stemming from a dog attack involving his pit bulldogs. He was sentenced to three years in the Arkansas Department of Correction. On appeal, he alleges the evidence was insufficient to support his conviction. We affirm.
On June 27, 2000, the victim, Matt Schnider, was walking along Blaney Hill Road when a dog approached him from appellant’s yard. The victim paused, and as he went to walk on the other side of the road, several other dogs came from appellant’s yard and started barking at him. As the victim began to back away the dogs ran up and started biting him on his legs, arms, and back. He sought refuge in an old truck parked along the side of the road. As he climbed in the truck, a black and white dog bit him on the leg. Once in the truck, the victim managed to flag down a passing motorist who took him to his sister’s house and then to the hospital. After undergoing surgery, the victim talked to Lieutenant Bill Milburn and Detective Chuck Townsend of the Conway Police Department. As a result of the attack, appellant was charged with battery in the second degree.
•At appellant’s April 25, 2001, trial, the victim described the incident as follows:
On June 27th of2000, I was walking down the road and saw a dog come from [appellant’s house]. I was going to a [friend’s] house and had to walk by the [appellant’s], I stopped as the dog looked at me and began walking on the other side of the road. When the dogs came from his yard they stopped and started barking at me. I started to walk backwards and then turned forward again. The dogs ran up to me and started biting me. I fell into the bushes on the other side of the road. The dogs were biting me on my legs, arm, and back. I couldn’t feel anything at the time. I felt like I was going to die. I was in the ditch near bushes and they were still biting me.
I began to move toward the truck but was pushed to the other side of the road. I was trying to get them off so I could get to the truck and one dog began to get the others off of me. A black and white one bit my leg and held on until I got to the truck. I got to the truck and slammed the door on the dog’s head a couple of times. I had trouble getting to the truck because the dogs kept jumping on me, holding on to me and pushing me to the ground. I do not know how many times I was bitten. I bled a lot.
When I got into the truck, I was hurting a lot. I started taking paper that was in the truck and covered my wounds so I wouldn’t bleed as bad.
During his testimony, he was shown photographs of appellant’s dogs. From the photos he identified the dogs involved in the attack. He described the first dog that approached him as brown. The victim stated that he is now afraid of dogs and that he is undergoing counseling. As a result of the attack, the victim stated that he has scars on his arms, legs, and back and that the scars sometimes bother him.
Lieutenant Bill Milburn also testified. He stated that when he arrived at the emergency room he took pictures of the victim’s injuries. The photos were admitted into evidence. Milburn described the victim as looking “chewed up or mauled.” After talking to the victim, Milburn went to the scene of the attack. He stated that he noticed fresh blood in the middle of the road. He followed a trail of blood over to the side of the road where the truck was parked. Milburn saw blood and flesh on the outside of the door and on the floor of the truck. Milburn also noticed prints on the outside of the door.
While at the scene, Milburn stated that he saw appellant trying to catch two dogs that were loose in his yard. He described one of the dogs as a brindle-colored dog. Appellant managed to pen the other dog, a mixed breed, only to have it jump out of the pen and run off. Milburn stated that he found several pit bulls at appellant’s residence and that a white pit bull had fresh wounds on its head. Milburn testified that appellant told him the dogs had “pinned” a neighbor the day before. Milburn stated that he looked in the white dog’s mouth and found no evidence of the attack. He believed that the color of the other dogs may have camouflaged any injuries, so he did not inspect them.
Milburn testified that his investigation focused on the area near appellant’s home, and that there were no other dogs in the area. Milburn said he drove through the area on several occasions looking for other dogs and that he never saw dogs running loose.
Detective Chuck Townsend testified that he spoke with the victim and received an account of what happened. Townsend stated that the victim told him four dogs were involved in the attack, a brown pit bull, a white pit bull, a black and white pit bull and a light brown mixed breed. Townsend also stated that the white pit bull was sacrificed for rabies testing and that the results were negative. Townsend, stated that appellant asserted that the dogs involved were not his because, if they had been, the victim would not have lived.
Townsend stated that he did not consider any dogs other than appellant’s because the victim indicated that the dogs had come from appellant’s yard. Townsend also stated that he questioned appellant’s neighbors about stray dogs in the neighborhood. Appellant’s neighbors informed Townsend that appellant’s dogs were often loose, but they had also seen other stray dogs.
Townsend further testified that when he went to appellant’s house to pick up two dogs, he discovered that appellant had disappeared with one of the dogs. Appellant had fled to Missouri with the dog; however, he eventually turned the dog over.
Mark Roberts, age twelve, testified that he lived near appellant and that he would go by his house two to three times a week. Roberts also testified that he has had encounters with appellant’s dogs. He stated that when he would ride his bike past appellant’s house, the dogs would come after him growling and harking. Sometimes appellant would be there and he would call the dogs back. Roberts described the dogs as pit bulls. He stated that the dogs would always come from appellant’s house. Although the dogs never bit him, Roberts stated that he is afraid of them.
Patrick Worm, age fourteen, testified that he used to live by appellant and his dogs “would get after him.” On one occasion, the brown and white pit bull came running after him while he was on his bike. Worm stated that he jumped off his bike and hit the dog with a rock before getting back on his bike and riding off.
Danny Carter, appellant’s next-door neighbor, testified that around midnight on May 19th or 20th, 2000, two pit bulls came over and started “barking and snapping” at him while he was sitting in his front yard. Carter stated that he called out to appellant’s family to come get the dogs. As he walked toward appellant’s house, one of the dogs bit him on the back of the legs. Carter stated that he reported the incident to the police. Carter further testified that a week later, two white pit bulls came into his yard and began “snapping and barking” at him. When he tried to go into his house, the dogs would try to bite the back of his legs. Carter stated that he has seen appellant’s dogs running loose and that they would get into the trash and eat his dog’s food. Carter also stated that the dogs bit his German Shepherd and that his dog later died.
Janette Daniel, an animal-control officer, testified that animal control had contact with appellant at his old residence, located at 1720 Highway 64 West, on several occasions. The address was a regular stopping place due to the number of calls about appellant’s pit bulls running loose. Daniel stated that on one occasion the brindle pit bull chased a man into a nearby business. She stated that the dog was growling and trying to bite the man. Daniel testified that on June 27, when she arrived at the scene, there was blood on the front steps of the house. While there, the white pit bull came running into the yard. Daniel stated that she was unaware appellant had moved to Blaney Hill Road because she had received no calls about the dogs being loose in the area.
Dr. Timothy Callicott, an emergency-room physician, testified that he treated the victim on June 27th. He stated that the victim had forty to sixty wounds varying from small punctures to deep muscle lacerations. Callicott described the victim as scared, upset, and in pain. He explained that in order for a laceration to reach the muscle, it must be one-half to three-quarters of an inch deep. Callicott stated that he was unable to close the wounds in the emergency room, so a surgeon had to be called in to close some of the wounds. He explained that in a normal situation the wounds would be closed in the emergency room. Callicott further explained that a surgeon was required due to the number of wounds and their depth. Callicott also testified that the wounds appeared to be animal bites. Callicott stated that the most serious wounds were on the victim’s lower legs and that there were also wounds on his lower back and arms.
Sheldon Cain testified for the defense. He testified that he lived near appellant and that on June 27th, he passed appellant’s house while going to work. Cain stated that he saw several dogs in the area including a German Shepard and a beagle. Cain also stated that it was common to see dogs running loose in the neighborhood. Cain further testified that he has been around appellant’s dogs before. He described the dogs as being nonaggressive, but territorial. He also stated that the dogs were allowed to run loose most of the time. Cain admitted that on one occasion the dogs charged at him when he came over to visit appellant.
Appellant admitted owning five pit bulls, a brindle bull dog, a black bull dog, a white bull dog with brown markings, a buck-skin bull dog with a black mask and a solid white bull dog. He testified that the dogs provided security on his property. He stated that he left home on the 27th at around nine and returned around twelve. He stated that when he left, most of the dogs were secure. He also stated that he showed everyone at the scene that his dogs did not have blood on them. Appellant explained that the wound on the head of the white pit bull was from the dog scratching itself. He denied washing the blood off the dogs. Appellant also stated that he had never seen his dogs bite anyone, but he had seen them growl and bark. Appellant testified that he had never seen the dogs act aggressively toward the neighborhood kids. Appellant also denied using the dogs for fighting. During his testimony, appellant accused Officer Milburn of lying about his dogs “pinning” a neighbor the day before the attack. Although he never was told how much blood was on the porch, appellant stated that the blood was from a dog tick. He also denied any knowledge of his dogs biting Carter. Appellant stated that when he arrived home, he parked across the road in front of the truck and that he never saw any blood on the road. He further stated that he never saw any bits of flesh in the blood spots. Appellant also denied saying “if they were my dogs, the boy would be dead, and would have never gotten away.”
At the conclusion of the State’s case and again at the close of all the evidence, appellant made a motion for directed verdict. He alleged that the State failed to prove he recklessly caused a serious physical injury to another person by means of a deadly weapon. He also alleged there was no evidence that the victim faced a substantial risk of death, nor was there evidence that the dogs were a deadly weapon. The court denied the motions.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State, and consider only that evidence which supports the verdict. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. This court does not, however, weigh the evidence presented at trial, as this is a matter for the fact-finder. Id. Nor will this court weigh the credibility of the witnesses. Id.
Appellant argues there was insufficient evidence to support the jury’s determination that he committed battery in the second degree. We disagree. A person commits battery in the second degree if he “recklessly causes serious physical injury to another person by means of a deadly weapon.” Ark. Code Ann. § 5-13-202 (Supp. 2001).
Appellant first asserts that the State failed to prove that he acted recklessly. A person acts recklessly “when he consciously disregards a substantial and unjustifiable risk that the circumstances exist or 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 actor’s situation.” Ark. Code Ann. § 5-2-202(3) (R.epl. 1997).
The evidence elicited at trial clearly shows that appellant acted recklessly. There was evidence that appellant knew his dogs had “pinned” a neighbor the day before the attack. The dogs also had a history of attacking without provocation. Accordingly, we hold that there was substantial evidence that appellant acted recklessly.
Appellant next asserts that the State failed to show that the victim sustained a serious physical injury. Serious physical injury is defined as “physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss protracted impairment of the function of any bodily member or organ.” Ark. Code Ann. § 5-1-102(19) (Supp. 2001). Whether a victim has suffered serious physical injury is an issue for the jury to decide. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Serious physical injury has been found where the victim was struck three times with a fist, causing facial fractures and impairment of vision for about two weeks, and where the victim suffered a broken leg, fractured toe, and bruised heel and pelvis. Enoch v. State, supra.
In this case, the victim testified that he has scarring on his lower back, legs and arms. Dr. Callicott testified that the victim sustained forty to sixty wounds that varied in size and depth. Dr. Callicott explained that under normal circumstances they would close the wounds in the emergency room; however, due to the number and depth of the victim’s wounds, surgery was required. In addition, graphic photos of the victim’s wounds were admitted into evidence. We cannot say that the fact-finder could not reasonably infer from the evidence that the victim sustained a serious physical injury. We therefore conclude that substantial evidence to support the finding of a serious physical injury existed.
Appellant’s last argument is that the State failed to establish that his dogs were a deadly weapon. The concept of a dog being a deadly weapon is a novel issue in Arkansas. A deadly weapon is defined as “anything that in the manner of its use or intended use is capable of causing death or serious physical injury.” Ark. Code Ann. § 5-l-102(4)(B) (Supp. 2001). Appellant concedes that a dog can be used or made into a deadly weapon; however, he asserts that there was no evidence that he used his dogs in a manner that could be considered deadly.
Appellant testified that the dogs provided security and as such they were allowed to roam at will. While roaming, the dogs had twice bitten appellant’s next-door neighbor. The dogs have also chased a man into a nearby business. There was evidence that quite often when the dogs began to “snap and growl” at someone, they would only stop when appellant called them off. Appellant’s dogs had a history of attacking other animals in the neighborhood. The State presented evidence that the day before the attack, the dogs had “pinned” a neighbor. The State also presented evidence that appellant asserted that if his dogs were involved the victim would not have survived the attack. Further, appellant’s own witness testified that the dogs had charged him when he came to visit appellant. Based on the applicable statute, the fact-finder could reasonably infer that these dogs were used in such a manner as to constitute deadly weapons.
Viewing the evidence in a light most favorable to the State, we conclude that there was substantial evidence to support the appellant’s conviction of battery in the second degree.
Affirmed.
Hart and Bird, JJ., agree.
Townsend’s notes indicated that appellant said “If they were my dogs, the boy would be dead, he would have never gotten away.” | [
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Per Curiam.
Appellant Willie Menzies appealed to this court from an order terminating his parental rights entered by the Sixth Division Circuit Court of Jefferson County, Arkansas, and counsel was appointed to represent him. We affirmed the decision of the trial court.
Appellant’s counsel now moves for an award of attorney’s fees of $3,585.00 and expenses of $1,724.92. The expenses sought by counsel include $907.50 attributable to abstracting costs. We grant attorney’s fees to counsel for appellant in the amount of $1,400.00 and costs of $500.00.
IT IS SO ORDERED.
Griffen, J., concurs.
Pittman, C.J., Hart, Robbins, Bird, and Glover, JJ., dissent. | [
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John B. Robbins, Judge.
Appellant Thomas Hart appeals his convictions for first-degree false imprisonment and third-degree assault of a sheriff s deputy as found by the jury in Cleveland County Circuit Court. Though also charged with ter-roristic threatening of three women, he was acquitted on that count. He appeals, arguing as a single point for reversal that the trial court abused its discretion in permitting the State to question appellant’s wife about his typical behavior when under the influence of alcohol, which appellant argued was irrelevant and highly prejudicial. We affirm.
The acts for which appellant was charged arose in the context of a domestic-disturbance call. Appellant and his wife were parties to a pending divorce action. On the afternoon of June 19, 2000, appellant appeared at the marital residence, where his wife Pat was living, to retrieve personal belongings from the garage. Appellant and Pat exchanged harsh words in the yard because appellant was unhappy with the condition of his belongings, and appellant threatened her, Pat summarizing it as a threat to “kick her butt.” Pat’s mother lived on the same property in another house nearby, and she came outside to ask if she should summon the sheriff. Appellant threatened that they would all be dead by the time the sheriff arrived. He left, taking a load of belongings, and made repeat trips.
The objectionable testimony came from appellant’s wife, who stated on the stand that her husband of thirty-two years had a drinking problem. An objection as to relevancy was entered. The prosecutor and defense counsel approached the bench. The prosecutor explained that Pat’s testimony would be that he had a drinking problem and that he would get into rages while drunk. Defense counsel argued that this was highly prejudicial. The objection was overruled. Then, Pat testified that appellant was like Dr. Jekyll and Mr. Hyde; one was the nicest guy but the other was angry and agitated when under the influence of alcohol. Pat testified that when appellant arrived at the residence that afternoon he had been drinking, a fact appellant did not deny.
Later that evening at approximately 10:00 p.m., Pat, her mother, and Pat’s friend Donna were in the house that Pat’s mother occupied when Pat heard a tap at the window. Pat, fearing that appellant had a gun, screamed for them all to get down on the floor. Pat crawled to the telephone and called the sheriff. Two deputies, Marty Williams and Floyd Harper, responded to the call, but when they arrived, appellant was gone. Williams left to answer another call, while Harper remained on the premises, eventually seeing appellant drive by, whereupon, Harper followed and initiated a traffic stop.
Harper testified that after appellant pulled over, appellant exited the vehicle. Harper approached appellant at his truck, and appellant grabbed Harper’s vest and forced a gun to his ear. Harper smelled the odor of intoxicants about appellant’s person. Harper reached for appellant’s gun and simultaneously reached for his own service revolver. Harper testified that appellant told him that if he did not get his hand off his (Harper’s) gun, he would “blow my damned head off.” Harper stated that appellant attempted to take Harper’s service revolver, and they struggled for control. Hearing the radio dispatch from Harper’s vehicle, appellant told Harper that if another officer came, he was going to blow Harper’s head off. Appellant told Harper to lay down on the pavement, but Harper refused. Appellant then told Harper that when another officer arrived, “you’re dead.”
Williams had been recalled as backup to Harper, and when Williams arrived, he observed appellant holding Harper at gunpoint and heard appellant threatening to kill Harper. Williams retreated and watched the two from a distance. Appellant told Harper that he wanted Harper to get Pat to stop harassing him. Harper tried to calm appellant, assuring him that he would go talk to her. Thereafter, appellant released Harper, got into his vehicle, and drove away, purportedly to his mother’s house to await information. The deputies followed his vehicle and eventually pulled him over again, arresting appellant without serious incident in the second stop.
Chief Deputy Rodgers assisted in the arrest of appellant, and Rodgers testified that appellant had to be removed from his vehicle; that he possessed fourteen 380 hollow-point shells in his pocket; that his vehicle contained a holster, more ammunition, and a half-full vodka bottle; that he was not cooperative; and that he was very intoxicated. Williams testified that appellant’s driving indicated impairment and that he could barely walk when he was brought to the sheriffs office due to intoxication; appellant continued to threaten to kill the officers as he was placed in a cell.
Appellant’s testimony as to the encounters with law enforcement differed sharply. Appellant stated that in the first stop, the officer told him to leave the county and not to come back. Appellant denied ever holding a gun to the deputy’s head. Appellant stated that he was upset at being stopped and challenged the officers to arrest him when he had done nothing wrong. He said that when the officers engaged blue lights the second time, he pulled over near his mother’s house, and he was arrested without incident. Appellant acknowledged that he had a drinking problem that resulted in him seeking treatment in 1994, that he remained sober from 1994-1997, but that he had some drinks since then. He did not deny drinking about a pint of liquor the night he was arrested. He also agreed that his wife knew the signs of his drinking and that he sometimes became belligerent.
Appellant argues on appeal, as he did at trial, that the admission of his wife’s opinion about his prior drinking was not relevant to the issues on trial and that if relevant, the relevance was outweighed by its unfair prejudice. Appellant concedes that his intoxication on the night in question was relevant. Appellant also argues that this was impermissible evidence of prior bad acts as prohibited by Ark. R. Evid. 404(b), but he did not raise this objection at trial. Because appellant’s arguments are confined to the objections raised to the trial court, we do not consider this aspect of his appellate argument. See Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998).
“Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401. A decision whether to admit relevant evidence rests in the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403 (1999); Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991).
Appellant states that permitting irrelevant and unduly prejudicial evidence of his drinking problem and associated behavior to the jury tainted appellant’s credibility and mandates that we reverse. We disagree. First, the testimony regarding appellant’s, drinking problem and his typical-behavior after having consumed alcohol was relevant to the issues at trial. He was undisputedly drunk that night, and Pat’s testimony was probative of whether it was more or less likely that appellant would have behaved in a belligerent or angry manner toward the deputy while inebriated. Arkansas Rule of Evidence 403 provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The balancing mandated by Rule 403 is a matter left to a trial court’s sound discretion, and we will not reverse absent a showing of manifest abuse. Mixon v. State, 330 Ark. 171, 954 S.W.2d 214 (1997). There was no such manifest abuse of discretion here, for the most obvious reason that appellant cannot demonstrate prejudice. He cannot make such a showing in light of the fact that appellant testified after his wife completed her testimony and admitted that he was drinking that night, that his wife correctly stated that she knew the signs of his drinking, and that he sometimes became belligerent. Nothing in Pat’s testimony varied from appellant’s own on this topic. See Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Brown v. State, 66 Ark. App. 215, 991 S.W.2d 137 (1999). See also 1 John W. Strong, McCormick on Evidence § 55, at 246 (5th ed.1999) (“If a party who has objected to evidence of a fact himself produces evidence from his own witness of the same fact, he has waived his objection”).
Affirmed.
Jennings and Crabtree, JJ., agree. | [
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John B. Robbins, Judge.
Appellant Jeffrey King entered a conditional plea of guilty to the crime of possession of methamphetamine with intent to deliver, subsequent to a search of his person that revealed 3.191 grams of methamphetamine. He was sentenced to ten years in prison, a $150 fine, and a six-month driver’s license suspension. Appellant reserved his right to appeal the denial of his motion to suppress pursuant to Ark. R. Crim. P. 24.3(b) (2001). We affirm the denial of his motion to suppress.
On appeal from a trial court’s ruling on a motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses only if the trial court’s ruling was clearly against the preponderance of the evidence. State v. Blevins, 304 Ark. 388, 802 S.W.2d 465 (1991); Edwards v. State, 300 Ark. 4, 775 S.W.2d 900 (1989). Deference is given to the superior position of the trial judge on issues of the credibility of witnesses. Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). As the United States Supreme Court has indicated, the Fourth Amendment does not forbid all searches and seizures but only “unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968). Freely given consent to search must be proven by clear and convincing evidence. Norris v. State, 338 Ark. 397, 993 S.W.2d 918 (1999).
The facts as developed before the White County Circuit Court at the suppression hearing were that on May 8, 2000, at approximately 1:00 a.m., police officers from the city of Bradford, Arkansas, were looking for Joe Robinson, a suspect in a hit-and-run accident who had an outstanding felony warrant. Robinson was observed running toward appellant’s trailer from an abandoned house, and officers approached the trailer, seeing fresh footprints in the dew on the wooden steps leading up to the trailer door. Appellant answered their knocks at the door and granted consent for the officers to look for Robinson in his trailer. At no time did appellant contest that he granted the officers permission to look for this man inside his trailer. Investigator Hydron, from the White County Sheriffs Office, was present in the house.
The other officers went in search of Robinson while Hydron stayed with appellant. While talking to appellant about Robinson and Robinson’s whereabouts, Hydron thought that appellant was acting nervous. The police had previously received information, which was relayed to Hydron, that appellant and Vickie Sterling were selling methamphetamine from the trailer. Hydron repeatedly asked appellant to take his hands out of his pockets, which appellant finally did. However, appellant was fidgeting, he would cross his arms, and then his hand would return to his right front pocket. Due to appellant’s behavior, Hydron recited the Miranda rights to appellant and then asked if he understood his rights, and appellant said that he did. After being Mirandized, appellant was asked if Robinson was hiding in the trailer, to which appellant replied that he had not seen Robinson in two or three days. Hydron then asked appellant if he had “any meth, guns, or whatever” in his pockets, and appellant replied that he had “a little meth.” Hydron asked if appellant wanted to get it or if appellant wanted Hydron to get it. Appellant raised his arms and told Hydron to get it. Methamphetamine was found in appellant’s right front pants pocket, and appellant was arrested. A motion to suppress followed, and a hearing on this motion was held.
The trial judge found that appellant voluntarily consented to the officers’ entry into his home, that the officers were entitled to ask for cooperation in their search for Robinson, that the officers’ opinion of appellant’s nervousness and appellant’s resistance to keeping his hands out of his pockets in contravention of a direction by the officer was credible, that Hydron administered Miranda warnings, and that appellant voluntarily admitted to possessing methamphetamine leading to his arrest. The trial court determined that appellant was not seized pursuant to reasonable suspicion of crime under Ark. R. Crim. P. 3.1. Based upon this assessment of the facts, the trial judge denied the motion to suppress the methamphetamine.
Appellant concedes, as he did at the suppression hearing, that he granted consent to the officers to enter the trailer and look for Robinson. Thus, the initial encounter was lawful. Appellant’s argument is that the investigator exceeded the scope of that consent when he began questioning appellant about possessing drugs or guns. More specifically, appellant argues that his constitutional rights were violated by the officers “wrongfully detaining him, by placing him in custody with no just or probable cause, by exceeding the scope of their authority to search, by refusing to leave his residence when consent to search was withdrawn, and by willfully violating his right to privacy.” He argues primarily that the search violated Ark. R. Crim. P. 3.1. He also argues that the search violated Ark. R. Crim. P. 11.3 and 11.5, which govern the scope of consent and withdrawal of consent.
The State responds that consent to enter the residence is irrelevant because, pursuant to Ark. R. Crim. P. 2.2 (2001), a law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The State argues alternatively that if appellant was seized, this seizure was permissible because of appellant’s suspicious behavior, which gave rise to reasonable suspicion that appellant was committing a felony pursuant to Ark. R. Crim. P. 3.1. The State notes that the demeanor of a suspect and the suspect’s apparent effort to conceal an article are factors to be considered in determining whether an officer has a reasonable suspicion. Ark. Code Ann. § 16-81-203 (1987).
We agree with appellant that there were insufficient facts upon which to form a reasonable suspicion that appellant had committed or was about to commit a crime in order to validate the interaction under Ark. R. Crim. P. 3.1. Instead, the resolution of the present appeal requires that we address the extent of permissible interruption that a citizen must bear to accommodate a law officer who is investigating a crime under Ark. R. Crim. P. 2.2. In Baxter v. State, 274 Ark. 539, 543, 626 S.W.2d 935, 937 (1982), our supreme court stated:
The practical necessities of law enforcement and the obvious fact that any person in society may approach any other person for purposes of requesting information make it clear the police have authority to approach civilians.
There is nothing in the Constitution which prevents the police from addressing questions to any individual. However, the approach of a citizen pursuant to 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 per sonal freedom. To be considered are the manner and intensity of the interference, the gravity of the crime involved, and the circumstances attending the encounter. (Citations omitted.)
See also Blakemore v. State, 25 Ark. App. 335, 758 S.W.2d 425 (1988); McDaniel v. State, 20 Ark. App. 201, 726 S.W.2d 688 (1987). An encounter under Ark. R. Crim. P. 2.2 is permissible only if the information or cooperation sought is in aid of an investigation or the prevention of a particular crime. Hammons v. State, 327 Ark. 520, 940 S.W.2d 424 (1997); State v. McFadden, 327 Ark. 16, 938 S.W.2d 797 (1997); Thompson v. State, 303 Ark. 407, 797 S.W.2d 450 (1990); Baxter v. State, supra; Meadows v. State, 296 Ark. 380, 602 S.W.2d 636 (1980). The officer undeniably thought that Robinson was hiding in appellant’s trailer, and it was for this reason that the officers approached appellant in the first place. Not all personal intercourse between police officers and citizens involves “seizures” of persons under the Fourth Amendment. See Terry v. Ohio, 392 U.S. 1 (1968). A “seizure” occurs when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. Id.
It has been held that in the context of consensual public encounters, even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, ask to examine identification, and request consent to search, provided they do not convey a message that compliance with their requests is required. See Florida v. Bostick, 501 U.S. 429 (1991). In the present appeal, Hydron made it clear that appellant did not have to answer any further queries when he orally rendered Miranda warnings to appellant. Thereafter, appellant answered one question about Robinson and voluntarily responded to a question about possession of drugs. Appellant’s freely given statement in which he admitted to having “a litde meth” created probable cause to seize the contraband and arrest appellant.
After reviewing the totality of the circumstances presented by these unique facts, we cannot say that the trial court’s denial of appellant’s motion to suppress was clearly erroneous.
Affirmed.
Crabtree, J., agrees.
Roaf, J., concurs.
Arkansas Rule of Criminal Procedure 3.1 (2001) provides:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense.
For example, m Hammons v. State, supra, the supreme court held that it was permissible under Rule 2.2 for an officer to approach the driver of a parked car in the course of investigating a tip from a confidential informant that the driver of a black Corvette was selling drugs behind the Old Town Tavern. Likewise, in Baxter v. State, supra, the supreme court held that an officer had not violated Rule 2.2 when he asked a driver about a theft from a nearby jewelry store that occurred only ten minutes earlier. In both of these cases, the initial encounter, which was not a seizure under the Fourth Amendment, was permissible under Ark. R. Crim. P. 2.2 because the officer was seeking assistance in the investigation of a particular crime. | [
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Terry Crabtree, Judge.
This is an insurance-coverage case. Appellant Len Carver is the owner of a home in Little Rock. In November 2000, appellant’s home was covered by a “Deluxe Homeowner’s Policy” issued by appellee, Allstate Insurance Company '(Allstate). On November 21, 2000, a portion of a Little Rock Municipal Water Works water main burst adjacent to appellant’s property. Water from the burst main flooded appellant’s home, causing the house to be moved from its foundation. Windows were broken, and the floors and the ceilings collapsed. There was also extensive damage to the roof. The home was insured for $76,000 and the garage was insured for $7,600. Appellant made a claim on the policy, which appellee denied based on exclusionary language in the policy. The language of the policy provides: “Losses we cover under Coverages A and B: We will cover sudden and accidental direct physical loss to property described . . . except as limited or excluded in this policy.” The policy then lists various exclusions as follows:
Losses we do not cover under Coverages A and B:
We do not cover loss to the property described . . . consisting of or caused by:
1. Flood, including, but not limited to surface water, waves, tidal water or overflow of any body of water, or spray from any of these, whether or not driven by wind.
2. Water or any other substance that backs up through sewers or drains.
3. Water or any other substance that overflows from a sump pump or a sump pump well. . . .
4. Water or any other substance on or below the surface of the ground, regardless of its source. This includes water or any other substance which exerts pressure on or flows, seeps, or leaks through any part of the residence premises.
Appellant filed this suit seeking payment under the policy, the twelve percent penalty, interest, and attorney fees. Appellee denied coverage in its answer. Appellee moved for summary judgment, alleging that the policy language, specifically exclusion 4, was clear and unambiguous and excluded the loss from the policy. Neither party filed any affidavits or other factual material either supporting or opposing the motion for summary judgment. Appellee did attach to its motion for summary judgment answers to interrogatories concerning the approval by the insurance commissioner of the policy language at issue. The trial court granted the appellee summary judgment. Neither the judge’s comments from the bench nor the order granting summary judgment set out the reasons for granting the motion.
Appellant raises three points on appeal: (1) the trial court erred in granting summary judgment because the exclusion relied upon does not apply under the facts of this case; (2) the trial court erred in granting summary judgment because the exclusion is ambiguous and therefore should be construed to afford coverage; (3) in. the alternative, the exclusion is overly broad, was not properly presented to the Arkansas Insurance Commission, and is against public policy. The first two points are actually the same, that is, whether the policy exclusion is ambiguous. The third point was pled and argued before the trial court. However, no specific ruling was made by the trial court. Therefore, we cannot address the issue because the failure to secure a ruling constitutes a waiver of the issue, precluding its consideration on appeal. Jones v. Ellison, 70 Ark. App. 162, 15 S.W.3d 710 (2000). We affirm.
Summary judgment is a remedy that should be granted only when there are no genuine issues of fact to litigate and when the case can be decided as a matter of law. Birchfield v. Nationwide Ins., 317 Ark. 38, 875 S.W.2d 502 (1994). Once the movant has made a prima facie showing of entitlement to summary judgment, the responding party must demonstrate that there remain genuine issues of material fact to preclude a summary judgment. Our review is limited to a determination as to whether the trial court was correct in finding that no material facts were disputed. Wright v. Compton, Prewitt, Thomas & Hickey, P.A., 315 Ark. 213, 866 S.W.2d 387 (1993).
When the terms of a written contract are ambiguous, the meaning of the contract becomes a question of fact. Stacy v. Williams, 38 Ark. App. 192, 834 S.W.2d 156 (1992). In order to be ambiguous, a term in an insurance policy must be susceptible to more than one equally reasonable construction. State Farm Fire & Cas. Co. v. Amos, 32 Ark. App. 164, 798 S.W.2d 440 (1990); Watts v. Life Ins. Co. of Ark., 30 Ark. App. 39, 782 S.W.2d 47 (1990); Wilson v. Countryside Cas. Co., 5 Ark. App. 202, 634 S.W.2d 398 (1982). On motion for summary judgment, the court, viewing the evidence in the light most favorable to the nonmoving party, ascertains the plain and ordinary meaning of the language in the written instrument, and if there is any doubt about the meaning, there is an issue of fact to be litigated. Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark. App. 226, 821 S.W.2d 59 (1991). When the intent of the parties as to the meaning of a contract is in issue, summary judgment is particularly inappropriate. Camp v. Elmore, 271 Ark. 407, 609 S.W.2d 86 (Ark. App. 1980).
Under Arkansas law, the intent to exclude coverage in an insurance policy should be expressed in clear and unambiguous language, and an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer. Nationwide Mut. Ins. Co. v. Worthey, 314 Ark. 185, 861 S.W.2d 307 (1993); Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 652 S.W.2d 635 (1983). If the language in a policy is ambiguous, or there is doubt or uncertainty as to its meaning and it is fairly susceptible of two or more interpretations — one favorable to the insured and the other favorable to the insurer — the one favorable to the insured will be adopted. Nationwide Mut. Ins. Co. v. Worthey, supra; Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 588 S.W.2d 419 (1979); McGarrah v. Southwestern Glass Co., 41 Ark. App. 215, 852 S.W.2d 328 (1993); Pizza Hut of Am., Inc. v. West Gen. Ins. Co., 36 Ark. App. 16, 816 S.W.2d 638 (1991).
When contractual language is unambiguous, however, its construction is a question of law for the court. Moore v. Columbia Mut. Cas. Ins. Co., supra. If the language is not ambiguous, it is unnecessary to resort to the rules of construction. Birchfield v. Nationwide Ins., supra. When the language is clear, it must be given its plain and obvious meaning and should not .be interpreted to bind an insurer to a risk which it plainly excluded'and for which a premium was not collected. General Agents Ins. Co. of Am. v. People’s Bank & Trust Co., 42 Ark. App. 95, 854 S.W.2d 368 (1993); Baskette v. Union Lfe Ins. Co., supra.
It is the appellant’s position with respect to exclusion 4 that water below the surface of the ground, under proper rules of construction, means water that is defined as ground water. Appellant, citing Ebbing v. State Farm Fire & Cas. Co., 61 Ark. App. 381, 1 S.W.3d 459 (1999), argues that courts that have considered insurance coverage for damage caused by burst water mains have “generally” held that there is coverage. In Ebbing, a claim for water damage as a result of a water main that burst and ran through the home was denied by State Farm on the basis of the following exclusion: “(C) Water damage, meaning: (1) flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, all whether driven by wind or not. . . Id. at 385, 1 S.W.3d at 461. This court reversed, holding that the terms “flood” and “surface water” in an insurance policy exclusion did not include water from a burst water main because those terms contemplated water from natural causes or sources.
We find Ebbing to be distinguishable. The exclusion in Ebbing is almost identical to exclusion 1 in the policy at issue in the present case. Appellee did not, however, deny coverage based upon exclusion 1. Rather, appellee denied coverage based on exclusion 4. That exclusion states “water or any other substance on or below the surface of the ground, regardless of its source. This includes water or any other substance which exerts pressure on or flows, seeps or leaks through any part of the residence premises.” When the exclusion is read as a part of the contract its plain meaning is to limit the coverage that might otherwise fall within the policy language. Where the language is unambiguous, as here, summary judgment is an appropriate method to resolve issues of contract construction. Moore v. Columbia Mut. Cas. Ins. Co., supra.
Appellant also argues that exclusion 4 does not apply because the water from the broken main formed a geyser, which actually caused the damage, and that the geyser was not “water . . . on or below the surface ...” because it was water above the surface. Here, the water from the broken water line was still “water below the surface of the ground” within the meaning of the exclusion because it originated underground. We find nothing in the exclusion to support the conclusion that it is limited only to naturally occurring water or ground water. The exclusion clearly and unambiguously indicates that damage from any water on or below the surface which flows into the premises is not covered by the policy, regardless of whether the source is natural or artificial. Buttelworth v. Westfield Ins. Co., 41 Ohio App. 3d 288, 535 N.E.2d 320 (1987).
In conclusion, we hold that the trial court did not err in entering summary judgment for the appellee in this case.
Affirmed.
Jennings and Robbins, JJ., agree. | [
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Sam Bird, Judge.
James E. Brown was charged in the Poinsett County Circuit Court with second-degree sexual assault for, on or about March 26, 2003, engaging in sexual contact with the sex organs of a seven-year-old girl. On April 28, 2005, Brown was convicted by a jury and was sentenced to five years’ imprisonment in the Arkansas Department of Correction. He raises one point on appeal, contending that the trial court abused its discretion in allowing into evidence the victim’s videotaped statement to police. We affirm the conviction.
K.H., the victim of the sexual assault, was Brown’s niece by marriage. The State’s witnesses at trial on April 27 and 28, 2005, included K.H., who was then nine years old; her parents; Detective Mark McDougal of the West Memphis Police Department, a criminal investigator who interviewed K.H. and executed a search warrant of Brown’s residence; Gary Gray, an Arkansas State Police criminal investigator who executed the search warrant with Mc-Dougal and conducted an interview of Brown; and Leann Vana-man, a supervisor in the state police Division of Crimes Against Children. Also introduced into evidence, despite Brown’s objection, was a videotape ofMcDougal’s interview with K.H. The tape was introduced through McDougal when the State recalled him after Vanaman testified.
The testimony of K.H. and her parents established that she lived with her family in West Memphis but frequently visited her aunt and uncle (appellant Brown) in Marked Tree. Their testimony also established that the criminal investigation of Brown ensued after K.H.’s parents became alarmed about comments she made concerning physical attributes of toy ponies she had received for her seventh birthday.
K.H. testified in part, marking on diagrams and using slang terms that she said she had learned from Brown, that he touched her private parts and taught her how to masturbate him until he ejaculated. She said that he touched her when she was in bed with her aunt, that the masturbation happened “lots of times” under her uncle’s desk, and that it happened once when she and her uncle were in a vehicle in a parking lot while her aunt was inside a store. She said that she and Brown watched television and the computer — seeing on a bed two men and a girl who acted like she was going to take off her panties, and seeing a man with a camera who took pictures of men and women together. She testified that Brown told her that, when she got older, they would do the things that were on the television and the computer.
Supervisor Leann Vanaman testified that she visited the prosecutor’s office sometime after November 25, 2003, with the purpose of showing personnel there K.H.’s videotaped interview with Detective McDougal. Vanaman described the interview as “compelling.” McDougal, who had testified earlier in the trial, was recalled. He testified that seventy-three video tapes, all containing graphic sexual conduct of adults, were taken from Brown’s home during execution of the search warrant. McDougal admitted that he had been unable to find a photograph of Brown’s penis and nude pictures of K.H., items that she had told McDougal about.
The prosecutor, arguing that there were inconsistencies between K.H.’s trial testimony and previous videotaped statement to McDougal, requested a hearing under Arkansas Rule of Evidence 803(25) to determine whether the videotape of the interview could be played. Rule 803, entitled Hearsay Exceptions— Availibility of Declarant Immaterial, includes the following:
(25) Child Hearsay When Declarant Is Available at Trial and Subject to Cross-Examination. A statement made by a child under the age often (10) years concerning any type of sexual offense, or attempted sexual offense, with, on, or against that child, which is inconsistent with the child’s testimony and offered in a criminal proceeding, provided:
(A) The trial court conducts a hearing outside the presence of the jury and finds that the statement offered possesses a reasonable guarantee of trustworthiness considering the competency of the child both at the time of the out of court statement and at the time of the testimony.
(B) The proponent of the statement gives the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
(C) This section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable rule of evidence.
In the present case, the court conducted an in camera hearing. The prosecutor asserted that K.H.’s videotaped, out-of-court statement should be admitted into evidence because “Rule 803(25) allows such a statement into evidence when the declarant is available at trial and subject to cross examination.” The following arguments transpired during the hearing:
Defense Counsel: This is an adversarial proceeding. I cross-examine the witness and, invariably, things sometimes change. What this Rule is designed for is not that but the situation where a person completely forgets and there is no proof whatever. That is not the case here.
Prosecutor: That is a misstatement of the Rules, Your Honor. When the declarant is available, you don’t look to any other factors other than the ones outline [d] in this Rule. We are not asking that this statement be admitted because the witness is unavailable. We are asking that it be admitted because the witness is available to cross-examination under this Rule.
Trial Court: I have watched this tape and I think the Rule addresses situations just like this one. I am going to allow it to be shown to the jury.
Defense Counsel: Your Honor, this was done by a police officer and the witness was not subject to cross-examination. There are no guarantees of trustworthiness with this statement. That is the whole reason for the adversarial procedure and the confrontation clause. Why is this video tape more reliable than what she said today? [K.H.] was not scared when she testified. She gave testimony like a champ.
Prosecutor: The question is whether the statement has sufficient indicia of reliability to meet constitutional muster. As the Court recalls from viewing the tape, there was nothing about the way the interview was conducted that shows there was any influence or words put into [K.H.]’s mouth.
Defense Counsel: If this were a business record, or something like that, it would be one thing, but this is a one-sided interview by a police officer who is trying to get charges filed and the purported victim. That is the reason in itself for the confrontation clause in the Constitution. Cross-examination of this statement cannot occur and it is particularly harmful to the defense because of the age of the case. The Prosecutor will want to go back at the end of the case and argue that, [K.H.] said it back then and she said it today. This will be bolstering the State’s case. Actually, this will be more than bolstering her case, this will be her case.
Prosecutor: The Rule only requires an inconsistency with a prior case and it is limited to children under the age of ten in sexual offenses. There is a two year gap between the trial and this event, and this is a seven and now nine year old. That is exactly the scenario and why this hearsay exception is there.
Trial Court: I agree. Proceed.
(Emphasis added.)
The videotape was admitted into evidence and was played for the jury. K.H.’s statements to Detective McDougal in the videotaped interview were more detailed and graphic than her trial testimony had been. She said that Brown penetrated her with his finger, and she described the process of physically assisting him until he masturbated. Using slang for body parts, she stated that Brown attempted to put his penis “up in” her, that it happened lots of times, that they watched acts of oral sex and sexual intercourse on the computer, that he took one picture of her wearing only her underwear and one with no clothes, and that he told her that when she was older — ten or eleven or twelve — he would put his penis in her vagina.
Defense counsel again protested when the playing of the tape was over, objecting that he could not “cross-examine the tape.” The prosecution replied that counsel could cross-examine McDougal, and the court ruled, “That is how we’re gonna do it.” Defense counsel proceeded to cross-examine McDougal, asking him about the questions he had asked K.H. and about her answers.
After the jury retired to deliberate, it asked to view the tape. Brown objected that the jury would give undue emphasis and more weight to the tape than to K.H.’s courtroom testimony. He argued that the evidence was prejudicial because it was not subject to cross-examination and was in contravention of the Confrontation Clause. The trial court agreed, likening the tape to videotaped depositions that are not allowed in the jury room, and the jury was not allowed to have the tape. The jury then sent the trial court a note asking, “How can we be denied evidence that has already been admitted?” In open court, the judge explained his concern that they might give the tape greater weight or emphasis than it should have; he instructed them to rely on their notes and recollections of the video just as with other testimony.
On appeal, Brown asserts that Ark. Rule Evid. 803(25), as applied to his case, is patently unconstitutional because it deprived him of cross-examination and his right to confront his accuser, as guaranteed him by the Sixth Amendment. He claims that the videotaped statement made by the victim to Officer McDougal violated his right to confront the witnesses against him under Crawford v. Washington, 541 U.S. 36 (2004). He asserts that “the witness was in no way unavailable. She testified.” He complains that K.H.’s statement to Officer McDougal, made long before trial, was not subject to cross-examination; that cross was limited to examination of McDougal, “a poor substitute”; and that the State’s case was much weaker absent the videotape.
To the extent that Brown now challenges the constitutionality of Rule 803 itself, we agree with the State that the issue cannot be raised because it was not raised to the trial court. See, e.g., Woolbright v. State, 357 Ark. 63, 75, 160 S.W.3d 315, 323 (2004). Therefore, we reject on appeal any constitutional challenge regarding the rule. Brown also argues, chiefly citing Crawford, supra, that the admission of K.H.’s videotaped statement to Detective McDougal violated his Sixth Amendment right to confront the witness against him. We address this argument because it was presented to the trial court.
In Crawford the United States Supreme Court held that the Sixth Amendment’s Confrontation Clause precludes the admission of testimonial hearsay evidence when the witness is unavailable to testify and the defendant has not had a prior opportunity for cross-examination. 541 U.S. at 68. The Cranford court also stated, however, that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. . .. The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” 541 U.S. at 59 n. 9.
We agree with the State that Brown has misinterpreted Crawford, and that it does not apply to the present case. The Crawford court clearly stated that the Confrontation Clause does not bar admission of hearsay statements when the hearsay declarant testifies at trial. Here, K.H. appeared at trial, was placed under oath, and was subject to cross-examination by Brown. Although Brown complains on appeal that he was unable to cross-examine K.H. about her videotaped statement to police, he points to no ruling that prevented him from recalling her after the tape was admitted after McDougal’s testimony so that she could be questioned about the interview. We hold that the Confrontation Clause erected no barrier to the introduction of the videotaped interview, and Brown’s right to confront K.H. was not violated. Crawford, supra, which addressed “testimonial statements of witnesses absent from trial,” 541 U.S. at 59, was not implicated.
Affirmed.
Baker and Roaf, JJ., agree.
In the recent case of Davis v. Washington, 547 U.S. 813 (2006), the Supreme Court defined the kind of police interrogations that are barred from admission into evidence under Crawford v. Washington, supra, where hearsay declarants do not testify at trial:
When we said in Crawford, supra, at 53, 124 S.Ct. 1354, that “interrogations by law enforcement officers fall squarely within [the] class” of testimonial hearsay, we had immediately in mind (for that was the case before us) interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator.
547 U.S. at 826. The Davis court held that a victim’s 911 statements were not testimonial for purposes of the Confrontation Clause but that statements in response to police questioning, taken some time after potentially criminal events had ended and describing how they began and progressed, were inherently testimonial. | [
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John Mauzy Pittman, Judge.
Argenia, Inc., an insurance brokerage firm, appeals from a judgment finding it responsible for losses caused by a September 1991 fire. We find no error and affirm.
This case began when Troy Blasingame, the appellee, contacted Johnny Gossage, an insurance agent, to secure insurance on a building in Ozark. Mr. Gossage then contacted appellant regarding coverage. Subsequently, the building burned and appellee sought to collect the insurance proceeds. Appellant denied that coverage had been bound; however, Mr. Gossage’s errors and omissions carrier, Lancer Claims Service, paid appellee $80,000.00 eight months after the fire as the amount of coverage on the policy. When appellee brought action against appellant, appellant filed a motion to substitute Lancer Claims Service as the party plaintiff, alleging that Lancer Claims Service was the real party in interest pursuant to its payment of the $80,000.00 and that appellee had no financial interest in the outcome of the lawsuit. Appellee responded that he had sufficient financial interest in the outcome as he was seeking interest and a penalty. Appellant’s motion was denied. Appellant also filed a third-party complaint against Mr. Gossage. At trial, the parties stipulated that Mr. Blasingame was entitled to receive the $80,000.00 and proceeded to jury trial on the third-party complaint for a determination of which party should pay the claim. At trial, the court denied appellant’s motion for a directed verdict, and the jury assessed damages against appellant. The court denied Mr. Blasingame’s request for a penalty but awarded prejudgment and postjudgment interest.
On appeal, appellant first argues that the trial court erred in denying its motion to substitute Lancer Claims Service as the real party in interest. Rule 17(a) of the Arkansas Rules of Civil Procedure provides that “every action shall be prosecuted in the name of the real party in interest.” Appellant contends that because appellee was paid the total amount of coverage, it was error to allow him to pursue the lawsuit. Appellant cites several cases for the rule that, in insurance cases, the real party in interest is the insurer when the insured has been paid in full. That rule indeed is supported by the cases cited by appellant. See Bankston v. McKenzie, 287 Ark. 350, 698 S.W.2d 799 (1985); Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971).
In the present case, however, appellee claimed that he had not been fully reimbursed. It is also true that, when an insurance company has only partially reimbursed an insured for his loss, the insured is the real party in interest. The supreme court and this court have long held that when an insured has not been reimbursed for his deductible, the insured is the real party in interest. The supreme court stated:
The general rule is that where an insurance company has only partially reimbursed an insured for his loss, the insured is the real party in interest and can maintain the action in his own name for the complete amount of his loss. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566 (1950). It is undisputed in the present case that Sammons was never reimbursed by Farm Bureau for the amount of his deductible. This court has held that where the insured has a deductible interest, he is the real party in interest and the action must be brought in his name for his own benefit. Page v. Scott, 263 Ark. 684, 686, 567 S.W.2d 101 (1978); Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W.2d 811 (1964); see also Thompson v. Brown, 5 Ark. App. 111, 633 S.W.2d 382 (1982). The insured stands as trustee to the insurer as to any amount recovered; the insurer is not a necessary party. Id. Accordingly, the trial court committed reversible error in granting Case’s motion to substitute Farm Bureau as the real party in interest.
Farm Bureau Ins. Co. v. Case Corp., 317 Ark. 467, 469, 878 S.W.2d 741, 742 (1994).
Here, appellee was not reimbursed for his fire loss until approximately eight months after the fire. At trial, he sought both prejudgment and postjudgment interest. Appellee points out that prejudgment interest amounts to approximately $2,800.00. Prejudgment interest is awarded for the period of time in which the recovering party has been deprived of the use of money or property. During that period, the obligor has had the use of that which rightly belonged to the recovering party. USAA Life Ins. Co. v. Boyce, 294 Ark. 575, 745 S.W.2d 136 (1988). Likewise, postjudgment interest is awarded on the amount of prejudgment interest to compensate the recovering party for the loss of the use of money adjudged to be his. Hopper v. Denham, 281 Ark. 84, 661 S.W.2d 379 (1983). The purpose of awarding interest would be frustrated if appellee were not compensated for the loss of use of all of his money, both before and after judgment. Id. The award of interest was necessary to fully compensate appellee, the injured party. See Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981).
Deprived of the use of money adjudged to be his, appellee suffered a loss for which he had not been fully reimbursed. We conclude that the trial court was correct in determining that appellee was the real party in interest and was entitled to bring the action in his own name. We believe that our decision is in accord with those cases determining that an insured who has not been reimbursed for his deductible is the real party in interest and furthers the stated goal of permitting an insured to maintain an action in his own name for the complete amount of his loss.
Appellant also argues that the trial court erred in denying its motion for a directed verdict. This court’s standard of review in determining the sufficiency of the evidence is as follows:
In reviewing the denial of a motion for a directed verdict, this court gives the proof its strongest probative force. Lazelere v. Reed, 35 Ark. App. 174, 180, 816 S.W.2d 614, 618 (1991). Substantial evidence is that evidence which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or another; it must force or induce the mind to pass beyond a suspicion or conjecture. Bank of Malvern v. Dunklin, 307 Ark. 127, 129, 817 S.W.2d 873, 874 (1991); Newberry v. Johnson, 294 Ark. 455, 458, 743 S.W.2d 811, 812 (1988). Consequently, a motion for directed verdict should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Bice v. Hartford Accident & Indent. Co., 300 Ark. 122, 124, 777 S.W.2d 213, 214 (1989).
City of Fort Smith v. Findlay, 48 Ark. App. 197, 203-04, 893 S.W.2d 358, 362 (1995).
The evidence shows that in May 1991 Mr. Gossage contacted Mike Alexander, president of the appellant company, and obtained a quote for insurance on the building that appellee was purchasing. At trial, Mr. Gossage testified that after the quote was accepted by appellee, Mr. Alexander orally bound coverage on the building. He stated that he then mailed a signed insurance application and a check to appellant. Mr. Alexander denied that coverage was bound and stated that appellant’s records showed that coverage was not bound and that no application or check was received.
Appellant argues that payment of a premium is ordinarily a condition precedent to the creation of insurance coverage and that it demonstrated at trial that appellee lacked sufficient funds to make the down payment on the premium. Appellee testified at trial that he had checking accounts at that time either with American State Bank, the Bank of Mulberry, the Bank of Ozark, or some other bank. He stated that he did not remember the amount of the check or on which bank it had been drawn and that all of his records of the transaction were destroyed in the fire. Appellant presented records to show that appellee did not have open accounts at the Bank of Mulberry or American State Bank in May 1991 on which to draw a check.
We agree that the general rule is that payment of the premium is ordinarily a condition necessary to the operation of a policy of insurance. Leigh Winham, Inc. v. Reynolds Ins. Agency, 279 Ark. 317, 631 S.W.2d 74 (1983). There are, however, exceptions to this general rule. One such exception is the giving of an effective oral binder of coverage prior to payment of the premium. See Dixie Ins. Co. v. Joe Works Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989); Leigh Winham, Inc. v. Reynolds Ins. Agency, supra.
Here, there was a sharp dispute in the evidence regarding whether the president of the appellant company gave an oral binder of coverage. Ultimately, the weight and value to be given the testimony of witnesses lies within the exclusive province of the jury. Garrett v. Brown, 319 Ark. 662, 893 S.W.2d 784 (1995); Pineview Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989). Viewing the proof in the light most favorable to appellee, we cannot say that it does not represent substantial evidence of binding insurance. The trial court did not err in denying appellant’s motion for a directed verdict.
Affirmed.
Jennings, C.J., and Robbins, J., agree.
We note that Ark. Code Ann. § 23-79-120(b) (Repl. 1992) provides that “[n]o binder is valid beyond the issuance of the policy or beyond ninety days from its effective date, whichever period is the shorter.” However, appellant did not argue, either below or on appeal, that any binder that may have been given expired prior to appellee’s loss, and we do not consider that issue. | [
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James R. Cooper, Judge.
The parties in this chancery case were married in 1983 and separated on November 8, 1991. The appellant filed a complaint for divorce and the appellee answered and filed a counterclaim for divorce. After a hearing, the chancellor entered a decree of divorce and partial division of property on April 5, 1993. In the decree, the chancellor ordered an accounting for the parties’ farm and trucking operations for 1991 and 1992. After a hearing, the court in an order filed February 18, 1994, found the net income from those operations for 1991 and 1992 to be marital property totalling $72,628.52; awarded appellee judgment in the amount of $36,785.63; and found that the appellant was the successful purchaser of the real property. In a subsequent order entered on April 26, 1994, the chancellor found that the appellee’s judgment of $14,499.52 from the original divorce decree would bear interest from April 2, 1993 at 8% per annum. From those decisions, comes this appeal.
For reversal, the appellant and cross-appellant raise several issues relating to the order of February 18, 1994. We are unable to address those issues, however, because the record on appeal was filed outside the seven-month maximum period allowed for that purpose by Ark. R. App. P. 5(b).
Rule 5(b) provides, in pertinent part, that:
In no event shall the time [for filing the record] be extended more than seven (7) months from the date of the entry of the judgment, decree or order, or from the date on which a timely postjudgment motion under Rule 4(b) is deemed to have been disposed of under Rule 4(c), whichever is later. An appeal from an order disposing of a postjudgment motion under Rule 4 brings up for review the judgment, decree and any intermediate order involving the merits and necessarily affecting the judgment, as well as the order appealed from.
The order of February 18, 1994, dealt with all of the outstanding issues between the parties by concluding their rights to income on the farm and trucking operations for 1991 and 1992, by detailing credits to be given and allocations to be made by the Commissioner concerning the real property previously sold, and by its final paragraph concerning the distribution of “all remaining funds.” The order of February 18, 1994, was thus a final, appealable judgment. See Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869 (1992); Ark. R. App. P. 2(a)(1).
In contrast, the April 26, 1994, order concerning interest payments was a collateral matter, a ministerial detail in furtherance of the court’s decision. Details of such matters need not be final in order for the order granting all the relief prayed for in the complaint to be final. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991). Furthermore, the April 26, 1994, order did not arise out of a motion for judgment notwithstanding the verdict under Rule 50(b), out of a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), or out of a motion for a new trial under Rule 59(b). Consequently, the order of April 26, 1994, was not “an order disposing of a postjudgment motion under Rule 4,” and it did not bring up for review the order of February 18, 1994. Therefore, the filing of the record on appeal on September 26, 1994, was outside the seven-month maximum period allowed for that purpose by Ark. R. App. P. 5(b) with respect to the order of February 18, 1994, and the appeal and cross-appeal from that order must be dismissed. In re Estate of Wilkinson, 311 Ark. 311, 843 S.W.2d 316 (1992).
There remains a single issue arising out of the trial court’s order of April 26, 1994. The appellant contends that the trial court erred in ordering him to pay interest on the appellee’s judgment for $14,499.52 and on the unpaid purchase price of the real property. However, we find that this issue is moot. The record indicates that these amounts have been paid by the appellant, and voluntary payment of a judgment amount is inconsistent with a subsequent appeal so as to render any subsequent appeal moot. Shepherd v. State Auto Property and Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993). In the absence of any attempt to post a supersedeas bond, we regard the payment to be voluntary. Id.
Dismissed in part, affirmed in part.
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Karen R. Baker, Judge.
This case involves the application of the doctrine offorum non conveniens. The Benton County Circuit Court dismissed a suit filed by Wal-Mart, whose corporate headquarters are in Benton County, on the ground that Pennsylvania would be a more convenient forum. The lawsuit involved Wal-Mart’s attempt to seek insurance coverage from appellees United States Fidelity & Guaranty and Lexington Insurance Company for losses involving a Dickson City, Pennsylvania Wal-Mart store. We affirm the trial court’s decision.
The following facts are taken from Wal-Mart’s complaint and the insurance policies attached thereto. On December 6, 1996, a large boulder fell from a rock face behind the Dickson City Wal-Mart store, damaging the rear of the building. Geo-Science Engineering Company and Irwin & Leighton, a construction company, told Wal-Mart that a dangerous situation existed. Geo-Science reported that there were other unstable cracks in the rock face that could cause further damage. The company provided Wal-Mart with a list of remedial measures that could reduce the risk, such as relocating gas and electric utilities, moving overhead power lines underground, evacuating part of the store, and constructing a twenty-foot buffer against the rock face; however, the company stated that, if those measures could not be implemented within twelve to fifteen days, the store should be abandoned.
Wal-Mart decided to abandon the store. In January 1997, it resumed operations at a smaller, temporary location, and in March 1998, opened a new, permanent location. During this process, Wal-Mart allegedly incurred relocation expenses and experienced lost sales, which together totaled $4,822,790.95. Wal-Mart sought coverage from appellees, who had contracted to provide property loss and business interruption coverage to Wal-Mart for the period beginning April 1, 1996, and ending April 1, 1997. Appellees denied coverage, and Wal-Mart filed suit in Benton County Circuit Court.
Wal-Mart sought coverage, in part, based on the policies’ “sue and labor” provision. That provision permitted Wal-Mart to “sue, labor, and travel” in order to defend or safeguard property in case of actual or imminent loss to the property, and it further provided that appellees would contribute to the expenses Wal-Mart incurred in doing so. According to a pleading later filed by Wal-Mart, appellees denied coverage because “the geological condition of the hillside did not threaten ‘imminent loss or damage’ to the building, and the relocation of retail operations . . . was not necessary to ‘safeguard the insured property.’ Additionally, each insurer has questioned whether the loss was fortuitous.”
Appellees filed motions to dismiss Wal-Mart’s complaint on the basis offorum non conveniens. Neither insurer attached affidavits, depositions, or other exhibits to its motion, but each argued that Pennsylvania was the more convenient forum for the lawsuit based on the following factors: 1) Pennsylvania is where the property loss occurred; 2) Pennsylvania is where witnesses such as the store employees, store manager, the owner of the store property, the engineering company that investigated the damage, and Dickson City municipal employees were located; 3) other lawsuits concerning the rock slide were pending in Pennsylvania; and 4) Pennsylvania law would likely apply. Wal-Mart responded by characterizing the lawsuit as one merely involving the construction of insurance agreements, and therefore the case would involve legal issues not dependent on a factual inquiry into the circumstances of the loss. It argued that the negotiation, delivery, and performance of the insurance policies occurred not in Pennsylvania but in Arkansas and New York (where Wal-Mart’s insurance broker is located). The relevant witnesses, therefore, were not the Pennsylvania witnesses but Wal-Mart’s corporate personnel who had knowledge of the claim. Wal-Mart also argued that dismissal of its complaint would deprive it — an Arkansas resident — of the right to litigate in the courts of its own state.
Attached to Wal-Mart’s response were the affidavits of Rita Stephens, Wal-Mart’s Director of Risk Management, and Dale Snowden, Wal-Mart’s Property Claims Manager. Stephens’s affidavit set out the following pertinent information: Either she or her colleague, both of whom are located in Benton County, are required to ratify an insurance policy before coverage is bound; insurance premiums are paid from Wal-Mart’s Benton County office; the insurance broker’s representative involved in the adjustment of the claim would be willing to travel to Benton County for trial; and all records relating to the administration of insurance policies and coverage claims are maintained in Benton County. Snowden stated in his affidavit that he was responsible for investigating and preparing the claim in this case and that he and others in his department have knowledge of the circumstances attendant to the claim.
On August 10, 2001, a hearing was held on the motion to dismiss. Appellees’ attorney told the court that the issues at trial would be fact-intensive and would involve such inquiries as whether Wal-Mart knew that there was an unsafe condition prior to the policy period, whether Wal-Mart should have done something to prevent the rock slide, whether there had been a history of rock slides at that location, and whether the danger involved was imminent. According to the attorney, persons located in Pennsylvania would have knowledge of such matters. He stated that Wal-Mart store personnel and employees had supplied information to the insurance companies regarding how much damage was caused by the falling rock and for how long the rock slides had been occurring. Additionally, the insurance adjuster who worked the claim was located in Pennsylvania, and he had visited the site numerous times, taking photographs and talking to witnesses. Further, the property owner, a Pennsylvania company, would have knowledge about the condition of the hillside and whether any measures had been undertaken to prevent a rock slide. The attorney also mentioned that the engineering and construction companies named in Wal-Mart’s complaint were located in Pennsylvania, as were two other engineers who had given opinions about the situation. Further, he said, the city council of Dickson City also had an interest in the matter, and the council’s consulting engineer had knowledge regarding the hill in question.
Following the hearing, the trial judge granted appellees’ motion. The judge stated that he was reluctant to deny an Arkansas citizen access to the state’s courts and that he was hesitant to require Wal-Mart to litigate its claim elsewhere. However, he found that, because the case was “heavily burdened with factual issues,” it would be more convenient for the trial to be held in Pennsylvania, where the fact witnesses were located. Further, he noted that it would be a minor inconvenience to require Wal-Mart’s corporate employees to make the trip to Pennsylvania as compared with attempting to bring the Pennsylvania witnesses to Benton County. He referred to the fact that “the impact on the parties trying to litigate this and take depositions and compel attendance of numerous witnesses to the court just to take depositions, . . . would be an overwhelming burden and a needless burden when there is a court in Pennsylvania that could satisfy all of those needs.”
The judge also declared that, while he was awed by the prospect of having Wal-Mart litigate all its insurance cases in Benton County, that prospect was not “much of a factor” because it had yet to materialize. Likewise, he did not consider the choice-of-law question, predicting that it would be answered later in the case.
Forum non conveniens is a doctrine that allows a trial court to decline to hear a case, even though it has jurisdiction to do so. See Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). The doctrine is applied when it would be in the interests of the parties and the public to try the case in another forum. See generally Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947).
The Arkansas Supreme Court formally recognized the doctrine offorum non conveniens in Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W.2d 578 (1957), overruled on other grounds, Malone & Hyde, Inc. v. Chisley, 308 Ark. 308, 825 S.W.2d 558 (1992). The doctrine was also recognized by the Arkansas legislature in Act 101 of 1963, which is codified at Ark. Code Ann. § 16-4-101 (D) (Repl. 1999):
Inconvenient Forum. When the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any conditions that may be just.
Arkansas courts have utilized the following factors to determine whether a case should be moved to a more convenient forum: 1) the convenience to each party in obtaining documents or witnesses; 2) the expense involved to each party; 3) the condition of the trial court’s docket; and 4) any other facts or circumstances affecting a just determination. Life of America Ins. Co. v. Baker-Lowe-Fox Ins. Marketing, Inc., 316 Ark. 630, 873 S.W.2d 537 (1994). Our courts have recognized that we will reverse a trial court’s ruling on a forum non conveniens question only if the court abuses its discretion. Id.; Country Pride Foods, Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983).
We hold that there was no abuse of discretion here. As the trial court understood, we should be reluctant to deprive an Arkansas resident of access to its home forum. However, a resident plaintiff s choice of forum is not the only matter to be considered in making a forum non conveniens decision, although it is of “high significance.” See generally Koster v. Lumbermen’s Mut. Cas. Co., 330 U.S. 518, 525 (1947). W^ note that a plaintiff such as Wal-Mart, who has chosen to acquire property and engage in extensive business dealings in numerous locations throughout the country, might be expected, more than the average plaintiff, to find that its resident forum is not convenient for all purposes.
Further, we find no fault with the trial court’s ruling that the location of the Pennsylvania witnesses and the relative inconvenience that would ensue from attempting to compel their attendance in Benton County weigh in favor of having the trial in Pennsylvania. The court made a determination, which we think is supportable based on experience and logic, that the issues in Wal-Mart’s lawsuit would involve not just legal questions, but factual questions as well. While the testimony of those corporate personnel who executed the insurance contracts and managed the claims process could be of some relevance, the testimony of those persons in Pennsylvania who were employed by the store and who inspected the hillside and rendered opinions on its condition appear highly relevant to the question of whether coverage was owed in this case and, if so, to what extent. Several cases have recognized that the location of witnesses is a significant factor viewed by the courts in making a forum non conveniens determination. See, e.g., Kamel v. Hill-Rom Co., 108 F.3d 799 (7th Cir. 1997); Kempe v. Ocean Drilling & Expl. Co., 876 F.2d 1138 (5th Cir. 1989), cert. denied, 493 U.S. 918 (1989); TV-3, Inc. v. Royal Ins. Co. of Amer., 28 F. Supp. 2d 407 (E.D. Tex. 1998); and So-Comm, Inc. v. Reynolds, 607 F. Supp. 663 (N.D. Ill. 1985). See also Sandvik, Inc. v. Contenental Ins. Co., 724 F. Supp. 303 (D.N.J. 1989) (case transferred to site of loss where coverage issues involved more than mere contractual interpretation and would require reference to “site-specific” facts).
A trial court abuses its discretion when it acts improvidently or arbitrarily in making a finding. See Bonds v. Lloyd, 259 Ark. 557, 535 S.W.2d 218 (1976). See generally Hogan v. Holliday, 72 Ark. App. 67, 31 S.W.3d 875 (2000), (holding that a trial court abuses its discretion by acting thoughtlessly and without due consideration). The trial court in this case gave due consideration to Wal-Mart’s status as a resident plaintiff, thoughtfully analyzed the potential issues and witnesses in the case, and carefully weighed the relative convenience to the parties and the witnesses. Under these circumstances, we cannot say that an abuse of discretion occurred.
Wal-Mart also argues that the record before the trial court did not afford an adequate evidentiary basis for a ruling on the forum non conveniens question. In particular, it points to the fact that appellees did not rely on affidavits or other evidence to sup port their motion to dismiss, but on the pleadings, insurance policies, and representations of counsel at the hearing.
In Running v. Southwest Freight Lines, Inc., supra, the case that first recognized the doctrine of forum non conveniens in Arkansas, the supreme court held that the parties’ pleadings, which showed only the residence of the parties and where the cause of action arose, did not contain sufficient information to allow the trial court to exercise its discretion on the convenient forum question. However, when Running was decided, forum non conveniens was a novel concept in Arkansas, and our courts had not yet declared the factors that a trial court should consider. Further, the pleadings in this case contain considerably more information than those in Running. Additionally, the record contains the insurance policies at issue and states the coverage issues involved. Also, appellees identified potential witnesses in the case, and Wal-Mart did not dispute either the existence of those witnesses, their location, or the matters to which they might testify. In Country Pride Foods Ltd. v. Medina & Medina, supra, the supreme court likewise held that the record should contain facts upon which the trial court bases its decision. However, that case is also distinguishable because there, the trial court raised the issue of forum non conveniens sua sponte. Therefore, it was necessary to remand the case to discover the basis for the court’s decision.
It must be remembered that, in most instances, the forum non conveniens determination is made at the dismissal stage, before a lawsuit is fully developed; were'it not, there would be little point in having the doctrine because the parties would be required to begin the litigation process in what might prove to be an inconvenient forum. So, while the moving party has the burden of showing the trial court why the chosen forum is not convenient, we do not read Running and Country Pride Foods to say that extensively developed proof is required, especially when the authenticity of the matters placed before the court is not seriously called into question by the opposing party. Under the circumstances of this particular case, the record was sufficient to allow the trial court to exercise its discretion.
Affirmed.
Griffen and Vaught, JJ., agree.
The policies stated that their coverage territory included all fifty states, the District of Columbia, Puerto Rico, the Virgin Islands, and Canada. Despite this wide area of coverage, the policies contained no forum-selection clause or choice-of-law clause.
In Scottish Union & National Insurance Co. v. Hutchins, 188 Ark. 533, 66 S.W.2d 616 (1934) and American Railway Express Co. v. H. Rouw Co., 173 Ark. 810, 294 S.W. 401 (1927), Arkansas plaintiffs were permitted to sue foreign insurers in an Arkansas court, even though the property loss occurred in another state. However, both cases were decided before we recognized the doctrine offorum non conveniens and were approached from the standpoint of whether the trial court had jurisdiction rather than whether the chosen forum was convenient.
Additionally, Wal-Mart has cited cases from other jurisdictions in which plaintiffs sued insurers in the plaintiffs’ home forum, despite the fact that the loss occurred elsewhere. We do not find those holdings persuasive, given the facts of this case. | [
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John B. Robbins, Judge.
Appellants Ron and Kandi Morris purchased a home from appellees Ben and Jo Anne Rush in August 1996 for $445,000.00. In October 1998, the Morrises filed a complaint against the Rushes, alleging breach of contract, fraud in the inducement to enter into the contract, and breach of implied warranty of fitness for habitation. The complaint specifically alleged that there were numerous problems and defects with the house, including but not limited to the fact that the foundation is not sufficient to support the house, which has resulted in excessive settling, cracked walls, and uneven floors. In their complaint, the Morrises further alleged that the Rushes were aware of the problems and defects at the time the parties entered into the purchase contract, but failed to disclose them.
The Rushes filed a third-party complaint against appellee Lyman Lamb Lumber Company, alleging that Lyman Lamb Lumber is liable for any damages incurred by the Rushes, as a result of Lyman Lamb Lumber’s faulty architectural design. The Rushes subsequently filed a motion for summary judgment, asserting that the contract at issue provided that the Morrises would accept the property “as is” and disclaim any reliance upon any warranties or representations. In their motion, the Rushes alleged that the Morrises relied on their own inspectors, and that the Morrises admitted that they were not aware of any misrepresentations of fact on the part of the Rushes.
The trial court granted the Rushes’ motion for summary judgment, and in its order disposed of all claims, including the third-party complaint against Lyman Lamb Lumber. The Mor-rises now appeal.
The Morrises raise three arguments for reversal. First, they argue that the trial court erred in granting summary judgment because a material issue of fact existed as to whether the Rushes concealed the severe defects regarding the foundation of the house. Next, they assert that the trial court erred because a material issue of fact existed as to whether the “as is” clause applied. Finally, the Morrises contend that the trial court erred in excluding the Rushes as builder-vendors, and that as builder-vendors the Rushes impliedly warranted that the house was fit for habitation. We affirm.
Arkansas Rule of Civil Procedure 56(c) provides for summary judgment when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party bears the burden of sustaining a motion for summary judgment; once the moving party meets this burden, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Calcagno v. Shelter Mut. Ins. Co., 330 Ark. 802, 957 S.W.2d 700 (1997). On appeal, we view the evidence in the light most favorable to the opposing party and resolve all questions and ambiguities against the moving party. Elder v. Security Bank, 68 Ark. App. 132, 5 S.W.3d 78 (1999).
The contract between the Rushes and Morrises contained a “Buyers Disclaimer of Reliance,” that provided that the buyer inspected or had someone else inspect the property and that the buyer was not relying on any other representations. The contract also provided that the buyer agreed to accept the property “as is,” subject to a list of items being in working order.
Prior to closing on the house, the Morrises had two inspections performed. GQ Inspection Service inspected the home, and its inspection report revealed no major problems. Ryan Howard of Engineering Consultants also conducted an inspection to determine the structural integrity of the house, and he indicated in his report that he found evidence of minor setdement in the house, which included cracks above the doors, as well as evidence of potential structural problems.
About nine months after buying the house, the Morrises began to notice cracks in the walls, molding pulling away from the ceiling, and sinking floors. As a result, they hired Edgar Riddick III, an engineer, to inspect their home. In October 1997, Mr. Riddick reported that in his professional opinion the home was not constructed in a way that would be acceptable by normal construction standards. In his report, he stated:
The floor joist of the home was not properly supported by enough pillars. The pillars that do exist are not properly completed. This has caused the home to settle prematurely and has caused damage to the home. If the “shim” problem is not fixed the structure would continue to settle. This movement would cause further cracking of sheet-rock walls, further deterioration of millwork and doorjambs, etc.
I do believe that a trained eye should have spotted the “shim” problem under the house.
I do not believe that an untrained eye would have necessarily spotted the potential problems of the “shims.” Thus, the Morris family would not have any forewarning before purchasing the home. It is my understanding, [that] the cracking and problems in the millwork and crown moldings, noted earlier in the report, were not present at the time of sale. These problems occurred within months of the Morris family occupying the home. Mr. and Mrs. Morris tell me that they began to see evidence of this settling shortly after moving in. I believe the previous occupants of the house should have noticed evidence of the settling. There were attempts by someone to paint over some of these defects prior to the Morris’ moving in.
In his deposition, Mr. Morris testified that he initially told his wife that he did not think buying the house was “the thing to do.” He stated that he had some misgivings about the house, and to reassure himself he obtained inspections from professionals. He stated that, based on the fact that the professionals’ reports “checked out,” they went forward with the purchase. Mr. Morris testified that, “I relied upon the inspection reports,” and that he “thought the inspectors would have more of a trained eye than I would.” Mr. Morris did not contend that the Rushes ever lied or told him anything that later turned out to be untrue.
Mrs. Morris also gave a deposition, and she stated that she has a real estate license and brokers’ license and was a realtor for a couple of years during the 1990s. She acknowledged that she has a “pretty good understanding” of what is involved in buying and selling a home. However, she testified that because she and her husband are not professionals, they relied on the opinions of the inspector and structural engineer in making the final decision to purchase the house.
Mr. Rush testified that he and his wife built the home and began living in it in December 1994. However, he stated that they did not build the home with the intention of selling it to the public, and that neither he nor his wife is in the construction business. Mr. Rush testified that he never had any conversations with the Morrises prior to their purchase of the home because his real estate agent handled all of the negotiations. He stated that he made no representations or statements to the Morrises about the quality of the home prior to the purchase date.
The appellants’ first point on appeal is that the trial court erred in finding that no material issue of fact existed as to whether the Rushes concealed the severe defects regarding the foundation of the house. The appellants rely on the report of Mr. Riddick, which indicates that the Rushes should have noticed evidence of settling, and that there were attempts by someone to paint over some of the defects prior to the sale. The appellants submit that a significant issue of fact exists as to whether the Rushes intentionally concealed the fact that the house was prematurely settling, which caused severe damage to the house, and that the issue of whether the Rushes fraudulently induced them to enter into the contract is an issue to be decided by a jury.
The elements of a cause of action for fraud were set out in O’Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997), as follows:
(1) a false representation of a material fact;
(2) knowledge or belief on the part of the person making the representation that the representation is false;
(3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation;
(4) a justifiable reliance by the other party; and
(5) resulting damages.
Id. at 316, 942 S.W.2d at 857 (citation omitted). Representations are considered fraudulent when the one making them either knows them to be false or, not knowing, asserts them to be true. O’Mara v. Dykema, supra. A grant of summary judgment on a claim of misrepresentation is appropriate when a plaintiff does not produce specific facts that the defendant knew his representations were false. Rosser v. Columbia Mut. Ins. Co., 55 Ark. App. 77, 928 S.W.2d 813 (1996).
We hold that, in the instant case, the trial court did not err in ruling as a matter of law that the Rushes did not fraudulently induce the Morrises. In their depositions, neither Mr. Morris nor Mrs. Morris alleged that the Rushes made any false representations. Furthermore, the contract and the Morrises’ depositions demonstrate that they were relying on their own professional inspectors, and not any representation by the Rushes. The report of Ryan Howard indicated both interior and exterior cracking that appeared to be caused by minor settling. Thus, even if the Rushes attempted to conceal signs of settlement, the Mor-rises had notice of the cracking and evidence of settlement before the contract became final. On the undisputed facts, the Morrises were not fraudulendy induced by the Rushes to enter into the contract of sale.
The appellants next argue that the trial court erred in concluding that no material fact existed as to whether the “as is” contract clause applied to this case. That clause provides:
Buyer agrees to accept the Property “as is,” in its present condition, provided that the following items shall be in normal working order at closing: electrical, plumbing and septic systems, heating and air systems, dishwashers, disposals, trash compactors, ranges, exhaust and ceiling fans, water heaters, garage door openers, remote controls and any and all components and all improvements, structures and components thereof, on or about the property (collectively the “Inspection Items”).
The report prepared by Mr. Riddick indicated that the problem with the foundation was that the floor was not supported by enough pillars, and that the pillars that existed were not properly completed. The appellants assert that these pillars constitute an “improvement, structure, and component” of the house under the terms of the “as is” clause, and that due to the general collapsing of the home soon after they moved in there is a material issue as to whether the foundation and pillars were in “normal working order at closing.”
The trial court did not err in ruling, as a matter of law, that the “as is” clause was of no avail to the appellants’ action. The clause is unambiguous and susceptible to only one logical interpretation. The “as is” exceptions do not include, as appellants suggest, problems with the pillars and foundation. Clearly, the phrase “improvements, structures, and components thereof’ relates only to the individual inspection items, and not to the house itself. Otherwise the “as is” clause would be completely swallowed up by the exceptions. Therefore, the issue of whether the pillars and foundation were in “normal working order at closing” is immaterial.
The appellants’ remaining argument is that the trial court erroneously excluded the Rushes as builder-vendors. They assert that the Rushes were builder-vendors because Mr. Rush was the general contractor for the house, and they sold it shortly after it was built. Appellants cite Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970), for the proposition that when a person who sells a house was also the builder, and that person sells the new house to its first intended occupant, he impliedly warrants that the foundations are secure and firm and that the house is safe for the buyer to five in. In that case, our supreme court quoted House v. Thornton, 457 P.2d 199, 76 Wash.2d 428 (1969), as follows:
As between vendor and purchaser, the builder-vendors, even though exercising reasonable care to construct a sound building, had by far the better opportunity to examine the stability of the site and to determine the kind of foundation to install. Although hindsight, it is frequendy said, is 20-20 and defendants used reasonable prudence in selecting the site and designing and constructing the building, their position throughout the process of selection, planning and construction was markedly superior to that of their first purchaser-occupant. To borrow an idea from equity, of the innocent parties who suffered, it was the builder-vendor who made the harm possible. If there is a comparative standard of innocence, as well as of culpability, the defendants who built and sold the house were less innocent and more culpable than the wholly innocent and unsuspecting buyer. Thus, the old rule of caveat emptor has little relevance to the sale of a brand-new house by a vendor-builder to a first buyer for purposes of occupancy.
Wawak v. Stewart, 247 Ark. at 1097, 449 S.W.2d at 924. The appellants argue that, while they did not buy a brand-new house, liability should still be on the Rushes because of their opportunity to examine the stability of the site and determine the kind of foundation that was necessary.
The instant case is clearly distinguishable from Wawak v. Stewart, supra, because in that case the appellant was a professional house builder and built the house at issue in the course of his business. It is undisputed that the Rushes, on the other hand, are not professional builders. The appellants have cited no cases, and we know of none, which hold that an individual who builds his own house, lives in it, and later sells it, qualifies as a builder-vendor. For this reason alone appellants’ final argument fails. Moreover, their argument would fail even if the Rushes had been builder-vendors because an implied warranty of habitability is waived when the buyer purchases the property “as is.” See O’Mara v. Dykema, supra.
We hold that the trial court committed no error in finding that there were no genuine issues of material fact and the appellees were entitled to judgment as a matter of law. Therefore, we affirm the trial court’s order granting summary judgment.
Affirmed.
Griffen and Roaf, JJ., agree. | [
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John E. Jennings, Judge.
Nedra Bratton entered a conditional plea of guilty to a charge of possession of methamphetamine for which she was sentenced to a term of two years in prison. Bratton reserved her right to appeal the denial of her motion to suppress as permitted under Ark. R. Crim. P. 24.3(b). The only issue on appeal is whether the trial court erred in refusing to suppress evidence of contraband seized from her vehicle. Because the trial court’s finding that the contraband was discovered in the course of a valid inventory is not clearly erroneous, we affirm.
State Trooper Jeff Crow was dispatched to investigate a one-car accident on Highway 7 south of Arkadelphia. A Clark County Deputy, Raymond Funderburk, was at the scene when Crow arrived. Appellant, the driver of the vehicle, had already been taken to the hospital by ambulance. There were no other occupants of the vehicle. Trooper Crow saw that the vehicle had left the roadway and had overturned, and he called a wrecker service to have the vehicle towed. When the wrecker arrived, the vehicle was righted and moved a short distance down the highway onto a county road. There, Crow conducted what he said was an inventory of the vehicle with the assistance of Officer Funderburk. Marijuana was found in a day-planner that was inside a backpack. A cosmetic case contained .267 grams of methamphetamine.
Trooper Crow testified that it was the policy of the state police to impound a vehicle involved in an accident and left unattended on the roadway. He said that the purpose of the inventory was to protect the owner’s property found inside the vehicle and to protect officers from allegations of theft and the mishandling of the vehicle’s contents. A copy of the written policy was introduced into evidence.
Deputy Funderburk testified that the sheriffs department also had a policy to inventory impounded vehicles and that the policy required all containers to be opened. A copy of the Clark County Sheriffs Department policy was also introduced into evidence.
Based on the evidence, the trial court denied the motion to suppress, ruling that it was not unreasonable for the officers, coming upon this type of accident, to remove the vehicle to a safe location to conduct the inventory and that the inventory was accomplished in accordance with the written procedures.
On appeal, appellant contends that the inventory was invalid because the officers were searching the vehicle for the purpose of investigating the accident. Appellant bases this argument on a statement contained in Trooper Crow’s accident report in which he said that he “conducted an inventory of the contents of the vehicle and attempted to locate documents needed to complete the accident report.” On this subject, Trooper Crow testified that it was not uncommon, in the course of conducting an inventory following an accident, for the driver’s license, insurance papers, and other documents of ownership to be recovered as needed to complete an accident report. Appellant contends that the evidence reveals an investigatory motive for the search.
We begin with the basic premise that all warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant. See Hoey v. State, 73 Ark. App. 118, 42 S.W.3d 564 (2001). The so-called “inventory search” of an automobile is recognized as such an exception. South Dakota v. Opperman, 428 U.S. 364 (1976); Izell v. State, 75 Ark. App. 377, 58 S.W.3d 400 (2001). Pursuant to this exception, police officers may conduct a warrant-less inventory search of a vehicle that is being impounded in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Benson v. State, 342 Ark. 684, 30 S.W.3d 731 (2000). An inventory search, however, may not be used as a guise for “general rummaging to discover incriminating evidence.” Florida v. Wells, 495 U.S. 1, 4 (1990). Hence, the police may impound a vehicle and inventory its contents only if the actions are taken in good faith and in accordance with standard police procedures or policies. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998) (citing Colorado v. Bertine, 479 U.S. 367 (1987)). Finally, Rule 12.6 of the Rules of Criminal Procedure provides:
A vehicle impounded in consequence of an arrest, or retained in official custody for other good cause, may be searched at such times and to such extent as is reasonably necessary for safekeeping of the vehicle and its contents.
In reviewing a trial court’s denial of a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Hadl v. State, 74 Ark. App. 113, 47 S.W.3d 897 (2001). We defer to the superior position of the trial court to determine the credibility of the witnesses. See Shaver v. State, 332 Ark. 13, 963 S.W.2d 598 (1998).
In Kirk v. State, 38 Ark. App. 159, 832 S.W.2d 271 (1992), an officer discovered contraband in a black box located in a wrecked vehicle while looking for registration papers. The State conceded that the officer’s actions amounted to a search, and we said that we knew of no exception to the warrant requirement permitting a general search of a disabled vehicle for evidence of ownership, at least when the identity of the driver is known. We rejected the State’s argument that the search could be justified under the inventory exception because there was no evidence in the record of any standard policy regulating the opening of closed containers. Without evidence of any standardized criteria, we reversed the trial court’s denial of the motion to suppress.
In the case at bar, however, there was evidence of department policies regulating inventory practice and procedure, and the case more closely resembles Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). There, the appellant’s vehicle was impounded following his arrest. The appellant argued that the inventory was a mere pretext for a search because one of the officers admitted that he was also looking for guns in the vehicle. The supreme court observed that an officer’s awareness that he might come upon pertinent evidence in the course of an inventory is not fatal. The court held that, in order to suppress an inventory search, a defendant must show that the police officers were conducting the inventory search in bad faith for the sole purpose of collecting evidence. The court upheld the search because there was evidence that the officers were following standard procedure and there was no proof that the investigatory purpose was the sole motivation for the search. Accord Folly v. State, 28 Ark. App. 98, 771 S.W.2d 306 (1989) (holding that where an inventory is otherwise permissible, its validity is not affected by a suspicion that contraband may be found).
The decision in Welch is consistent with the view of a number of courts that the presence of an investigatory motive, even if proven, does not invalidate an otherwise lawful inventory search. United States v. Agofsky, 20 F.3d 866 (8th Cir. 1994); United States v. Lomeli, 76 F.3d 146 (7th Cir. 1996); United States v. Rodriguez-Morales, 929 F.2d 780 (1st Cir. 1991); United States v. Frank, 864 F.2d 992 (3rd Cir. 1989); United States v. Johnson, 815 F.2d 309 (5th Cir. 1987); State v. Ture, 632 N.W.2d 621 (Minn. 2001); State v. Huisman, 544 N.W.2d 433 (Iowa 1996); People v. Hauseman, 900 P.2d 74 (Colo. 1995); People v. Gee, 33 P.3d 1252 (Colo. Ct. App. 2001). In gauging whether an officer’s conduct is calculated to hide an improper motive, the officer’s actions are judged under a standard of objective reasonableness. Under this approach:
An officer’s hope of finding incriminating evidence during an otherwise valid search does not, without more, indicate a pretex-tual motive for his or her conduct. Instead, ‘the pretext arises out of the fact that the evidence is found in a search which would not have occurred at all but for the manipulation of circumstances and events by the police because of their desire to conduct a search which could not otherwise be lawfully made.’ Thus, the inquiry must focus on the objective reasonableness of the officer’s conduct, and the trial court must determine whether a reasonable officer in the particular circumstances of the case would have engaged in the challenged conduct absent an illegitimate motive.
People v. Hauseman, 900 P.2d 74, 79 (Colo. 1995) (citations omitted).
Here, the appellant’s vehicle was disabled, and the appellant had been transported to the hospital. Under these circumstances, the policies that the officers were working under mandated the impoundment of the vehicle and an inventory of its contents. It is permissible for an officer to impound and inventory a vehicle when the driver is physically unable to drive the car, and where leaving it on the side of the road would create a safety hazard. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998). From an objective standpoint, the officer had a legitimate reason to impound the vehicle and inventory its contents. Furthermore, the inventory was conducted in accordance with established procedures. For these reasons we hold that the officer’s interest in investigating the accident did not render his inventory an “unreasonable search” under the Fourth Amendment.
Affirmed.
Stroud, C.J., and Griffen, J., agree. | [
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Andree Layton Roaf, Judge.
This tort case results from a lawsuit filed by appellee, Gerald Eubanks, against appellant, JAG Consulting, for its conversion of tools and equipment that belonged to appellee. The jury returned a verdict awarding appellee $18,000.00 in compensatory damages and $11,000.00 in punitive damages. JAG Consulting has appealed, arguing four points of error: (1) that the trial court erred in denying its motion for directed verdict because there was no substantial evidence to establish the fair market value of the tools and equipment allegedly converted; (2) that the trial court erred in permitting appellee to testify from a list he prepared based on the replacement cost of the tools and equipment; (3) that the trial court erred in permitting appellee’s wife to testify to lost income that appellee sustained as a result of the conversion of the tools and equipment; (4) that the trial court erred in allowing appellee’s wife to testify to the value of her property because she was not a party to the litigation. We agree with the first and fourth points and reverse and remand.
On December 22, 1993, officers from the Ashley County Sheriffs Department and the Hamburg Police Department executed search warrants on appellee’s home and shop. The officers were searching for tools and equipment belonging to appellant, then known as Glad Industries (Glad). During the search, the officers were assisted by Jim Atkins, Glad’s safety and security officer, who helped identify Glad’s tools. A deputy made a list of the seized items during the search, which was later introduced at trial as Defendant’s Exhibit 1. Some of the items seized had been purchased by appellee at an auction that Glad conducted in 1983. Before the auction, Glad had used orange paint to mark its tools. After the auction, Glad used an orange and yellow paint scheme to mark its tools. Some of the tools and equipment claimed by appellee bore an orange and yellow paint scheme. The tools and equipment seized during the search were delivered to Glad where its employees went through the seized items and identified those that did not belong to Glad. Those items were returned to the Sheriffs Department and later to appellee.
Criminal charges were filed against appellee and Eddie Anthony in April 1994. Anthony, who was Glad’s purchasing agent in charge of its tool room, was terminated on the day of the search. Glad had a policy at that time of allowing employees to take Glad’s tools and equipment home for their personal use. The criminal charges were later dismissed against both appellee and Anthony.
After the criminal charges were dismissed, appellee filed suit against Glad alleging that Glad had converted the seized items by not returning them to him and sought unspecified compensatory damages. Appellee amended his complaint to seek punitive damages. As noted, the jury returned a verdict in appellee’s favor, and this appeal followed.
In its first point, appellant alleges that the trial court erred in denying the appellant’s motion for a directed verdict because there was no substantial evidence to establish the fair market value of the tools and equipment allegedly converted by appellant.
It has been repeatedly held that, when reviewing a denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001). 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 mere suspicion or conjecture. Id. We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
In Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979), the supreme court held that the proper measure of damages for the conversion of personal items was their fair market value at the time and place of the conversion. The court went on to hold that evidence based upon purchase, replacement, or rental prices was improper. Id. Because of the lack of evidence of fair market value, the supreme court reversed a judgment in favor of Herring. This measure of damages has been restated several times since Herring. See McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991); Burdan v. Walton, 286 Ark. 98, 689 S.W.2d 543 (1985). Fair market value is defined as the price the personalty would bring between a willing seller and a willing buyer in the open market after negotiations. Minerva Enters., Inc. v. Hewlett, 308 Ark. 291, 824 S.W.2d 377 (1992); Southern Bus Co. v. Simpson, 214 Ark. 323, 215 S.W.2d 699 (1948). See also AMI Civil 4th, 2221.
In his pretrial deposition, appellee provided a list of items that he alleged were convertéd by appellant containing values for each item. At trial, appellee testified from this list. The values were derived either from wholesale price lists or from receipts that appellee had for the items. A copy of the list without the values was introduced as Plaintiffs Exhibit 1.
Furthermore, this list was virtually identical to the list made by the deputy during the search, but appellee had also added the contents of four tool boxes that had been seized during the raid. Most of the evidence regarding the value of the tools and equipment seized from appellee came from the testimony of appellee himself. When counsel first began questioning appellee about the value of items on his list, appellant objected because appellee was going to testify as to replacement values that had been obtained from two wholesale price lists and from receipts he had for the purchase of some of the items. The objection was that the values given were not determined by the fair market value measure found in Herring, specifically citing the case. Appellee testified that he did not understand the meaning of “fair market value” and that he thought it meant replacement cost. Appellee also testified that many of the tools came with lifetime guarantees, without identifying the specific items.
Throughout his testimony, appellee referred to the current cost of a new item, less ten percent. Appellee testified to the replacement costs of items. Appellee also testified that he had used several items over the years and still gave the current replacement cost instead of the fair market value at the time of the conversion. All of the values given were before ten percent was subtracted for depreciation. Appellee testified at trial that his opinion was based on the replacement cost, less ten percent. Appellee was qualified as an expert by the trial court. As such, he could base his opinion on information he gained from others, including other experts. See Phillips v. Graves, 219 Ark. 806, 245 S.W.2d 394 (1952). No effort was made to relate the value at the time of the 1993 seizure. The trial court instructed the jury during this testimony to disregard appellee’s answer that the tools and equipment had a total value of $20,655.37, and appellee offered no other testimony on value in response to this ruling. Appellant moved for a directed verdict at the conclusion of appellee’s case, at the conclusion of all the proof, and also moved for a judgment notwithstanding the verdict at the conclusion of the trial. The motions were denied, and appellant now argues that there was insufficient evidence to support the jury’s verdict.
It is the duty of the judge to instruct the jury, and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. Long v. Lampton, 324 Ark. 511, 922 S.W.2d 692 (1996); Dorton v. Francisco, 309 Ark. 472, 833 S.W.2d 362 (1992). In Lewis v. Phillips, 223 Ark. 380, 266 S.W.2d 68 (1954), the court stated:
In Benton Gravel Co. v. Wright, 206 Ark. 930, 175 S.W.2d 208, we said: “It is often difficult for a court to determine the true measure until all the evidence is in. . . . If there be different modes of measuring the damages, depending on the circumstances, the proper way is to hear the evidence, and to instruct the jury afterwards according to the nature of the case.”
Lewis, 223 Ark. at 383, 266 S.W.2d at 69-70. Here, appellant called the trial court’s attention to the proper measure of damages and cited the Herring case. The trial court also realized the proper measure of damages when it sustained appellant’s motion to strike appellee’s testimony as to the total value of the items taken when that testimony was based upon book value less ten percent without consideration of the value at the time of the 1993 seizure. The transcript of the instructions being read to the jury indicates that the jury was not given any instruction based on AMI 2221, which would describe the measure of damages as to the fair market value of the tools and equipment at the time and place of the conversion. The jury was not instructed as to any method by which to determine appellee’s damages. The written instructions are not included in the record.
Evidence must exist which affords a basis for measuring the plaintiffs loss with reasonable certainty, and the evidence must be such that the jury may find the amount of the loss by reasonable inferences from established facts, and not by conjecture, speculation or surmise. Bank of Cabot v. Ray, 279 Ark. 92, 648 S.W.2d 800 (1983); Missouri & Ark. Ry. v. Treece, 210 Ark. 63, 194 S.W.2d 203 (1946); Willis v. Triplett, 10 Ark. App. 247, 663 S.W.2d 201 (1984). Once appellee’s valuations are excluded, there simply is no evidence in the record that the jury could look to in determining appellee’s damages without resorting to speculation or conjecture. Therefore, the trial court erred in not granting the motion for a directed verdict.
Appellant argues a related issue for its second point, that the trial court erred in permitting appellee to testify from a list that appellee prepared based on the replacement cost of the tools and equipment. Appellee prepared a list of the items taken by the Sheriffs Department and police during the search. This list, without values, was introduced into evidence without objection by appellant. The objections to appellee’s testimony were based on hearsay and the fact that the values were based on replacement cost instead of fair market value. This list was identical to the list prepared during the search by the deputy sheriff and introduced into evidence as Defendant’s Exhibit 1. The introduction of the list itself was not error. First, the list does not contain any values. Second, the same information was before the jury earlier in the form of Defendant’s Exhibit 1, which had been introduced into evidence through the testimony of former Sheriff Bill Hudson, prior to testimony from appellee. It has long been the rule that there is no prejudice in admitting evidence that is merely cumulative or repetitious of other evidence admitted without objection. See Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001); Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000); Callahan v. Clark, 321 Ark. 376, 901 S.W.2d 842 (1995).
In its third point, appellant argues that, because it was a violation of the “best-evidence rule,” the trial court erred in permitting appellee’s wife to testify to income that appellee lost as a result of the conversion of appellee’s tools and equipment. Appellee attempted to establish through the testimony of Raynell Eubanks, his wife, a loss of income from appellee’s business resulting from the seizure and conversion of the tools and equipment. Appellant objected on the grounds that the best evidence of lost income would be appellee’s income tax returns. The trial court overruled the objection. When appellee sought to introduce testimony from Ms. Eubanks from the tax returns, appellant objected because the returns had not been disclosed or produced during discovery. The trial court agreed and refused to allow Ms. Eubanks to testify from the records but still allowed her to testify as to the amount of appellee’s lost income. Ms. Eubanks testified that she kept the books for her husband and prepared the information for submission to the accountant to prepare the tax returns.
Arkansas Rule of Evidence 1002 provides that, “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by rules adopted by the Supreme Court ... or by statute.” When a transaction occurs where a written record is made, it is not necessary to produce the record when there is testimony to prove the transaction. It is only when the writing itself must be proved that the writing must be produced. Canady v. Canady, 285 Ark. 378, 687 S.W.2d 833 (1985); Lin Mfg. Co. v. Courson, 246 Ark. 5, 436 S.W.2d 472 (1969). In the instant case, the issue was not the contents of a writing — the tax returns — but rather the amount of lost income that had been suffered by appellee. The best-evidence rule does not apply where a party seeks to prove a fact which has an existence independent of any writing, even though the fact might have been reduced to, or is evidenced by, a writing. R&R Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36 (1st Cir. 1984); Herzig v. Swift & Co., 146 F.2d 444 (2d Cir. 1945); Sayen v. Rydzewski, 387 F.2d 815 (7th Cir. 1967); Continental Ill. Nat’l Bank & Trust Co. v. Eastern Ill. Water Co., 31 Ill. App. 3d 148, 334 N.E.2d 96 (1975).
Ms. Eubanks testified that she kept the books and records for her husband’s business and compiled the figures concerning income and expenses prior to giving it to the accountant for preparation of the tax returns. Thus, she has firsthand knowledge of the information. No evidentiary rule prohibits a witness from testifying to a fact simply because the fact also can be supported by written documentation. R&R Assocs., supra.
Appellant argues for his fourth point that, because Ms. Eubanks was not a party to the action, the trial court erred in allowing her to testify as to the value of personal property belonging to her and allegedly converted by appellant. On the first day of trial, appellee testified that certain items included on the list of items actually belonged to his wife. Appellant filed a motion in limine seeking to prohibit Ms. Eubanks from testifying as to the value of any items belonging to her. The trial court overruled the motion, and Ms. Eubanks was permitted to testify as to which of her tools were seized. She valued those tools at $925.
It is a fundamental principle that the:
courts are instituted to afford relief to persons whose rights have been invaded ... by the defendant’s conduct, and to. give relief at the instance of such persons; a court may and properly should refuse to entertain an action at the instance of one whose rights have not been invaded or infringed, as where he seeks to invoke a remedy in behalf of ano'ther who seeks no redress.
59 Am. Jur. 2d Parties § 26 (1971). Furthermore, it is a general rule that “[I]f an injury is done to personal property, the right of action is in. the then owner alone, and not in any subsequent purchaser or successor in the title.” Id.
Daughhetee v. Shipley, 282 Ark. 596, 599, 669 S.W.2d 886, 887-88 (1984).
In Daughhetee, Ray Shipley owned a truck that was damaged in a collision with Daughhetee’s cow. After the collision but prior to suit being filed, Shipley died of causes unrelated to the accident. His heirs brought suit for damages to the truck without having a personal representative appointed to sue on behalf of the estate. Daughhetee’s motion to dismiss because of the heirs’ lack of standing to sue was overruled by the trial court, and judgment was entered against Daughhetee. On appeal, the supreme court agreed that the heirs lacked standing because they were not the proper party and reversed the judgment in favor of Shipley’s heirs. Daughhetee also held that it was not harmless error to allow a non-party to institute legal action. In Norman v. Norman, 347 Ark. 682, 66 S.W.3d 635 (2002), the supreme court defined a “party” as:
[A] person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually. A “party” to an action is a person whose name is designated on record as plaintiff or defendant. [The] term, in general, means one having right to. control proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from a judgment.
“Party” is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently are persons interested but not parties.
Norman, 347 Ark. at 685-86, 66 S.W.3d at 638 (quoting Black’s Lau> Dictionary 1122 (6th ed. 1990)).
Appellee argued to the jury in closing arguments that he should be allowed to recover for his wife’s property. Because Ms. Eubanks was not a party, it was error for the trial court to allow her to testify as to the value of her separate property. Where the jury’s verdict is rendered on a general verdict form, it is an indivisible entity or, in other words, a finding upon the whole case. J.E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001); Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999); The Home Co. v. Lammers, 221 Ark. 311, 254 S.W.2d 65 (1952). Because it is impossible to determine from the jury’s verdict whether damages for Ms. Eubanks’s property were included in the award, this case must be reversed.
Appellant asks that the case be reversed and dismissed. We agree that the trial court erred in not granting the directed verdict, but we find it appropriate in this situation to remand. This practice has been followed in other situations where the case was reversed because of insufficiency of the evidence. The supreme court has stated:
Our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly appears that there can be no recovery that we consider it proper to dismiss the cause. . . . The evidence might well have been much more developed than it was. This Court has held even where a judgment based on a jury verdict is reversed for insufficiency of the evidence to support it, there may be circumstances which justify remanding the case for new trial.
Hayes Bros. Flooring Co. v. Carter, Adm’x, 240 Ark. 522, 525, 401 S.W.2d 6, 8 (1966).
In St. Louis S.W. Ry. Co. v. Clemons, 242 Ark. 707, 415 S.W.2d 332 (1967), the court said:
The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108 (1892). There it was said that when a trial record discloses “a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supply the defect.”
See also Little Rock Newspapers, Inc. v. Dodrill, 281 Ark. 25, 660 S.W.2d 933 (1983); Home Ins. Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978); Southwestern Underwriters Ins. v. Miller, 254 Ark. 387, 493 S.W.2d 432 (1973). We have held this procedure applicable even when no proof was offered on an issue, and where it was demanded by simple justice or where it was not impossible that the deficiency in proof could be supplied. Follett v. Jones, 252 Ark. 950, 481 S.W.2d 713 (1972); Southern Farm Bur. Cas. Ins. v. Gottsponer, 245 Ark. 735, 434 S.W.2d 280 (1968). In this case, it does not clearly appear from the record that there can be no recovery, nor has there been any affirmative showing that such is the case.
Reversed and remanded.
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Donald L. Corbin, Chief Judge.
Appellants, Jack Wallner and Billie Frank Wallner, appeal a decision of the Carroll County Chancery Court which held that, because appellees, Charles Johnson, Joan Johnson, George Young, Florence Young, Harvey McBride and Janie McBride, are the assigns of Lura Derthick, their distant predecessor in title, who reserved the use of a certain roadway in a 1934 right-of-way deed to Azelia and Adah Lewis, appellees have the right to use the roadway. Appellees cross-appeal contending the chancellor erred in finding they had not acquired a prescriptive easement to the roadway and in holding that a gate across the roadway maintained by appellants was not a material interference with appellees’ use of the roadway. We affirm the chancellor’s decision as modified.
In 1934, Lura Derthick, appellees’ predecessor in title, conveyed to the Lewises, their heirs and assigns, a right of way for the purpose of a road across Mrs. Derthick’s land. The right-of-way deed provided “that Mrs. Derthick, her heirs and assigns shall be permitted to use said road herein conveyed. ... It is agreed that the terms, covenants and agreements contained herein shall extend to and be firmly binding on the heirs, executors, administrators or assigns of the parties hereto.” The Lewises owned the property adjacent to Mrs. Derthick, and the right-of-way deed for the road across the Derthick property gave the Lewises access from State Highway 23 directly to their property. Through the years, the Derthick property in its entirety was conveyed by warranty deed to various successors in interest. In 1963, Willis and Ruth Sutcliffe, who owned the Derthick property, conveyed a parcel of their land to appellees Young. The deed to the Youngs described the land conveyed in relation to “where Lewis Road intersects Highway No. 23.” In 1972, the Sutcliffes conveyed the first of two parcels of property to appellees Johnson. This deed described the land conveyed as “lying Southeast of the Adah Lewis road.” The next year, the Sutcliffes again sold a parcel of property to appellees Johnson, and the land conveyed was described as bounded by the Lewis road. In 1980, appellees Johnson sold a parcel of the land which they had purchased from the Sutcliffes to appellees McBride.
Through the years, the right of way granted by Lura Derthick to the Lewises was conveyed to various successors in interest and was purchased by appellants in 1979. In 1985, appellants obtained a quitclaim deed from Ruth Sutcliffe to her interest in the fee title to the road bed. Appellants have asserted that they now hold the unencumbered fee to the road bed on the ground that their right-of-way interest merged with their acquisition of the Sutcliffes’ fee interest.
In 1985, appellants erected a gate across the road near its intersection with Highway 23. Appellees then sued for an injunction requiring appellants to remove the gate and refrain from obstructing the road in any manner in the future and for a declaration that the road is a public road and that the appellees are entitled to a prescriptive easement, as well as an easement by necessity. At trial, the appellees introduced eighteen exhibits to establish a chain of title to the properties owned by the parties; these exhibits were admitted without objection. Much testimony was also taken as to the use of the roadway in question by the parties and the public.
In his order, the chancellor denied appellees’ complaint for a permanent injunction and held that appellees failed to prove that the roadway had been held in adverse possession by the general public or that the appellees had established a prescriptive right in the roadway. The chancellor found that there was no proof of notice of hostile use of the roadway by appellees. The chancellor further found that Mrs. Derthick’s reservation of the use of the road bed extended beyond her personal use for the use of the road by her heirs and assigns (appellees). The chancellor also held that the purchase by appellants of the legal title to the road bed did not deny the assigns of Lura Derthick the right to use the roadway and that the merger of appellants’ title was subject to the easement rights of appellees. The chancellor held that appellants have the right to maintain the roadway as long as they do not materially interfere with appellees’ enjoyment of the easement or place additional burdens on the adjoining landowners’ property and that the erection and maintenance of a gate across the roadway is permissible as long as it is well-maintained and unlocked.
In their appeal, appellants assert two points: (1) the chancellor erred as a matter of law when he concluded that appellees are the assigns of Lura Derthick because the reservation retained by Lura Derthick does not run to the abutting property now owned by appellees; and, (2) no evidence was introduced to reflect that appellees are in fact the assigns of Lura Derthick. In their cross-appeal, appellees argue (1) that the chancellor erred in holding that appellees failed to establish an easement by prescription; and, (2) the chancellor erred in holding that the erection and maintenance of the gate by appellants is not a material interference with appellees’ use and enjoyment of the roadway.
In deciding whether the chancellor erred in finding that appellees are the assigns of Lura Derthick and entitled to the benefit of the reservation created in her 1934 right-of-way deed to the Lewises, it is necessary to first review the type of reservation created and determine whether it was appurtenant to Mrs. Derthick’s land or in gross. “Since a reservation is the creation in behalf of the grantor of a new right issuing out of the thing granted, an easement appurtenant to the grantor’s remaining land may be created by reservation.” 25 Am.Jur.2d Easements and Licenses Section 21(1966).A reservation is a clause in a deed whereby the grantor reserves some new thing to himself, issuing out of the thing granted which was not in esse before. Parker v. Parker, 99 Ark. 244, 138 S.W. 462 (1911). In Fort Smith Gas Co. v. Gean, 186 Ark. 573, 577, 55 S.W.2d 63 (1932), the Arkansas Supreme Court stated: “It is the general rule that those covenants which are held to run with the land and to inure to the benefit of those succeeding in title to the grantee are such as generally aifect the land itself and confer a benefit on the grantor. ...” Clearly, the easement created by the reservation in the right-of-way deed was appurtenant to Mrs. Derthick’s land and was not for her personal use alone.
The next question must be whether the reservation inured to the benefit of Mrs. Derthick’s grantees in the various parcels of land conveyed to appellees, even though the reservation was not specifically conveyed to appellees in their deeds. Our review of the relevant law and facts leads us to conclude that the answer to this question must be in the affirmative:
Unless expressly excepted, a transfer of real property passes all easements appurtenant thereto although not referred to in the instrument of transfer, and whether the transfer is voluntary or involuntary. The term “appurtenances” is sometimes used for the conveyance of easements, but its use is not necessary to transfer an appurtenant easement.
25 Am.Jur.2d supra, at Section 95.
As a general rule, if the dominant tenement is transferred in separate parcels to different persons, each grantee acquires a right to use easements appurtenant to the dominant estate, provided the easements can be enjoyed as to the separate parcels without any additional burden on the servient tenement. Thus, where there is an easement of way appurtenant to a dominant tenement, the subsequent grantee of a part of such tenement has the right to use the way as appurtenant to his particular part.
25 Am.Jur.2d supra, at Section 96.
Where an easement is annexed as an appurtenance to land by an express or implied grant or reservation, or by prescription, it passes with a transfer of the land although not specifically mentioned in the instrument of transfer.
28 C.J.S. Easements Section 46 (1941).
Furthermore, those who succeed to the possession of each of the parts into which the dominant tenement may be subdivided, may also succeed to the appurtenant easements, unless otherwise provided by the terms of the conveyance.
28 C.J.S. Easements Section 46 (Supp. 1986).
In Warren v. Cudd, 261 Ark. 690, 550 S.W.2d 773 (1977), the Arkansas Supreme Court quoted 28 C.J.S. supra, Section 46 (1941) and stated that, if not specifically excluded, an easement appurtenant to a dominant tenement accompanies the dominant tenement in a transaction or instrument of transfer even if no mention of the easement is made. We therefore reject appellants’ assertion that the reservation did not pass by operation of law to appellees because their deeds did not specifically grant the reservation in the road. In Brandenburg v. Brooks, 264 Ark. 939, 576 S.W.2d 196 (1979), the Arkansas Supreme Court cited 25 Am.Jur.2d supra, Section 95 and stated that “a way of necessity over remaining lands of the grantor, created by implied grant upon the severance of land, being appurtenant to the granted land, passes by each conveyance to subsequent grantees thereof. . . .” 264 Ark. at 940. Accordingly, we conclude that the chancellor was entirely correct in holding that appellees are the assigns of Lura Derthick and entitled to the benefit of the reservation of the use of the roadway.
We do find that the chancellor erred in his finding that appellants own the fee title to the road bed where it is bounded by the property of appellees. Even if the purported merger had occurred, it could not foreclose appellees’ rights created by the reservation in Mrs. Derthick’s right-of-way deed. In their brief, appellants cite Massee v. Schiller, 243 Ark. 572, 420 S.W.2d 839 (1967) as support for their argument that they hold the fee to the road bed unencumbered. That case, however, does not stand for the proposition that the assigns of a distant grantor who reserved a right to use the right of way appurtenant to her land may have their interests foreclosed by such an acquisition on the part of appellants.
Additionally, we believe the evidence demonstrates that appellees own the fee title to the road bed where it adjoins their land. The Arkansas Supreme Court has held that, when a right of way is still in use, a conveyance extends to the center of the right of way unless a contrary intention is clearly stated. This principle applies to private as well as public roads and is in keeping with the public policy of discouraging separate ownership of narrow strips of land. Abbott v. Pearson, 257 Ark. 694, 520 S.W.2d 204 (1975). In McGee v. Swearengen, 194 Ark. 735, 742, 109 S. W.2d 444 (1937), the Arkansas Supreme Court stated that, where a conveyance of land bounded by a street or highway uses the expressions “bounded by,” “on,” “upon,” or “along,” such street or highway, it is generally held to indicate an intention to convey to the center thereof. We therefore hold that the deeds to appellees’ property, bounded by the Adah Lewis road, conveyed the fee simple to the center of such road bed. Accordingly, we modify the chancellor’s order to reflect this holding.
We also disagree with appellants’ assertion that appellees presented no evidence that they are the assigns of Lura Derthick and that, because appellees failed to plead in their complaint that they are the assigns of Lura Derthick, the chancellor erred in so finding. It must be remembered that appellees presented eighteen exhibits describing the relevant chains of title to the various pieces of property in question without objection on the part of appellants. The deeds reflected in these exhibits provide more than sufficient evidence of the appellees’ status as the assigns of Lura Derthick.
The fact that appellees failed to plead that they áre the assigns of Lura Derthick in their complaint is similarly not fatal to their cause. ARCP Rule 15(b) provides in part:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
See also Thompson v. Brown, 5 Ark. App. 111, 633 S.W.2d 382 (1982).
We also find no merit in appellees’ first point in their cross-appeal, in which they assert that the chancellor erred in holding appellees failed to prove the establishment of an easement by prescription. Upon appeal, we review the evidence in the light most favorable to appellee, and the trial court’s findings are sustained unless they are clearly against the preponderance of the evidence. First State Bank of Crossett, Arkansas v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984). The individual asserting an easement by prescription has the burden of proof to show by a preponderance of the evidence that use of the roadway has been adverse to the owner and his predecessors in title under claim of right for the statutory period. The determination of whether use of the roadway is adverse or permissive presents a fact question. Teague v. Raines, 270 Ark. 412, 605 S.W.2d 485 (Ark. App. 1980).
Some circumstance or act, in addition to, or in connection with, the use of the way, tending to indicate that the use of the way was not merely permissive, is required to establish a right by prescription. See Chapin v. Talbot, 13 Ark. App. 53, 679 S.W.2d 219 (1984). Some overt activity on the part of the user is necessary to make it clear to the owner of the property that an adverse use and claim is being exerted. Id. The mere permissive use of an easement cannot ripen into an adverse claim without clear action which would have placed the defendant on notice. See Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954). We agree with the chancellor in his finding that appellees’ use of the roadway in question had been permissive and affirm his finding in this regard as not clearly erroneous or clearly against the preponderance of the evidence.
The question of whether an easement is private or public is one of fact; such a finding will not be reversed if it is not clearly against a preponderance of the evidence. Hall v. Clayton, 270 Ark. 626, 606 S.W.2d 102 (Ark. App. 1980). Here, although there was testimony to the effect that Carroll County had graded the roadway in question in the past, there was also ample evidence that the County did not and never had considered the road bed in question to be a public road. In fact, it appears that, when the County graded the roadway in the past, it was at the request of the owners of the adjacent property. We do not find the chancellor’s finding that the roadway in question is not a public road to be clearly erroneous.
We also disagree with appellees in their assertion that the maintenance by appellants of an unlocked gate across the roadway materially interferes with appellees’ use of the roadway. Where land is subject to a prescriptive right of another to travel a designated route across the land, overlapping rights and conflicts of the parties are measured by the reasonableness of interference with the owners’ rights, a question which depends on the facts and circumstances of each case. Massee, supra. The owner of a servient estate may erect a gate across an easement if it is located, maintained and constructed so as not unreasonably to interfere with the right of passage. Hall v. Clayton, supra; see also Jordan v. Guinn, 253 Ark. 315, 485 S. W.2d 715 (1972). The chancellor’s findings in this regard will not be reversed unless they are clearly erroneous. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). Here, appellants presented evidence that, for some time, the roadway in question had been frequented by people at night as a “lovers’ lane” and that trash had been left along the roadway as a result. We do not find that the chancellor’s holding in this regard is clearly erroneous and affirm on this point.
Affirmed as modified.
Mayfield and Coulson, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellant, Donnell Johnson, was convicted in a jury trial of possession of cocaine with intent to deliver, and possession of marijuana with intent to deliver. He was sentenced to five years and four years respectively in the Arkansas Department of Correction, with the sentences to be served consecutively. On appeal, the appellant argues that the trial court erred in not suppressing the evidence which he contends was obtained by an illegal search.
At a hearing on appellant’s motion to suppress, Scott Timmons, a detective with the Little Rock Police Department, testified that he arrested the appellant on August 1, 1985, after receiving a telephone call from a confidential informant whom he had known for over one year and who had given him reliable information on five prior occasions. The informant told him that a black male name Donnell Johnson was at the intersection of Gilliam Park Road and Venice Court. The informant said Johnson was sitting in a metal folding chair by a gambling game and was wearing a black baseball cap, a black pullover shirt, Lee jeans, and white tennis shoes. The informant said Johnson had several papers of cocaine and several bags of marijuana concealed in a plastic bag which he had stuffed down his pants; that he was selling the cocaine and marijuana; and that he had a dark-colored revolver.
On the basis of that information, Timmons and several other members of the narcotics detail went to the location given by the informant. When they arrived, they found a gambling game in progress, as the informant had said, and a black male sitting in a folding chair, wearing the clothing described by the informant. The man said his name was Donnell, and Timmons testified this led him to believe that this was the man the informant had described. Timmons testified he made a frisk of the appellant to check for a weapon and to see if he had drugs on him. During the search, Timmons felt an object but could not determine what it was. He then unzipped the appellant’s blue jeans and could see a plastic bag stuffed in his underwear. Inside that bag were other clear plastic bags containing green vegetable matter. Timmons pulled the bag out and found it contained seven clear bags each containing what appeared to be marijuana, and a Kool cigarette package with six white folded papers containing what appeared to be cocaine. Timmons then arrested the appellant.
Appellant argues that Officer Timmons performed the search with the dual purpose of securing a weapon and drugs, thus exceeding the permissible scope of a “stop and frisk” and contrary to the holding of Terry v. Ohio, 392 U.S. 1 (1968). We do not address this particular argument because we uphold the search as a search incident to a lawful arrest.
On appeal, the legality of an arrest is presumed and the burden is on the appellant to establish its illegality. Freeman v. State, 6 Ark. App. 240, 640 S. W.2d 456 (1982). An officer may arrest a person without a warrant if he has reasonable cause to believe the person has committed a felony. Gaylor v. State, 284 Ark. 215, 681 S.W.2d 348 (1984); A.R.Cr.P. Rule 4.1(a)(i). Reasonable cause exists where facts and circumstances, within the arresting officer’s knowledge and of which he has reasonably trustworthy information, are sufficient within themselves to warrant a man of reasonable caution to believe that an offense has been committed by the person to be arrested. Gass v. State, 17 Ark. App. 176, 706 S.W.2d 397 (1986); Gaylor v. State, supra. Most courts agree there is no substantive distinction between the terms “reasonable cause” and “probable cause.” McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979); see also Commentary to Article IV following A.R.Cr.P. Rule 10.1.
In this case, the information giving rise to reasonable cause was obtained as a result of a confidential informant’s telephone call. In Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987), we noted that the test for probable cause sufficient to issue a search warrant based upon information supplied by an informant is based on the “totality of the circumstances.” See also Illinois v. Gates, 462 U.S. 213 (1983). In Mock, we said:
While the case at bar involves the existence of probable cause to support a warrantless arrest as opposed to the issuance of a search warrant, we think that the “totality of the circumstances” test provides a useful framework for analysis.... The veracity, reliability, and basis of knowledge of the informant are relevant considerations in the “totality of the circumstances” analysis. . . .
20 Ark. App. at 77-78.
Here, Officer Timmons testified he had known the confidential informant for over one year and had been given reliable information by him on five prior occasions. The informant told the officer that appellant was selling marijuana and cocaine, a felony under Ark. Stat. Ann. § 82-2617 (Supp. 1985); and when the officers went to the location provided by the informant, the information checked out. Under these circumstances, we think the officers had reasonable cause to arrest appellant without a warrant. See Draper v. United States, 358 U.S. 307, 313 (1959).
An officer making a lawful arrest may conduct a search of the person or property of the accused without a warrant, to protect the officer, the accused, or others; to obtain evidence of the commission of the offense for which the accused has been arrested; and to seize contraband or other things criminally possessed or used in conjunction with the offense. A.R.Cr.P. Rule 12.1. The search in this case clearly falls within the guidelines of Rule 12.1.
A search is valid as incident to a lawful arrest even if conducted before the actual arrest provided the arrest and search are substantially contemporaneous and there was probable cause to arrest prior to the search. Rawlings v. Kentucky, 448 U.S. 98 (1980); Horton v. State, 262 Ark. 211, 555 S.W.2d 226 (1977). Here, the “arrest followed quickly on the heels of the challenged search” of appellant’s person, see Rawlings, 448 U.S. at 111, and as soon as Timmons found the contraband.
Judged by these standards and based on the evidence of record, we conclude that reasonable cause to arrest the appellant existed prior to the challenged search, that the search and subsequent arrest were “substantially contemporaneous,” and that the trial court did not err in refusing to suppress the evidence.
Affirmed.
Corbin, C.J., and Coulson, J., agree. | [
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James R. Cooper, Judge.
This appeal concerns two civil suits brought by First National Bank in Stuttgart against Grand Prairie Leasing, Inc., and the appellant, Pulpwood Suppliers, Inc. These causes of action were based upon two notes executed by Grand Prairie to First National Bank which were secured by assignments of various lease agreements in which Grand Prairie was the lessor, and the appellant, Pulpwood Suppliers, Inc., was the lessee. The two cases were consolidated for trial, and the trial court entered judgment for the appellee, First National Bank. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in denying its motion to dismiss for improper venue; that there was no substantial evidence to support the trial court’s finding that, when Pulpwood Suppliers was notified of the assignment of the lease on a loader, the balance due under the lease was $26,610.56; and that the trial court erred in awarding the appellee judgment for the amount of the proceeds of the sale of leased vehicles taken as collateral, because the appellee bank had no perfected security interest in the vehicles. We find no error, and we affirm.
As noted above, this appeal is from judgments entered in two cases which were consolidated for trial. The appellant’s first and second points for reversal are based on Arkansas County Circuit Court case number CIV 81-239, involving the assignment of a lease for a Lucky Loader. The appellant’s third point arises out of case number CIV 81-240, which involved an assignment taken on seven vehicle leases.
With respect to case number CIV 81-239, the evidence shows that the appellant leased a Lucky Loader from Grand Prairie on March 14, 1979. On March 15, 1979, Grand Prairie executed a note to First National Bank in the amount of $36,868.80. This note was secured by an assignment of the lease of the Lucky Loader to the appellant. By June 4, 1980, the appellant was notified of the assignment; however, on June 13, 1980, the appellant purchased the Lucky Loader from Grand Prairie Leasing for $2,188.24. The appellant contends that this amount was the balance owed to Grand Prairie under the lease agreement.
In the second case tried below, Arkansas County Circuit Court number CIV 81-240, the evidence shows that Grand Prairie executed a note to First National Bank in the amount of $42,338.98. This note was secured by an assignment of seven separate lease agreements, under which Grand Prairie leased seven different vehicles to the appellant. On May 6, 1980, the appellant purchased two of those vehicles from Grand Prairie. On June 4, 1980, Pulpwood purchased the remaining five vehicles from Grand Prairie for the sum of $8,362.54.
As its first point for reversal, the appellant contends that the trial court erred in denying its motion to dismiss for improper venue in case number CIV 81-239. The appellee, First National Bank, filed that case in Arkansas County Circuit Court, seeking judgment against Grand Prairie Leasing, Inc.; Lloyd M. Sivils, chief officer of Grand Prairie Leasing; and the appellant, Pulpwood Suppliers, Inc. Both Grand Prairie Leasing and the appellant were Arkansas corporations. As support for its contention that venue in Arkansas County was improper, the appellant relies upon Ark. Stat. Ann. § 27-605 (Repl. 1979), which provides, in part, that an action against a domestic corporation “may be brought in the county in which it is situated, or has its principal office or place of business, or in which its chief officer resides.” The appellant’s principal place of business was Cleveland County. Lloyd M. Sivils, chief officer of Grand Prairie Leasing, resided in Jefferson County. The crux of the appellant’s argument is that, whereas Arkansas County had formerly been Grand Prairie Leasing’s principal place of business, at the time that this action was filed Grand Prairie Leasing no longer had a place of business and was, in fact, a defunct corporation, since its corporate charter had been revoked on November 24, 1980, almost one year prior to the commencement of this action. Thus, argues the appellant, neither of the defendant corporations had a principal place of business in Arkansas County at the time the action was filed, nor did the chief officer of either corporation reside in Arkansas County at that time, and the prerequisites for venue in Arkansas County under Ark. Stat. Ann. § 27-605 were therefore not met.
However, we do not reach the merits of the appellant’s argument, for we think that venue in Arkansas County was proper under Ark. Stat. Ann. § 27-621 (Repl. 1979), which provides that “ [a] n action on a debt, account, note, or for goods or services may be brought in the county where the defendant resided at the time the cause of action arose.” Because Grand Prairie Leasing had its principal place of business in Arkansas County when it defaulted on its note to the appellee and this cause of action arose, we hold that venue was properly in Arkansas County. See Zolper v. AT&T Information Systems, Inc., 289 Ark. 27, 709 S.W.2d 74 (1986).
Next, the appellant contends that the trial court’s finding that the balance due under the Lucky Loader lease was $26,610.56 when the appellant was notified of the assignment is not supported by the evidence. At trial, I.E. Moore, president of Pulpwood Suppliers, and Lloyd M. Sivils, president of Grand Prairie Leasing, testified that on June 4, 1980, the day that Pulpwood was notified of the assignment of the Lucky Loader lease, the balance due under that lease was $2,188.24. However, Jack Barber, an officer of First National Bank, testified that the balance due under the lease was $26,610.56. Mr. Barber based his testimony upon calculations he made, based on a payment formula set out in the lease agreement, and upon the assumption that the lease payments were up to date.
The findings of fact of a circuit judge sitting as the finder of fact will not be disturbed on appeal unless, considering the evidence in the light most favorable to the appellee, the findings are clearly erroneous or clearly against the preponderance of the evidence, giving due regard to the opportunity of the trial court to assess the credibility of the witnesses. Special Insurance Services, Inc. v. Adamson, 20 Ark. App. 8, 722 S.W.2d 875 (1987); ARCP Rule 52. In the case at bar, the appellee produced evidence of the existence of the lease agreement, the assignment of that agreement to the appellee, and the balance due under the terms of that agreement at the time that the appellant was notified of the assignment. The appellant, in turn, offered evidence to show that the balance due under the agreement had been greatly reduced by payment to Grand Prairie Leasing. Payment is an affirmative defense, ARCP Rule 8(c), and the burden of proving payment lies on the party asserting it. See Miles v. Teague, 246 Ark. 1288, 441 S.W.2d 779 (1969); Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984); 5A Corbin on Contracts § 1288 (1964). Under the circumstances presented by this case, and giving due regard to the opportunity of the trial judge to weigh the credibility of the appellant’s witnesses, both of whom were interested parties, we cannot say that the trial court’s finding was clearly erroneous.
The appellant’s final contention regarding case number CIV 81-239 is that the trial court lacked authority to award the appellee a judgment greater than $2,188.24. The appellant states that its purchase of the loader from Grand Prairie Leasing for that sum on June 13,1980, constituted a sale of the collateral, and argues that, under Ark. Stat. Ann. § 85-9-306 (Supp. 1985), the appellee’s recovery is limited to judgment against the debtor for the proceeds of the sale and a continuing lien on the collateral sold. We do not agree. In addition to having a security interest in the Lucky Loader itself, the appellee was the assignee of the appellant’s lease agreement with Grand Prairie Leasing. Moreover, the appellant had notice of the assignment of the lease agreement before it purchased the loader. Where the debtor had notice of the assignment, payment to an assignor, or discharge or release by him, is no defense to the claim of the assignee. Newton v. Merchants & Farmers Bank, 11 Ark. App. 167, 668 S.W.2d 51 (1984). Here, the assignment of the lease agreement was itself collateral in addition to the appellee’s security interest in the loader. Insofar as the lease agreement was concerned, there was no sale of the collateral in this case, because the assignor and the debtor were without power to interfere with the assignee’s interests by terminating the lease without the assignee’s authorization. Block v. Walker, 2 Ark. 4 (1839); see also Newton v. Merchants & Farmers Bank, supra; 6 Am. Jur. 2d Assignments § 112 (1963). Thus, Ark. Stat. Ann. § 85-9-306 did not limit the trial court’s power to award the appellee judgment for the amount due under the lease agreement at the time the appellant received notice of the assignment, because no sale or other disposition of the lease agreement itself occurred.
The appellant’s final point for reversal arises out of case number CIV 81-240, involving the assignment of seven vehicle leases between the appellant and Grand Prairie Leasing to the appellee. The argument advanced by the appellant, essentially the same as the foregoing contention treated above, is that the trial court erred in awarding the appellee judgment for the amount of the proceeds of the sale of the collateral, because the appellee had no perfected security interest in the vehicles. Again, we do not agree, because the vehicles were not the only collateral taken by the appellee: an assignment of the lease agreements was given as well. The appellant and Grand Prairie Leasing were unable to terminate the leases without the appellee’s consent for the reasons noted above. The trial court did not award the appellee judgment for the proceeds of the sale of the leases, because no sale or termination occurred. This point also lacks merit. See Block, supra, and Newton, supra.
Affirmed.
Cracraft and Jennings, JJ., agree. | [
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James R. Cooper, Judge.
The appellant, Lena Tamburo Purser, filed suit in chancery court against the estate of Grover C. Kerr alleging that she was entitled to one half of the estate, because of her services rendered and because of an alleged contract to make a will. She also filed a claim in probate court alleging entitlement to one half of the estate because she and Mr. Kerr allegedly were partners. The probate and chancery cases were consolidated for trial.
The trial judge found that she was not entitled to any of the estate of Mr. Kerr on any of the theories advanced. On appeal, the appellant argues that the trial court erred in finding that the evidence was insufficient to establish a contract to make a will; in finding that the evidence was insufficient to establish a partnership; and in finding that the evidence was insufficient to support an award based on unjust enrichment, implied contract, or quantum meruit. We hold that the trial court was correct in his findings and we affirm.
The appellant was widowed in 1950. In 1952 she met Mr. Kerr, and he resided with the appellant and her mother until her mother’s death. In 1973, Mr. Kerr built a home in which they resided together. They continued to live together until 1983. At that time, they had a misunderstanding about who was to pay certain income taxes. Although the appellant had moved into a separate house, the parties remained friendly until Mr. Kerr died on March 8, 1986.
During the entire time the parties lived together, and after their separation, they worked together in a business owned by Mr. Kerr. The appellant testified that they lived as man and wife, that she cooked and cleaned for Mr. Kerr even after the separation, that he paid most of the expenses, and that they worked together to build the business. The appellant stated that Mr. Kerr had promised that she would be taken care of if anything happened to him, and that Mr. Kerr promised her half of his estate. Mr. Kerr died intestate.
The appellant first argues that there was sufficient evidence from which the chancellor could find that Mr. Kerr had made an oral contract to make a will naming her as a beneficiary. The appellant argues that she performed her part of the contract by acting as a wife to Mr. Kerr and working in his business without pay, and that Mr. Kerr breached the contract when he died intestate.
In chancery cases we review the record de novo, but will not disturb the findings of the court unless clearly erroneous or against the preponderance of the evidence. Fletcher v. Long, 271 Ark. 942, 611 S.W.2d 779 (1981). In order to prove an oral contract to make a will, the evidence must be clear, cogent and convincing. Apple v. Cooper, 263 Ark. 467, 565 S.W.2d 436 (1978). The decision of the chancellor is necessarily based on the credibility of the witnesses, and we have said many times that the chancellor is in a better position to judge credibility than we are. Apple, supra.
The appellant testified extensively as to what her living arrangement had been with Mr. Kerr, and that Mr. Kerr had told her that he would provide for her. However, the only indication that Mr. Kerr had any intent to provide for the appellant after his death is found in receipts for certificates of deposit which were payable on death to the appellant, but which had been changed to remove the appellant’s name. According to the appellant, her name was removed from the certificates after their argument. The appellant further testified that the certificates had been purchased with both of their funds and that they had “split” them in 1983.
Several friends testified as to the living arrangement between Mr. Kerr and the appellant. Again, however, none of them was able to say that Mr. Kerr had expressly promised to make a will. One friend did testify that Mr. Kerr had told him he did not want his children to inherit, but that statement does not give rise to a presumption that Mr. Kerr intended the appellant to inherit.
The evidence will not support a finding that Mr. Kerr entered into an agreement with the appellant to make a will, what the terms of the agreement were, or that the appellant had performed her part of the bargain. We agree with the trial judge that no express contract was negotiated between the parties.
The appellant next argues that the trial court erred in finding that the evidence was insufficient to establish a partnership. We disagree.
When Mr. Kerr first met the appellant he was working in an auto parts business in Memphis, Tennessee. After Mr. Kerr moved to Helena, Arkansas, the appellant loaned him one hundred and fifty dollars to open his own business. The appellant worked in the Helena auto parts business and in a second auto parts store later. Eventually, an antique store was opened. It is undisputed that the appellant worked in all of the businesses, and she testified that she worked in the businesses for thirty-four years without any pay. At one point she testified that when items were bought for the business she bought “half and he bought half’; however, she later testified that Mr. Kerr handled all of the money and that he paid for the items. Various friends also testified that they frequently saw the appellant working in the business, that she helped to make decisions as to what was purchased, and that when referring to the business Mr. Kerr would use the words “we” or “Lena and I.”
The primary test of a partnership between parties is their actual intent to form a partnership. Gammill v. Gammill, 256 Ark. 671, 510 S.W.2d 66 (1974); Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S.W.2d 625 (1962). On the evidence presented in the case at bar, we simply cannot say that the trial judge erred in failing to find a partnership. Although they had a joint checking account, that was changed in 1983. None of the other property was owned jointly, and it is clear that after the appellant’s initial one hundred and fifty dollar investment, all of her funds were kept separate and apart from Mr. Kerr’s. Furthermore, even if a partnership had existed, it is clear that it was ended in 1983. After their argument regarding income taxes, all of their funds were divided. At one point, the appellant referred to this period of time as when “we dissolved the partnership.”
Finally, the appellant argues that she should have recovered from the estate for the thirty-four years she worked without pay, based on the equitable principles of unjust enrichment, implied contract or quantum meruit. However, all of these remedies are founded on an implied agreement to give reasonable value for services performed and the principle that it would be unjust to allow the party receiving the services to accept them without paying for them. See Frigillana v. Frigillana, 266 Ark. 296, 584 S.W.2d 30 (1979); Davis v. Hare, 262 Ark. 818, 561 S.W.2d 321 (1978); Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906 (1971).
In the case at bar it is clear that the appellant received consideration for her services. The appellant stated that Mr. Kerr would not allow her to spend her money, and that he invested and managed it for her. She lived in homes provided by Mr. Kerr and, as a result, was able to save and invest the monthly widow’s pension she received after her first husband’s death. While the appellant was working in the business for the past thirty-four years, Mr. Kerr, in return, provided for her and saw that she was taken care of. Furthermore, by the appellant’s own admission, when they separated in 1983 she received a share of the certificates of deposit they had purchased with monies generated by the businesses.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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Elizabeth W. Danielson, Judge.
Linda Hunt appeals from an order of the Fulton County Chancery Court reducing appellee Thomas Hunt’s child support obligation for the parties’ two minor children. We affirm.
The parties were divorced in May 1989, and in that decree, appellee was ordered to pay $160.00 every two weeks for the support of the children. That decree also incorporated an agreement of the parties requiring appellee to carry medical and dental insurance on the children. On September 3,1991, appellee filed a petition for modification of his child support obligation, alleging a change in circumstances because of his decreased ability to pay.
At trial, appellee testified that he is fifty-six years old and has worked for Union Pacific Railroad for over twenty years. He testified that, in 1989, his take-home pay was $18,280.79; in 1990, it was $18,488.86; and in 1991, he received a three percent increase in gross pay. Appellee testified that, at the time of the divorce, he was working in Yellville and living in Bexar, a distance of approximately fifty-five miles. In August 1991, the railroad transferred appellee’s headquarters to Branson, Missouri, and appellee now lives 140 miles away in Calico Rock, Arkansas. He stated that he does not drive back and forth each day but stays overnight and takes his meals at a motel in Branson from Sunday through Thursday. He stated that, at the time of the divorce, his 1988 Chevrolet four-wheel-drive truck was relatively new, but that it now has 111,000 miles on it and that its maintenance has become much more expensive. He stated that he needs to replace his truck and a new truck comparable to the one he now drives would cost him $287.02 for sixty months. Appellee admitted that he has not looked into the cost of a reliable, but less expensive, vehicle. Appellee introduced evidence that his weekly work- related expenses in 1989 were $122.50; in 1991, they were $279.40, including fifteen meals at $6.00 per meal and five nights at a motel. Because appellee’s position with the railroad is a “headquarter job,” he is not reimbursed by his employer for these expenses. He also introduced evidence that the cost of maintenance on his vehicle rose from $7.50 per week in 1989 to $25.00 per week in 1991. Appellee testified that, in 1989, medical and dental insurance on the parties’ children was provided by his employer but, in July 1991, appellee began paying $50.00 a month for this coverage. According to appellee, the increase in his travel and insurance expenses from 1989 to 1991 was $305.85 per month.
On cross-examination, appellee testified that he has a $9,500.00 savings account upon which he draws $500.00 to $600.00 interest per year but that he has had to withdraw $1,000.00 the past six months to meet expenses and obligations. In explaining why he maintains a home so far away from his work, appellee stated that he needs a place to stay on the weekends when he sees his children.
Appellant testified that she has recently changed jobs and brings home approximately $200.00 more per month than she did at her previous place of employment. Now, however, she pays $120.00 every two weeks for child care, and this new expense is more than the increase in her salary. She stated that she drives a total of forty miles to and from work each day in a 1983 Buick with 113,000 miles on it. She also testified that she helps support her oldest daughter, who is in college.
At the conclusion of the trial, the court took the case under advisement. On February 4, 1992, the chancellor entered an order in which he granted appellee’s request for a reduction in his child support payments and ordered him to pay $120.00 twice a month. This modification has reduced the amount of support appellant is receiving by $106.00 per month. Appellant has appealed from this reduction of appellee’s child support obligation and argues that the evidence does not support a finding of a change in circumstances.
A change in circumstances must be shown before a court can modify an order regarding child support, and the party seeking modification has the burden of showing a change in circumstances. Reynolds v. Reynolds, 299 Ark. 200, 201-02, 771 S.W.2d 764, 765 (1989); Ross v. Ross, 29 Ark. App. 64, 67, 776 S.W.2d 834, 835-36 (1989). The assumption is that the chancellor correctly fixed the proper amount in the original divorce decree. Id.
In determining whether there has been a change in circumstances warranting adjustment in support, the court should consider remarriage of the parties, a minor reaching majority, change in the income and financial conditions of the parties, relocation, change in custody, debts of the parties, financial conditions of the parties and families, ability to meet current and future obligations, and the child support chart. Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987). However, there is no hard and fast rule concerning the specific nature of the changed circumstances. Eubanks v. Eubanks, 5 Ark. App. 50, 632 S.W.2d 242 (1982).
Reynolds v. Reynolds, 299 Ark. at 202, 771 S.W.2d at 765. In making this decision, the chancellor must consider the needs of one party as compared to the ability of the other to pay. See McFadden v. Bramlett, 270 Ark. 850, 852, 606 S.W.2d 375, 377 (Ark. App. 1980).
A chancellor’s determination as to whether there are sufficient changed circumstances to warrant an increase in child support is a finding of fact, and this finding will not be reversed unless it is clearly erroneous. See Freeman v. Freeman, 29 Ark. App. 137, 139, 778 S.W.2d 222, 224 (1989).
In light of appellee’s testimony, we find sufficient evidence of a change in circumstances to uphold the chancellor’s reduction of child support.
Affirmed.
Rogers, J., concurs.
Mayfield, J., dissents. | [
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Per Curiam.
The appellee, Robert Gray, Sr., moves to dismiss the appeal filed by the appellant, Rhonda Kimble, on the grounds that Ms. Kimble did not timely file a notice of appeal in accordance with Arkansas Rule of Appellate Procedure 4(c). We agree with the appellee and dismiss the appeal.
Both parties agree that the order upon which this appeal is based was entered on June 15,1992, and that the appellant filed a Motion for a New Trial on June 16, 1992, in accordance with Arkansas Rule of Civil Procedure 59(b). The trial court did not act on the motion within thirty days and thus, it was deemed denied on July 16,1992, the thirtieth day after its filing. On that same day, July 16, the appellant filed her Notice of Appeal. The appellee, by his motion, contends that the Notice of Appeal was filed within the thirty-day jurisdiction of the lower court; there fore, it is not timely and should be dismissed.
We refer to Rule 4 to determine whether filing an appeal on the thirtieth day after the filing of a post-trial motion which was neither granted nor denied is timely. Rule 4(c) of the Rules of Appellate Procedure provides:
(c) Disposition of post-trial motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting or denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the thirtieth day. A motion of appeal filed before the expiration of the thirty-day period shall have no affect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the thirty-day period. No additional fees shall be required for such filing. [Emphasis- added.]
A part of the reporter’s notes to the foregoing rule provides:
Under Rule 4(c), a motion is deemed denied if the trial court neither grants nor denies the motion within thirty days of its filing, and, under Rule 4(d), the time for filing the notice of appeal begins to run at the end of that thirty-day period. If, however, an order granting or denying the motion is acted upon within the thirty-day period, the time for filing the notice of appeal begins to run upon entry of the order. [Emphasis added.]
In the appellant’s response to the motion to dismiss, she states that her Notice of Appeal was timely as it was filed on the day that the trial court lost jurisdiction, and Kelly v. Kelly, 310 Ark. 244, 247, 835 S.W.2d 869 (1992) would appear to support her argument. That case states:
Subsection (c) now explicitly provides that a notice of appeal is ineffective if it is filed prior to the date of the disposition of the post-trial motion, or, if no order is entered, prior to the date that the motion is deemed denied. [Emphasis ours.]
Nevertheless, the wording of the rule, and the reporter’s notes, make clear that when the trial court rules on the post-trial motion, a notice of appeal is timely when filed “upon entry” of that order. When the trial court fails to rule on the post-trial motion, the trial court retains jurisdiction of the matter until “the end,” or “expiration,” of the thirtieth day.
Because the appellant’s notice of appeal was filed on the thirtieth day, it is untimely and ineffective. The appellee’s motion is granted; the appeal is dismissed.
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John E. Jennings, Judge.
A Ouachita County jury found Ricky Edwards guilty of the second degree murder of Annie Christopher. The circuit judge, following the recommendation of the jury, sentenced Edwards to twenty years in the Department of Correction. For reversal Edwards makes three arguments: (1) that the jury’s verdict is not supported by substantial evidence; (2) that the court gave an incorrect instruction on second degree murder; and (3) that the court erred in excluding evidence offered to show the violent character of his brother, Billy Joe Weaver. We find no reversible error and affirm.
A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103(a)(l) (Supp. 1991). 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 result. Ark. Code Ann. § 5-2-202(2) (1987). When the sufficiency of the evidence is challenged on appeal, we affirm the jury’s verdict if it is supported by substantial evidence. Franklin v. State 308 Ark. 539, 825 S.W.2d 263 (1992). Substantial evidence is evidence 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. Wooten v. State, 32 Ark. App. 198, 799 S.W.2d 560 (1990). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Payne v. State, 21 Ark. App. 243, 731 S.W.2d 235 (1987). The fact that evidence is circumstantial does not render it insubstantial as the law makes no distinction between direct evidence of a fact and circumstances from which it may be inferred. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). While it is true that in the case at bar no motive for the killing was established, this does not necessarily render the evidence insubstantial. See Dowell v. State, 191 Ark. 311, 86 S.W.2d 23 (1935); Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). Purpose and intent are frequently not subject to proof by direct evidence and may be inferred from the facts and circumstances of the case. Furr v. State, 308 Ark. 41, 822 S.W.2d 380 (1992). In considering the sufficiency of the evidence on appeal, we view it in the light most favorable to the State. Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1992).
Annie Christopher, the victim, lived in a house in Stephens with her fifteen-year-old daughter, Kameka Smith, and other children. Kameka testified that sometime in the late evening hours of June 9,1990, her mother came home with the defendant, Ricky Edwards. Her mother went into her room to lie down and Edwards followed her. About five minutes later Kameka and others asked Edwards if they could use his car to go to the store to get ice cream and he agreed. Kameka and the others returned in about an hour. When Kameka entered her mother’s room she saw her mother on the floor with her head lying on the bed and the defendant lying in the bed, pretending to be asleep. When Edwards jumped out of bed Kameka saw blood on his pants. As Ms. Christopher was being taken to the hospital, Edwards said he did not want to go and Charles Baker, Kameka’s boyfriend, dropped Edwards off at his uncle’s house.
Baker’s testimony was similar to that of Kameka Smith. He also testified that the defendant would not help carry Ms. Christopher to the car until he was asked “four or five times.” Baker also testified that when Edwards jumped up out of bed he said, “I didn’t do it.” Another of Ms. Christopher’s children, Corey, heard the defendant say, “I hope I didn’t hurt that woman.”
Ms. Christopher bled to death from a severe stab wound in the arm. A kitchen knife was found underneath a window of the front room of the house. Deputy Lamar Nowlin investigated the incident. He testified that the defendant asked him if Annie Christopher had any cuts on her body. Edwards told Nowlin that he did not own a knife and that if the victim was cut it must have been when she was being transferred from the car to the pickup truck on the way to the hospital.
Ricky Edwards testified that he and Annie Christopher were both asleep in her room and that he knew nothing about the stabbing until he was awakened. The evidence in this case was circumstantial: no one saw the defendant stab the victim and no motive was established. Nevertheless, we hold that reasonable minds could reach the conclusion, without resort to speculation or conjecture, that the defendant did stab Ms. Christopher thereby causing her death. A defendant’s improbable explanations of incriminating circumstances are admissible as proof of guilt. Howard v. State, 283 Ark. 221, 674 S.W.2d 936 (1984).
Edwards next contends that the trial court erred in excluding proffered evidence as to the reputation for violence of Billy Joe Weaver, the defendant’s brother. Whether evidence is relevant is a decision within the sound discretion of the trial court. See Skiver v. State, 37 Ark. App. 146, 826 S.W.2d 309 (1992). Here, as the trial judge noted, there was no evidence to put Weaver at the Christopher house at the time of the stabbing. Furthermore, there was already in the record evidence that Ms. Christopher had lived with Weaver, that she had moved to a women’s shelter because he had beaten her, and, through the testimony of Charles Baker, that Weaver had a reputation for violence in the community. It is not reversible error to exclude evidence which is merely cumulative. Ark. R. Evid. 403; Graham v. State, 2 Ark. App. 266, 621 S.W.2d 4 (1981).
Finally, Edwards argues that the court’s instruction on second degree murder was reversible error. While we agree that the instruction given was incomplete, reversal is not required under the circumstances.
The defendant was charged with first degree murder and the court instructed on the lesser included offenses of second degree murder, manslaughter, and negligent homicide. The relevant portion of the court’s charge was as follows:
COURT’S INSTRUCTION NO. 9
Ricky Edwards is charged with Murder in the First Degree. This charge includes the lesser offenses of Murder in the Second Degree and Manslaughter, and Negligent Homicide.
You may find the defendant guilty of one of these offenses or you may acquit him outright.
If you have a reasonable doubt as to which offense the defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the defendant’s guilt of all offenses, you must find him not guilty.
COURT’S INSTRUCTION NO. 10
Ricky Edwards is charged with the offense of Murder in the First Degree. To sustain this charge, the State must prove the following things, beyond a reasonable doubt.
That with the purpose of causing the death of any person, Ricky Edwards caused the death of Annie Marie Christopher.
* * *
COURT’S INSTRUCTION NO. 12
If you have a reasonable doubt of the defendant’s guilt on the charge of Murder in the First Degree you will then consider the charge of Murder in the Second Degree.
COURT’S INSTRUCTION NO. 13
Ricky Edwards knowingly caused the death of Annie Marie Christopher under circumstances manifesting extreme indifference to the value of human life.
* * *
COURT’S INSTRUCTION NO. 14
If you have a reasonable doubt of the defendant’s guilt on the charge of Murder in the Second Degree you will then consider the charge on Manslaughter.
* * *
To sustain this charge the State must prove beyond a reasonable doubt that:
Ricky Edwards recklessly caused the death of Annie Marie Christopher.
* * *
COURT’S INSTRUCTION NO. 16
If you have a reasonable doubt as to the defendant’s guilt on the charge of manslaughter you will then consider the charge of negligent homicide. To sustain this charge, the State must prove beyond a reasonable doubt that Ricky Edwards negligently caused the death of Annie Christopher.
The court’s instruction number 13 should have begun. “To sustain this charge, the State must prove beyond a reasonable doubt . . . .” For reversal appellant quotes language from Weatherford v. Wommack, 298 Ark. 274, 766 S.W.2d 922 (1989):
The assumption of a disputed fact in a jury instruction is a prejudicial error. Even if one instruction does include the assumption of a disputed fact, it is not necessarily reversible error if another instruction leaves the fact question to be decided by the jury. [Citation omitted.]
In the case at bar the jury was given, in addition to the instruction set out above, the general instruction found in Arkansas Model Jury Instructions, Criminal 107 on the burden of proof and Arkansas Model Jury Instructions, Criminal 109 on the presumption of innocence.
The omission of the prefatory language in the court’s instruction on second degree murder was obviously inadvertent. Although the defendant offered a correct instruction, no specific objection was made to the court’s incomplete one. Under similar circumstances, the supreme court in Leonard v. State, 251 Ark. 1090, 476 S.W.2d 807 (1972), said:
We cannot say that appellant’s offered instruction constituted an objection to the omission he now complains of, because both the instruction given and the one offered were quite lengthy and covered the law governing numerous points. Such an offer does not adequately direct the court’s attention to the fault in the comprehensive instruction of which complaint is now made. In such cases, we have said that if the court’s mind had been directed to the specific fault, the language would have been changed to meet the objection. We can say the same here. If appellant believed that the instruction was subject to misconstruction on the question of the burden of proof, it was incumbent upon him to call particular attention to this possibility, and his request for an instruction did not have that effect. [Citations omitted.]
See also, Sammons v. State, 211 Ark. 532, 201 S.W.2d 37 (1947). The same reasoning applies in the case at bar.
For the reasons stated the judgment of the circuit court is affirmed.
Cooper, and Danielson, JJ., agree. | [
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Judith Rogers, Judge.
The child in this adoption case, B.A.B., was born on July 7,1988, to appellee Tanya B., who was a single person. Shortly after the child’s birth, Tanya married appellee, Scotty B. In 1990, it was established in a paternity action that John Dane L. was the child’s natural father, and in October of 1990, appellant Regina W., John Dane’s mother, was granted court-ordered visitation with her granddaughter one weekend a month. In November of 1990, Tanya joined Scotty in filing a petition for him to adopt the child. The court subsequently entered an order allowing appellant to intervene in the case. After a hearing, the probate judge granted the adoption after determining that the natural father’s consent was not necessary due to his failure to communicate with or support the child and upon finding that the adoption was in the child’s best interest. On appeal, appellant, the child’s paternal grandmother, argues that both of these findings are clearly against the preponderance of the evidence. We affirm the probate judge’s decision to grant the adoption.
Arkansas Code Annotated § 9-9-206(a)(2) (1987) provides in part that a petition to adopt a minor may be granted only if written consent is executed by a father who has “otherwise legitimated the minor according to the laws of the place in which the adoption proceeding is brought.” However, under Ark. Code Ann. § 9-9-207(a)(2) (1987), a parent’s consent is not required if it is found that “the parent for a period of at least one year has failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree.” There is a heavy burden placed upon the party seeking to adopt a child without the consent of a natural parent to prove the failure to communicate or the failure to support by clear and convincing evidence. Dale v. Franklin, 22 Ark. App. 98, 733 S.W.2d 747 (1987). As her first issue, appellant argues that the probate judge’s finding that the consent of John Dane was not necessary is clearly erroneous. Because we conclude that appellant lacks standing to raise this issue, we decline to address her argument.
In Quarles v. French, 272 Ark. 55, 611 S.W.2d 757 (1981), the supreme court held that grandparents who have been awarded visitation rights are entitled to intervene in adoption cases involving their grandchildren for the limited purpose of offering such evidence as may be relevant to the focal issue of whether the proposed adoption is in the best interest of the children. Later, in Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981), the court ruled that grandparents did not have standing to claim error in the trial court’s failure to appoint independent counsel for the natural parents in proceedings where their parental rights were terminated and their children were adopted by foster-parents. The court said:
Constitutional rights, including the guarantees of due process, are personal rights and may not be asserted by a third party. A very narrow exception exists where the issue presented to the court would not otherwise be susceptible of judicial review and it appears that the third party is sufficiently interested in the outcome that the rights of the other party would be vigorously asserted and, thus adequately represented. We agree that the issue of the children’s possible right to counsel would not otherwise be susceptible to judicial review, and therefore, we reach that issue as stated above. However, any right to counsel by the parents could be as well asserted by the parents themselves and would be easily reviewable had the parents joined in this appeal to claim such right, or had they remained as parties to the proceedings below. We therefore decline to recognize standing by these appellants to raise constitutional arguments on behalf of the parents, who themselves have declined to do so.
Id. at 302, 619 S.W.2d at 619-20 (citations omitted). By analogy, the court’s reasoning in Cox is applicable here. The right of natural parents with respect to the care, custody, management and companionship of their minor children has been described as a personal right. See Carroll v. Johnson, 263 Ark. 280, 565 S.W.2d 10 (1978). As one means of protecting this right, our laws afford a natural father who has legitimated a child the privilege of consenting to an adoption, unless it is found that his consent is excused. It is apparent that the question of a natural father’s consent is a matter that is personal to him. In this case, although the natural father filed an answer to the petition and declined to offer his consent to the adoption, he did not appear at the hearing and has not himself pursued an appeal of the probate judge’s decision. We hold that appellant does not have standing to question the probate judge’s decision on this issue.
Secondly, appellant contends that the probate judge erred in finding that the adoption was in the best interest of the child. Unlike the first issue, we do not question appellant’s standing to contest this finding. See Quarles v. French, supra.
A probate court may grant a petition for adoption if it determines at the conclusion of a hearing that the required consents have been obtained or excused and that the adoption is in the best interest of the child or individual to be adopted. Bemis v. Hare, 19 Ark. App. 198, 718 S. W.2d 481 (1986); Ark. Code Ann. § 9-9-214(c) (Supp. 1991). While this court reviews probate proceedings de novo on the record, we will not reverse a probate court’s decision regarding the best interest of a child to be adopted unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. In re Adoption of Perkins/Pollnow, 300 Ark. 390, 779 S.W.2d 531 (1989). In cases involving minor children a heavier burden is cast upon the court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children’s best interests. In the Matter of the Adoption of J.L.T., 31 Ark. App. 85, 788 S.W.2d 494 (1990). This court has no such opportunity, and we know of no case in which the superior position, ability, and opportunity of the probate court to observe the parties carries as great a weight as one involving minor children. Id.
At the hearing, Tanya testified that she had married Scotty ten days after the child’s birth and that Scotty’s name had been placed on the child’s birth certificate. She related that she and Scotty were presently attending college and were thus unemployed. She hoped that they would be better able to provide for their children with a college education. She said that she and Scotty had discussed their plans for college with her mother and Scotty’s parents, who all agreed to provide financial assistance while they were in school. In addition, she said that the cost of tuition and books were paid by federal grants and that they received HUD assistance and food stamps as well. Besides the child in question, she and Scotty have two other small children. She said that Scotty was the only father figure the child had ever known and that they had a normal father-daughter relationship. Tanya also explained that her previous reluctance to allow visitation with appellant was due to her fear of the child’s being around her natural father, who had a severe drug problem. She testified that if the adoption were granted she would allow appellant visitation with the child, even though she realized that she would be under no legal obligation to do so.
Scotty testified that he considered the child to be his daughter and felt that the adoption would strengthen their relationship. He said that he helps care for the child, as well as their other children. Scotty acknowledged that his work history had been poor since he was involved in a car accident in 1988. He said, however, that he was presently in good health and would probably work during the summer break from school. Scotty further testified that he would allow appellant to continue visitation with the child.
Scotty’s father, Lavaughn B., testified that he saw the children five, six and sometimes seven days a week. He said that he considered the child to be his granddaughter and that no distinction was made between the child in question and his other grandchildren. Lavaughn stated that the children were properly cared for, fed and clothed.
Dr. Michael Prince performed a psychological evaluation of the child at appellant’s request. It was his opinion that the adoption would be in the child’s best interest. He hesitated, however, to be entirely in favor of the adoption due to the relationship the child shared with appellant and her husband. He explained that, because of the closeness of this relationship, it would also serve the child to continue to have contact with appellant. He also felt that the loss of contact with appellant might cause the child anxiety and grief. Dr. Prince further testified though that the child deserved a “full-fledged” father and that it would be more devastating for the child to lose contact with Scotty than with appellant.
Appellant testified that she was opposed to the adoption because she loved her granddaughter and because she had little hope of maintaining contact with the child if the adoption were granted. She stated that she had a great relationship with the child and that they were very close. Appellant also informed the court that she had paid the medical bills associated with the child’s birth, including the cost of prenatal care, and that she had continued providing support for the child by purchasing her clothing, shoes and toys.
It is the appellant’s primary contention that the probate judge should have denied the adoption given the testimony of Dr. Prince that both the adoption and continuing contact with appellant would be in the child’s best interest. However, as the court in Quarles v. French, supra, recognized, it is for the probate judge in such cases to weigh the benefits flowing to children from the granting of an adoption, as opposed to disadvantages which may result from the severing of ties between grandparents and grandchildren. As shown by the probate judge’s comments, we are satisfied that the judge carefully considered these competing interests in making his decision. Based upon our de novo review, we cannot say that his decision was clearly against the preponderance evidence.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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Melvin Mayfield. Judge.
The Arkansas Department of Human Services (DHS) appeals from the order of the trial court which granted appellee Quinton Wayne Dearman’s motion to dismiss its “Petition for Emergency Custody” on the basis of collateral estoppel.
Quinton Dearman and his wife (now Oleta Colleen Brooks) were divorced by a decree entered April 22,1987. Custody of the parties’ two girls, J.D., born November 5, 1980, and K.D., born August 30,1984, was awarded to the father. On June 1,1990, the mother picked up the girls in accordance with a court order that increased her visitation rights to allow her a six weeks summer visitation, left the state with the children, and did not return until February 22,1991, some seven months after her visitation period had ended. Upon returning to Arkansas, the mother took J.D. to the Washington County Office of DHS where the child was interviewed by Darby Snell, a DHS investigator, with regard to allegations of sexual abuse reportedly committed by the father. After interviewing J.D., Darby Snell told the mother not to return the children to their father.
On February 25,1991, the father filed a motion for contempt of court against the mother for failing to return the children as ordered. The mother filed a counterclaim in which she alleged that the father had sexually abused J.D. and asked for change in custody or, in the alternative, for temporary custody pending the completion of an investigation of the matter.
At a hearing held March 21, 1991, on the father’s petition for contempt and the mother’s counterclaim, the court heard extensive testimony from the father, the mother, J.D., Darby Snell, and a deputy prosecuting attorney concerning the alleged sexual abuse issue. In an order entered April 2, 1991, the chancellor found the mother to be in contempt of court, ordered the children to be returned to their father, and dismissed the mother’s counterclaim on the finding that it was not supported by the evidence.
On April 21, 1991, DHS filed a “Petition for Emergency Custody” in the Juvenile Division of Washington County Chancery Court alleging the children were dependent/neglected. The affidavit of Darby Snell, which was attached to the petition, stated that J.D. was “scared at home” because her father had been dressing K.D. each morning and J.D. “is very uncomfortable that her father may do to her sister as he has done to her.” The affidavit alleges that J.D. said her father had intercourse with her “about one year ago.” On April 22, 1991, the juvenile court entered an ex parte order for emergency custody on the finding that there was probable cause to believe J.D. and K.D. were dependent/neglected children and ordered them placed in the custody of DHS pending further orders of the court.
On April 24, 1991, the father filed a motion to dismiss the DHS petition, and after a hearing at which Darby Snell testified and a transcript of the evidence taken in the chancery case was introduced, along with the pleadings and orders of that case, the court dismissed the petition upon a finding that the issue of sexual abuse by the father had been fully litigated in the contempt hearing held March 21,1991, had been determined in favor of the father, and that the DHS petition was barred by the doctrine of collateral estoppel.
In its first two arguments on appeal DHS argues the trial court erred in applying the doctrine of collateral estoppel because the issue litigated in chancery court was not the same issue as that sought to be litigated in juvenile court and because DHS was neither a litigant in chancery court nor in privity with the children’s mother. The Ozark Legal Services was appointed guardian ad litem for the minor children and has filed a brief which, essentially, makes the same argument made by DHS.
The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated by parties in the first suit. Toran v. Provident Life & Accident Ins. Co., 297 Ark. 415, 764 S.W.2d 40 (1989). It is based upon the policy of limiting litigation to one fair trial on an issue, Scogin v. Tex-Ark. Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984), and is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985).
In Newbern, Arkansas Civil Practice and Procedure, Section 26-12 at 262-63 (1985), the author, in discussing res judicata and collateral estoppel, quotes from Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983) as follows:
Under the doctrine of collateral estoppel, four criteria must be met before a determination is conclusive in a subsequent proceeding: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) that issue must have been actually litigated; (3)it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. . . . Thus, the application of collateral estoppel or issue preclusion is limited to those matters previously at issue which were directly and necessarily adjudicated. . . . However, both doctrines are applied only when the party against whom the earlier decision is being asserted had a “full and fair opportunity” to litigate the issue in question. [Citations omitted.]
In the instant case, the issue of appellee’s sexual abuse was raised by the mother in her counterclaim in chancery court. The court heard extensive testimony on the issue from the father and mother, from the child, J.D., and from the DHS investigator, Darby Snell. Based upon the evidence, the chancery judge found the allegations of the counterclaim were not supported by the evidence and the counterclaim was dismissed.
Nineteen days later, DHS filed its Petition for Emergency Custody based upon allegations of sexual abuse committed by the appellee. At the hearing on appellee’s motion to dismiss, Darby Snell, the DHS investigator whose affidavit accompanied the petition, testified that the allegations of sexual abuse litigated in chancery court were the same ones she was talking about in her affidavit; that there were no new allegations of sexual abuse committed by the father since the time of the chancery court hearing; and that the question of what happened to J.D. had been litigated in chancery court.
Therefore, we find the issue in both cases to be identical, i.e., whether or not the father sexually abused his daughter, J.D.; that this issue has been tried before and determined by a valid judgment; and that the determination of this issue was necessary to the judgment on the mother’s counterclaim.
The question of who may be bound by a judgment is considered in Freidenthal, Kane, and Miller, Civil Procedure § 14.9 (1985). In discussing the general issue underlying collateral estoppel, the authors state:
When an issue has been litigated fully between the parties, spending additional time and money repeating this process would be extremely wasteful. This is particularly important in an era when the courts are overcrowded and the judicial system no longer can afford the luxury — if it ever could — of allowing people to relitigate matters already decided.
Id. at 658. The authors also state that this doctrine applies only to persons who were parties or who are in privity with persons who were parties in the first action and that persons in a privity relationship are deemed to have interests so closely intertwined that a decision involving one necessarily should control the other. Id, § 14.13 at 682-83.
It has been suggested that privity is merely a word used to say that the relationship between one who is a party and another person is close enough that a judgement that binds the one who is a party should also bind the other person. Bruszewski v. United States, 181 F.2d 419 (3d Cir. 1950) (Goodrich, J., concurring). This is the view taken in 18 Wright, Miller, and Cooper, Federal Practice and Procedure § 4448 (1981) where it is stated:
As to privity, current decisions look directly to the reasons for holding a person bound by a judgment. This method should be adopted generally so that a privity label is either discarded entirely or retained as no more than a convenient means of expressing conclusions that are supported by independent analysis.
The Arkansas Supreme Court has said that privity within the meaning of res judicata means a person so identified in interest with another that he represents the same legal right. Spears v. State Farm Fire & Casualty Ins., 291 Ark. 465, 468, 725 S.W.2d 835 (1987). In Restatement (Second) of Judgments § 39 (1982) it is stated that “a person who is not a party to an action but who controls or substantially participates in the control of the present action on behalf of a party is bound by the determination of issues decided as though he were a party.” It has also been held that the identity of parties or their privies for res judicata purposes is a factual determination of substance, not mere form. People v. Tynan, 701 P.2d 80, 83 (Colo. Ct. App. 1984). Accord Watts v. Swiss Bank Corporation, 27 N.Y.2d 270, 265 N.E.2d 739 (1970).
In Moore v. Hafeeza, 515 A.2d 271 (N.J. Super. Ct. Ch. Div. 1986), the mother of a child born out of wedlock was held to be in privity for purposes of res judicata and collateral estoppel with the county board of social services which had brought an earlier paternity and support action. The court said:
The underlying purpose of the modern rule is fundamental fairness and common sense. Courts everywhere are being deluged with law suits and the necessity to reduce the volume of litigation must be considered so long as we do not adopt a constitutionally flawed rule which subverts fairness in a due process sense. Thus, it appears to be the modern rule that privity should be applied when:
1. The claim of the nonparty is based on the same transaction or occurrence,
2. The interests of both claimants are similar and no adverse interests exist,
3. The nonparty had notice of the earlier action, and
4. The nonparty did or had an opportunity to participate or intervene in the earlier case.
515 A.2d at 274.
And in Department of Human Services v. Seamster, 36 Ark. App. 202, 820 S.W.2d 298 (1991), it was held that where the child’s mother had brought a paternity action against the appellee in compliance with the statutes then in effect, and it was clear that she brought that action to obtain support for the child, the trial court properly found the action brought by DHS, which was also brought to obtain support for the child, was barred by res judicata.
In the present case both the mother’s counterclaim and DHS’s Petition for Emergency Custody are based on allegations of sexual abuse. There is an identity of interest between the mother and DHS in that both seek to prove allegations of sexual abuse against the father of the children, to remove them from his custody, and to protect the best interests of the children. DHS had notice of the earlier action and the opportunity to participate. Indeed, the mother testified that Darby Snell and her supervisor, Janet Richardson, told her that for the best interest of the children they should not be returned to their father. Ms. Snell testified in both chancery court and juvenile court as to the allegations of sexual abuse. And, at the hearing on the father’s motion to dismiss, Ms. Snell testified that without these allegations DHS would not have brought the Petition for Emergency Custody and would not have been interested in bringing a dependency/neglect case against the mother. Moreover, it was only after the chancery court failed to remove the children from appellee’s custody that DHS decided to file its petition for custody.
Therefore, we find the relationship between the mother and DHS sufficient to bar DHS, under the principle of collateral estoppel, from maintaining this action. Collateral estoppel or issue preclusion is not the same concept as res judicata or claim preclusion. Toran v. Provident Life & Accident Ins. Co., supra. The record clearly supports the trial judge’s finding that the issue in this case is the same issue litigated on the mother’s counterclaim in the case in chancery court. The record also clearly shows that in both cases, under the modern view of privity, the relationship between the mother and DHS in the attempt to remove the custody of the two girls from their father was so closely intertwined that the mother and DHS were in privity and are each bound by the chancery court judgment.
Appellant also argues juvenile court is required by Ark. Code Ann. § 9-27-315(a) (1987) to hold a probable cause hearing. That statute provides:
Following the issuance of an emergency order removing the custody of a juvenile from a parent, guardian, or custodian, the court shall within five (5) business days of the issuance of the ex parte order, hold a hearing to determine if probable cause to issue the emergency order continues to exist.
Assuming without deciding that the court was required to hold a probable cause hearing, we think that requirement was satisfied by the hearing held on appellee’s motion to dismiss.
Affirmed.
Jennings and Danielson, JJ., dissent. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Arkansas Board of Review that denied appellant’s claim for extended unemployment benefits. The appellant is not represented by an attorney, and neither party has filed a brief. Nevertheless, we have given this matter careful attention and issue this opinion in an attempt to bring a degree of clarity to a somewhat complex situation.
In the first quarter of 1991, the appellant filed a claim for regular unemployment compensation benefits. His claim was denied by the Arkansas Employment Security Division on a finding that appellant was discharged from his last work for misconduct in connection with the work. That decision was appealed to the Appeal Tribunal which held appellant was discharged for misconduct under the provisions of Ark. Code Ann. § 11-10-514 (Supp. 1991) and that he was disqualified for benefits “for eight (8) weeks of unemployment, as defined in Ark. Code Ann. § 11-10-512.” This decision was affirmed by the Board of Review, and there was no appeal from that decision.
Under the provisions of Ark. Code Ann. § 10-10-512(b) (1987), a week of disqualification “shall be satisfied” by either a week of unemployment or by a week of employment during which the employee has “earnings in an amount equal to his weekly benefit amount.” At the hearing on the claim filed in the case now before us, held on January 6, 1992, it was established that the appellant had satisfied the eight-week disqualification and then filed a new claim. That claim was for regular benefits, and appellant was paid those benefits until they were exhausted. After that, appellant was still unable to find work; therefore, he filed a claim for extended benefits.
Extended benefits are governed by Ark. Code Ann. §§11-10-534 thru 544 (1987 & Supp. 1991). A provision of these extended benefits sections, which has been in effect for several years, Ark. Code Ann. § 11-10-543(h) (1987), provides as follows:
An individual shall not be eligible to receive extended benefits with respect to any week of unemployment in his eligibility period if the individual has been disqualified for regular benefits under this law because he voluntarily left work, was discharged for misconduct, or refused an offer of suitable work unless the disqualification imposed for such reasons was satisfied with employment.
We have had an occasion to deal with this provision before. See Dozier v. Everett, Director, 9 Ark. App. 247, 657 S.W.2d 567 (1983). The provision at that time was compiled as Ark. Stat. Ann. § 81-1124(k)(8) (Supp. 1983), and we clearly pointed out that our statutes provided that one who is disqualified by misconduct (with certain enumerated exceptions) from receiving regular benefits for a certain period may satisfy the disqualification by work for the required period or, if unable to find work, by forfeiting the benefits for that period to which the individual would otherwise be entitled. But, we said, under Ark. Stat. Ann. § 81-1124(k)(8) (now Ark. Code Ann. § 1 l-10-543(h)), such a worker can satisfy the penalty disqualification for extended benefits only by employment for the required period and amount.
Therefore, the decision of the Board of Review was correct in the case now before us. However, because the appellant has filed a pro se response to the appellee’s answer to appellant’s notice of appeal in which the appellant asks how Arkansas can hold he is not eligible for “emergency benefits” to which the “Federal Government” says he is eligible, we explain the matter in more detail.
In 76 Am. Jur. 2d, Unemployment Compensation § 1 (1992), it is said that “state-imposed unemployment insurance . . . exists pursuant to a federal-state scheme of unemployment insurance legislation represented by the Federal Unemployment Tax Act and the complimentary state statutes enacted pursuant to the inducement of the Federal Act.” The discussion in Am. Jur. points out that apart from the “minimum standards” prescribed by the Act it “leaves to state discretion the rules governing the administration of unemployment compensation programs.” See id. § 4 at 748. It is also explained that while the terms and conditions of the Federal Unemployment Tax Act require federal approval of state statutes as a condition of participation “the Act leaves to every state full liberty to accept or reject, and to withdraw at any time after acceptance and to have returned the state’s unexpended share of the federal unemployment trust fund.” Id. § 23 at 767. Thus, it is said “the Act is not void as involving coercion of the states.” Id.
The Federal Unemployment Tax Act can be found in 26 U.S.C. §§ 3301 thru 3311 (1988). See also 26 U.S.C.A. §§ 3301 thru 3311 (West 1989 & Supp. 1992). Section 3304(a)(ll) provides that “extended compensation shall be payable as provided by the Federal-State Extended Unemployment Compensation Act of 1970.” The 1970 Act is Title II of Pub. L. No. 91 -373, 84 Stat. 708 (1970). Section 202(a) of that Act was amended by Title X of the Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, 94 Stat. 2599 (1980), to provide:
(4) No provision of State law which terminates a disqualification for voluntarily leaving employment, being discharged for misconduct, or refusing suitable employment shall apply for purposes of determining eligibility for extended compensation unless such termination is based upon employment subsequent to the date of such disqualification.
Pub. L. 96-499, § 1024, 94 Stat. 2599 (1980) at 2659.
The extended benefits sought by the appellant in this case are apparently made available by Title I of the Emergency Unemployment Compensation Act of 1991, Pub. L. No. 102-164, 105 Stat. 1049 (1991), which provides that a State may enter into an agreement with the Secretary of Labor of the United States under which the State may make payments of emergency unemployment compensation to individuals who have exhausted their rights to regular compensation under State law. That Act, however, specifically provides that “the terms and conditions of the State law which apply to claims for extended compensation and to the payment thereof shall apply to claims for emergency unemployment compensation and the payment thereof, except where inconsistent with the provisions of this Act. . . .” Id. Section 101 (d)(2). We find nothing in that Act which is inconsistent with the provisions for extended benefits in the Arkansas Employment Security Law.
Thus, under the federal-state scheme of unemployment insurance legislation, the provision in our state law requiring an individual who has been disqualified for regular unemployment benefits (as was the appellant in this case) to satisfy that disqualification with employment in order to become eligible for extended benefits is not only authorized, but is encouraged, by the law of the federal government. It is, however, the law of Arkansas which prevents the appellant in this case from being eligible for the extended unemployment benefits which he is seeking.
Affirmed.
Cooper and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
This is a workers’ compensation case. The Administrative Law Judge’s decision awarded the appellant 15 percent permanent disability to the body as a whole, based upon a 10 percent anatomical impairment to the body as a whole, plus an additional 5 percent impairment of wage-earning capacity. The opinion of the Chairman of the Commission reversed the law judge’s decision and dismissed the claim. Another Commissioner concurred, and the third Commissioner dissented. Each Commissioner wrote a separate opinion.
The first issue is whether the evidence will satisfy the requirements of Ark. Code Ann. § 1 l-9-704(c)(l) (1987), which provides that “any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical and mental findings.”
We think it will be helpful to begin our discussion by looking at the circumstances under which the above provision became a part of our “Workers’ Compensation Law.” The provision was added to our law by Act 10 of the Secondary Extraordinary Session of 1986. Section 10 of that act amended “Subsections (b) and (c) of Section 23 of Initiated Measure No. 4 of 1948, as amended, the same being Arkansas Statutes Annotated § 81-1323(b) and (c).” Section “c” was amended to read as follows: (The emphasized portion was added by the 1986 amendment.)
(c) Evidence and Construction. (1) At such hearing the claimant and the employer may each present evidence in respect of such claim and may be represented by any person authorized in writing for such purpose. Such evidence may include verified medical reports which shall be accorded such weight as may be warranted from all the evidence of the case. Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical or mental findings. (2) When deciding any issue, administrative law judges and the Commission shall determine, on the basis of the record as a whole, whether the party having the burden of proof on the issue has established it by a preponderance of the evidence. Administrative law judges, the Commission, and any reviewing courts shall construe the provisions of this Act liberally, in accordance with the Act’s remedial purposes. In determining whether a party has met the burden of proof on an issue, administrative law judges and the Commission shall weigh the evidence impartially and without giving the benefit of the doubt to any party.
The above section has now been codified as Ark. Code Ann. § 1 l-9-704(c)(l)-(9) (1987). Before examining the language involved in this case, we note that the amendment specifically provides that the provisions of the Act shall be construed liberally in accordance with the Act’s remedial purposes.
The opinion of the Chairman of the Commission contains a extended discussion of the requirement for objective physical or mental findings. It states that findings based solely on complaints of pain are purely subjective and insufficient but that diagnoses developed by physicians based on results obtained from clinical tests which reveal consistent and repeated responses to specific stimuli “fall toward the objective end of the continuum.” At this point the opinion points out that “many conditions can only be diagnosed by such clinical tests, and by excluding findings based upon all such clinical tests claimants who suffer from such conditions are absolutely excluded from receiving permanent disability benefits.” The opinion then notes that the term “objective” is subject to different interpretations, and states “with regard to the objectivity of symptoms, the term means perceptible to persons other than an affected person.” Webster’s New Collegiate Dictionary 791 (1973) is cited as authority for that definition. The opinion then expresses the belief that the legislature “used the term ‘objective’ to assure consistency in findings of permanent disability and to eliminate malingering.” The opinion adds:
However, we cannot conclude that the Legislature intended to exclude universally accepted diagnostic clinical evaluation or measuring procedures which yield consistent results on repeated trials under carefully controlled conditions. To reach any other conclusion would mean that the Legislature intended to eliminate entire classes of physical conditions from receiving the compensation provided for under the Act merely because the condition is not confirm-able by a specific type of test, and it is inconceivable that the Legislature intended such a result especially where the condition is confirmable by tests which are routinely and consistently relied upon by the medical profession and where the accuracy and dependability of the procedure is not disputed in the medical profession. Moreover, many of these conditions are just as disabling, if not more so, than many conditions which are confirmable by tests which do not require a response from the claimant. Consequently, to find that injured employees suffering from such conditions are totally excluded from ever receiving permanent disability benefits simply because their condition is confirma-ble by a test accepted without question by the medical profession but not this Commission would result in disparate treatment of entire classes of injured employees.
Although the concurring opinion agrees with the result reached by the opinion of the Chairman, the concurring Commissioner expresses the “fear” that the principal opinion could be seen as a retreat from the legislative mandate requiring that permanent disability be supported by objective and measurable physical findings. (At this point we are only considering the term “objective,” leaving the term “measurable” for a later discussion in this opinion.)
This court has already considered the “objective” requirement in the cases of Taco Bell v. Finley, 38 Ark. App. 11, 826 S.W.2d 213 (1992), and Reeder v. Rheem Manufacturing Co., 38 Ark. App. 248, 832 S.W.2d 505 (1992). In Taco Belize said the word “objective” means “based on observable phenomena,” and we cited The American Heritage Dictionary 857 (2d College ed. 1982) as our authority. We said that dictionary also gives a specific medical definition: “Indicating a symptom or condition perceived as a sign of disease by someone other than the person afflicted.” We then said “under either definition, in our view, observations made by a doctor as a result of range of motion tests qualify as ‘objective physical findings.’ ” We also said that the Commission was not prohibited by Ark. Code Ann. § 11-9-704(c) from considering “the claimant’s testimony about her symptoms, including pain, and the effect of activity on those symptoms” so long as the record contains objective and measurable findings to support the Commission’s ultimate determination. And in Reeder we said:
It is apparent that the word “determination” as used in the statute might refer either to a determination of impairment made by a doctor or to one made by the Commission. The Commission took the view that unless the doctor’s opinion as to permanent impairment was expressly based on objective and measurable physical findings, it was unworthy of consideration. We think that the word “determination” as used in the statute refers to the Commission’s determination of physical impairment. The statute prohibits such a determination unless the record contains supporting “objective and measurable physical or mental findings.” Our view is closer to the position taken by the dissenting commissioner: “The statute precludes an award for permanent disability only when it would be based solely on subjective findings.”
38 Ark. App. at 251 (emphasis supplied).
Because of the number of cases now reaching us in which the requirement of “objective” physical or mental findings is involved, we have looked to other states for possible guidance in the meaning and application of this requirement.
Louisiana has a statute, La. Rev. Stat. § 23:1317, which provides that workers’ compensation payments are for “such injuries as are proven by competent evidence, of which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.” See Abshire v. Dravo Corp., 396 So. 2d 521, 523 (La. Ct. App. 1981). This case explained the meaning of the Louisiana statute by quoting from Drummer v. Central Pecan Shelling Co., 366 So. 2d 1333 (La. 1978), as follows:
In interpreting the statutory language this Court has indicated that “objective conditions or symptoms” have a broad meaning, including “symptoms of pain, and anguish, such as weakness, pallor . . . sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition . . . .” Accordingly, the objective conditions or symptoms required by the statute are not limited to symptoms of an injury which can be seen or ascertained by touch. Moreover, there need not be a continued exhibition of objective symptoms to entitle the employee to compensation if the injury complained of is causally connected with the original accident.
366 So. 2d at 1335 (citations omitted).
The State of Missouri has a statute, Mo. Rev. Stats. § 287.020[2] (1965), which defines the word “accident” as used in its workers’ compensation law as “an unexpected or unforseen event happening suddenly and violently, with or without human fault and producing at the time objective symptoms of an injury." (Emphasis added.) In Todd v. Goostree, 493 S.W.2d 411 (Mo. Ct. App. 1973), the court said “objective symptoms . . .. are not limited to external wounds, bruises, and the like which can be seen or ascertained by touch, but include as well all involuntary expression of pain or distress, such as weakness, faintness, pallor or sickness, indicating a deleterious change in the body condition.” 493 S.W.2d at 417. In an earlier case, Schroeder v. Western Union Telegraph Co., 129 S.W.2d 917 (Mo. Ct. App. 1939), the court said:
The word “objective” has been defined medically to mean “perceptible to persons other than the patient.” Webster’s New Internad. Dictionary. The term “objective symptoms” has been held to mean those symptoms which a surgeon or physician discovers from ah examination of his patient, while “subjective symptoms” are those which he learns from what his patient tells him. The “crazy” actions and irrational “talk” of the claimant on the morning after he received the blow on the head were all . “objective symptoms” of insanity following the injury arising out of and in the course of his employment.”
129 S.W.2d 922 (citations omitted).
In Sandel v. Packaging Co. of America, 211 Neb. 149, 317 N.W.2d 910 (1982), the Nebraska Supreme Court construed a provision in the workers’ compensation law of that state which defined “accident” as did the statute in Missouri. The Nebraska court said that “symptoms of pain; and anguish, such as weakness, pallor, faintness, sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition may constitute objective symptoms as required by the statute.” 317 N.W.2d at 915-16. The court also said, in reference to the evidence before it, “No one can reasonably argue that a swollen arm and the inability to move the arm so as to be able to perform one’s work, together with apparent signs of pain and discomfort requiring medical attention, are not objective symptoms of an injury.” 317 N.W.2d at 916.
Looking at the record in the instant case, we note that it was stipulated that appellant had sustained a compensable injury to her chest on May 2,1988. She testified that after being off a short time she returned to work, and in July 1988, while trying to pull some big shelves apart, she again injured her chest. She was off another couple of days and returned to light duty for four weeks. She injured her chest for the third time just before Christmas that year and, at the time of the hearing on September 25, 1990, had not returned to work.
The appellant testified that she was 43 years old and had a ninth-grade education. Although she once worked, for a short period, as a bank teller, appellant testified she had mainly worked at factory jobs. She said she continues to suffer severe pain with only slight physical exertion and often goes to the emergency room for a shot when her medication does not relieve the pain. According to appellant, the problem is with her right side and she is right-handed; she cannot use her right arm to cook or mop the floor without having pain for several hours afterward; before her injury she enjoyed painting pictures on saw blades and pieces of wood, but she no longer can even do that very well because her arm shakes.
Dr. Randy D. Roberts, a rheumatologist, saw appellant in February of 1989, on referral by another doctor, and diagnosed appellant’s condition as “Chest wall syndrome with injury to the costochondral junctions.” In a letter to appellant’s attorney, dated February 28,1989, Dr. Roberts stated that appellant “will qualify for a 10 percent permanent partial disability rating based on pain and problems using her upper extremities for any lifting or repetitive activity which exacerbates her discomfort.” Subsequently, in a letter to appellee’s attorney, Dr. Roberts again rated appellant at 10 percent permanent partial disability and recommended that she not be returned to her former job. He stated, “I reviewed ‘light’ duties at Darling and could seem to find nothing that was light enough that she could manage with this present condition.”
Dr. Hugh Franklin Burnett, a general, thoracic, and vascu lar surgeon, testified by deposition that, at the request of the appellee’s insurance carrier, he reviewed appellant’s records and x-rays and examined her to provide another opinion relative to her symptoms, complaints, findings, and injury. He said it was his opinion that appellant had a costochondritis or inflammation of the cartilages which attach to the sternum and/or muscle strain associated with this.” When asked if this was an objective finding or was based upon appellant’s subjective complaints, Dr. Burnett stated:
It relies on both. The fact that she historically had recurrent pain in the anterior chest wall, particularly along either side of the sternum, perhaps, more so on the right than on the left. But in addition to that, the objective finding that there was tenderness over the costal cartilages on either side.
Dr. Burnett also said he had “no reasons to disagree with” Dr. Roberts’ opinion that appellant had a 10 percent permanent partial disability rating.
Based upon the evidence and his interpretation of the meaning of the requirement of “measurable physical or mental findings” the opinion of the Chairman of the Commission states “the claimant in the present case failed to establish that the findings are measurable. Therefore, the findings fail to satisfy the second prong of the test . . . .” Since one Commissioner concurred with the Chairman’s opinion and one Commissioner dissented on the basis that there were findings “not only objective but measurable as well,” it is clear that all three commissioners agree that there were “objective findings” of permanent anatomical impairment. We think the law on the “objective” requirement as stated in the Chairman’s discussion is generally correct. It is not, in general, at odds with what this court has previously held in the Taco Bell and Reeder cases. Moreover, it is not, in general, at odds with the cases we have discussed from Louisiana, Missouri, and Nebraska. So, without embracing every statement in the Chairman’s opinion regarding the meaning of the phrase “objective finding,” we affirm the Commission’s decision on the law and the facts as to the “objective findings” requirement. However, we do not agree with the majority of the Commission on its decision as to the “measurable findings” requirement.
As we have already stated in this opinion, when considering the requirement that “any determination of physical impairment shall be supported by objective and measurable physical or mental findings,” we think the word “determination” refers to the Commission’s determination. Reeder, supra. In making that determination, the opinion of the Chairman of the Commission states that the basis of Dr. Roberts’ rating of a 10 percent anatomical impairment “is not readily apparent.” The opinion states that Dr. Roberts said his rating was based upon the appellant’s pain and problems using her upper extremities for any lifting or repetitive activity which exacerbates her discomfort. The Chairman’s opinion says that “while loss of use of the upper extremities may be measurable, there is no evidence explaining how he used these factors to obtain the rating that he assigned.” “Consequently,” the opinion states, “we find the Claimant failed to prove. . . that she sustained any permanent impairment since she failed to establish that the findings that she presented were measurable.”
In the first place, we point out that the reasoning relied upon in the Chairman’s opinion as to the “objective findings” requirement — that the legislature did not intend to exclude injured employees from ever receiving permanent disability benefits simply because their condition is not confirmable by a test accepted by the medical profession but not by the Commission — is equally applicable to the “measurable findings” requirement. In light of the statutory requirement that the provisions of the Act shall be construed liberally in keeping with its remedial purposes, we think it is error to require a standard of measurability greater than the standard of objectivity. Surely if there are sufficiently objective findings upon which the doctor can make a diagnosis and give treatment, the Commission should not refuse to consider the doctor’s findings as to the extent of physical impairment simply because the doctor cannot make a precise measurement of that impairment.
In the second place, we cannot be sure that the Chairman’s opinion correctly defined the term “measurable.” His opinion simply states that “measurable obviously means-capable of being quantified in some sense.” Although the opinion does not say what “in some sense” means, we do not think it means in a “precise” sense. Webster’s Third New International Dictionary (Unabridged) (1976) gives one definition of “measurable” as “great enough to be worth consideration.” Just as the cases we have cited hold that objective symptoms are not limited to those that can be seen or ascertained by touch, we do not think measurable findings have to be precise. We also do not think that doctors are confined to any specific chart or guideline in making their evaluation of the existence or extent of physical impairment. The State of Oklahoma has a a statute, Okla. Stat. Ann. tit. 85 § 3(11) (1991), which requires “except as otherwise provided herein,” that any examining physician shall only evaluate impairment in accordance with the latest publication of The American Medical Association’s “Guides to the Evaluation of Permanent Impairment” in effect at the time of the incident for which compensation is sought. See Davis v. Goodrich, 826 P. 2d 587 (Okla. 1992) (medical report which evaluates permanent impairment in workers’ compensation cases must comply with statutory guide.) Had the Arkansas Legislature wanted to prescribe definite guidelines for use in evaluating the extent of physical impairment it could have done as Oklahoma did in that regard.
We agree with the opinion of the dissenting Commissioner that measurable findings may involve the extent, degree, dimension, or quantity of the physical condition. In this case there is evidence from the records of Dr. Roberts that appellant suffered from chest wall syndrome with injury to the costochondral junctions and a possible decreased grip in the right hand. The records of Dr. Roberts also report that palpation of the appellant’s “chest revealed marked tenderness in the Costochondral junctions bilaterally particularly on the right at 3,4 and 5, and on the left at 1,2 and 3.” Dr. Burnett, who examined the appellant at the request of the appellee, agreed with Dr. Roberts’ diagnosis and testified that tenderness to palpation is considered an objective finding. He indicated that not only did palpation of the costal cartilages elicit an indication of pain, but other locations were palpated also to determine whether or not the complaints of pain were appropriate for the diagnosis he had made. The dissenting Commissioner’s observation of this evidence is worth noting:
Dr. Roberts is obviously referring to the costochondral junctions at these specific ribs as being particularly tender or symptomatic. Since every costochondral junction is not involved in claimant’s symptomatology, and Dr. Roberts is specific about the affected area, Dr. Roberts’ findings of tenderness to palpation in this configuration document the extent or dimensions of claimant’s physical condition and are thus, measurable findings.
While it can be argued that these were the initial findings and not indicative of the permanent character of claimant’s work-related injury, Dr.Roberts’ subsequent reports describe claimant’s condition as “not improved,” “as previously” found, “much the same”, and finally as “permanent.” Thus, the initial findings are also the findings documenting claimant’s permanent disability. Moreover, even though Dr. Roberts stated that the calcification of the costochondral cartilages found in claimant’s x-rays “can be seen in people without any chest wall pain,” such findings can be seen in people with chronic costochondritis and are obviously objective and measurable findings corroborating the findings of tenderness to palpation. Therefore, there are sufficient objective and measurable findings in the record to support an award of benefits for a permanent anatomical impairment.
We do not believe that the decision of the Chairman of the Commission, concurred in by another Commissioner, is supported by the law and evidence as to the holding that there is insufficient evidence of measurable physical findings to support a determination of physical impairment. When the term “measurable” is properly construed there is no reason to reject the 10 percent anatomical impairment rating agreed to by both doctors; and when the appellate court is convinced that fair-minded persons, on the same facts, could not have reached the same conclusion arrived at by the Commission, the decision of the Commission must be reversed. International Paper Co. v. Tuberville, 302 Ark. 22, 27, 786 S.W.2d 830 (1990).
The Chairman’s opinion also held that appellant was not entitled to wage loss disability because of the provisions in Ark. Code Ann. § ll-9-522(b) (1987) that deny, under certain circumstances, an injured employee permanent partial benefits in excess of the employee’s percentage of permanent physical impairment. To support that holding the opinion states “the Respondent apparently was prepared to allow the Claimant to return to work at a job compatible with her limitations, and a representative for the Respondent testified that a variety of jobs were available.” (Emphasis added.) The only representative of the Respondent-Appellee who testified was Ted Mabry who said he was an employee of the appellee and that safety and workers’ compensation came within the jurisdiction of his job. He testified that if appellant “had reported” for work she would have been assigned to a job which would have permitted her to work without repetitively lifting as much as fifteen pounds. On cross examination he was asked if the job she would have done would be less strenuous than mopping a floor and he said “Yes.” He was then asked if it was more or less repetitive than mopping a floor and he said it was more repetitive. Mabry also said he had sent a list of jobs available to appellant to Dr. Roberts; however, the doctor stated he reviewed the list of available jobs sent to him by Mabry and found none that appellant could do. The appellant testified that she went back to work for appellee on two occasions after her injury and was unable to do the work assigned to her. She also testified that she did not believe appellee had a job that she was able to perform. Although, the Chairman’s opinion states that appellant admitted she could do work physically comparable to the bank teller’s job she once had, the appellant testified that job was in 1977 and that she would need to go for more schooling to be able to do that work today. We also note that the appellant is 43 years old, has a ninth-grade education, and her treating physician’s progress notes of September 15,1989, state: “I recommend that the patient not be returned to work. I think this is a permanent condition.”
Arkansas Code Annotated § ll-9-522(c) (1987) contains two subdivisions which qualify the provisions that limit an injured employee’s disability benefits if the employee returns to work or has reasonably obtainable offer to work at wages equal to those made at the time of injury. Those two subdivisions provide (1) that the burden is on the employer to prove the employee returned to work or that he had a reasonably obtainable offer to return to work at equal wages, and (2) that the intent of these provisions is to enable an employer to reduce disability payments when the disability no longer exists or if the employee is discharged for misconduct or leaves work without good cause connected with the work.
Based on the evidence in the record, the burden of proof, and the purpose of Ark. Code Ann. § 1 l-9-522(b) and (c), we do not believe the Commission’s decision to deny wage loss compensation under the provisions of Ark. Code Ann. § 11-9-522(b) is supported by the law and the evidence.
We reverse the Commissions’ decision and remand with directions to assess appellant’s permanent physical impairment and her permanent partial disability benefits.
Reversed and remanded.
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Elizabeth W. Danielson, Judge.
Grain Systems Credit Company, a partnership, was awarded a summary judgment in a United States District Court in Illinois against the appellants, John E. McDermott and Ila A. McDermott, for $63,915.51, plus attorneys’ fees and costs for breach of a grain bin lease. The judgment was issued on April 23, 1990, and on July 9, 1990, Grain Systems gave notice to appellants that they had filed the foreign judgment in Poinsett County Circuit Court. On August 30,1990, appellants responded to the notice of filing of the foreign judgment and asked for dismissal of the action on the basis that Grain Systems was a general partnership doing business in Illinois, and that under Arkansas law, a general partnership does not have entity status and cannot maintain an action in its own name. Subsequently, the trial court granted an oral motion for substitution of all of Grain System’s rights, title and interest in the foreign judgment to Great Plains Equipment Leasing Corporation. Appellants filed a motion to vacate the order of substitution as well as a response to the motion for summary judgment. The trial court denied the motion to vacate and granted appellee’s motion for summary judgment. On appeal, the appellants contend that the court erred in denying their motion to vacate and erred in granting summary judgment in favor of the appellee. We find no error and affirm.
Appellants first argue that the trial court erred in failing to grant their motion to vacate the order for substitution and, further, that they were not given notice of the request for substitution. Rule 25 of the Arkansas Rules of Civil Procedure governs the substitution of parties. Where the substitution is based on a transfer of interest as it is in this case, subparagraph (c) of Rule 25 provides as follows:
In the case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of this motion shall be made as provided in subdivision (a) of this rule.
The pertinent part of subdivision (a) governing notice sets out “substitution may be ordered without notice or upon notice as the court may require.” Based on Rule 25, the trial court did not err by granting appellee’s motion to be substituted for Grain Systems as the party in interest nor did the court abuse its discretion by not requiring notice to appellants of the requested substitution.
Appellants next argue that the court erred in granting appellee’s motion for summary judgment. There is no showing in the record that appellants ever challenged the standing of the partnership to file suit in Illinois or contended that the judgment there was improperly entered. The Uniform Enforcement of Foreign Judgments Act, Ark. Code Ann. § 16-66-602 — 619 (1987), requires only that a foreign judgment be regular on its face and duly authenticated to be subject to registration. Strick Lease, Inc. v. Juels, 30 Ark. App. 15, 780 S.W.2d 594 (1989). The judgment which appellee seeks to register was found by the trial court to be regular on its face as well as properly authenticated. Based on the record, it was not error for the trial court to have granted appellee’s motion for summary judgment.
The primary purpose of the Uniform Act is to provide a summary judgment procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner. Dolin v. Dolin, 9 Ark. App. 329, 659 S.W.2d 954 (1983). The court in which the judgment is registered treats and enforces the judgment exactly as it would a judgment rendered by that court. Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978).
Under the full faith and credit clause of the United States Constitution, art. IV, §1, a foreign judgment is conclusive on collateral attack, except for defenses of fraud in the procurement or want of jurisdiction in the rendering court, as a domestic judgment would be. Strick Lease, 30 Ark. App. 15. These judgments are presumed valid and the burden of proving them invalid is on the party attácking the foreign judgment. Dolin, 9 Ark. App. 329. The only defenses available to appellants are fraud in the procurement of the foreign judgment or lack of jurisdiction by the rendering court, neither of which were properly raised.
Affirmed.
Jennings and Rogers, JJ., agree. | [
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James R. Cooper, Judge.
The claimant appeals from the Arkansas Workers’ Compensation Commission’s holding that he failed to prove by a preponderance of the evidence that he is permanently and totally disabled. The appellant is a 62-year-old laborer with a fifth grade education who sustained a scheduled injury to his right eye. After finding that he suffered a work-related injury, the Commission remanded to the Administrative Law Judge to award benefits. He awarded temporary total disability benefits, and found the appellant to be permanently and totally disabled. The Commission reversed the finding of permanent and total disability, and we reverse that decision.
On August 17,1988, the appellant was employed by appellee Arkansas Lime Company. He was shoveling lime dust that had settled to the floor from a conveyor belt upon which lime was being grated. Fans were utilized in the work area and apparently blew dust into his eyes. The result was extensive medical treatment, surgery, and a permanent vision loss in excess of 95 % to his right eye. A claim for benefits was filed and the Administrative Law Judge found that the appellant did not sustain a work-related injury. The Commission reversed that decision, finding that the appellant had proven by a preponderance of the evidence that he had sustained a work-related injury and has proven a causal connection between his injury and subsequent eye problems. The case was remanded to the Administrative Law Judge to award benefits. He awarded temporary total disability benefits from August 17, 1988 to January 21, 1989, and found that the appellant was permanently and totally disabled. The appellee did not appeal the finding of compensability, but did appeal the award of benefits to the full Commission which reversed the decision. It limited the award of temporary total benefits to a period from August 18, 1988 to October 31, 1988, and found that the appellant failed to prove that he was permanently and totally disabled.
The Commission found in its opinion that the appellant lost the use of his eye as the result of a compensable injury suffered while working for the respondent on August 17, 1988. The appellee has challenged this finding of fact by arguing in its brief that the appellant’s injury was not entirely the result of his work-related injury. However, the appellee has failed to file a cross-appeal, as it was permitted to do under Ark. Code Ann. § 11-9-711(b) (1987), and we will not address its challenge to the Commission’s finding of fact. Even were we to consider the appellee’s argument, however, we would reach the same conclusion, because our review of the record indicates that there was clearly substantial evidence to support the Commission’s finding that the appellant’s condition was caused by his work-related injury with no significant aggravation or intervening cause. Given our resolution of this question, the only issue to be decided on this appeal is whether the Commission erred in denying the appellant benefits for permanent and total disability.
In cases such as the case at bar, where the Commission’s denial of relief is based on the claimant’s failure to prove entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Weller v. Darling Store Fixtures, 38 Ark. App. 95, 828 S.W.2d 858 (1992). The Commission’s opinion states:
Although there is no question that this claimant has lost the use of his right eye, and that he functions in the borderline mentally retarded age, that does not automati cally mean that claimant is permanently totally disabled.
The Commission referred to a report by Dr. Capps, the appellant’s physician, who addressed only physical impairment, stating that the appellant’s loss of vision in one eye affected his fine depth perception, but that his gross depth perception would remain intact and that he was capable of performing jobs similar to the jobs he had held in the past. The Commission concluded, without stating its basis for such conclusion, that “most manual labor jobs do not require fine depth perception.” The only other stated basis for the Commission’s denial of relief was the alleged lack of effort the appellant showed in finding a new job. The commission stated that the appellant’s “lack of interest and negative attitude is an impediment to the Commission’s full assessment of the claimant’s loss and is a factor to be considered.”
The appellant is 62 years old, has a fifth grade education, and has always had jobs involving manual labor. He now has a permanent vision loss of 95 % to his right eye which was caused by a work-related injury. He testified that he did not think he could return to his job because he could not see; that any of his previous jobs would be difficult to perform due to exposure to the sun which caused pain in his eye and ear leading to headaches; that he is unable to drive, hunt, fish, or mow the yard as he used to do; and that due to the added strain to see, he now tires easily. Imogene Burris, a woman who lives in the appellant’s home, testified that the appellant continues to have medical treatment and she drives him; that he is negatively affected by heat; that he cannot even groom himself; and that, before the injury, he was an active person and hard worker.
Though not noted in the opinion, the Commission’s factual finding that the appellant is borderline mentally retarded is supported by a report by Dr. James Chaney, a psychologist, who examined the appellant and found him to be mentally retarded and functionally illiterate. He noted that “because of his mental retardation, his lack of educational achievement, his ocular difficulties, and his advanced vocational age, he appears to be 100% disabled from a vocational standpoint . . . .” Dr. Chaney’s report is the only evidence in the record bearing on wage-loss factors.
The appellee argues that these factors do not include any opinion by a medical doctor placing any physical restrictions on the appellant, or stating that he could not perform any of the jobs he held in the past; however, when wage loss benefits (permanent and total disability) are at issue, not only should the medical evidence, i.e., the impairment rating, be considered, but also the claimant’s “age, education, experience, and other matters affecting wage loss.” Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961). Arkansas Code Annotated § 11-9-522 (1987) provides in pertinent part:
(b) In considering claims for permanent partial disability benefits in excess of employee’s percentage of permanent physical impairment, the commission may take into account in addition to the percentage of permanent physical impairment, such factors as the employee’s age, education, work experience and other matters reasonably expected to affect his future earning capacity.
An employee who is injured to the extent that he can perform services that are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist may be classified as totally disabled. Lewis v. Camelot Hotel, 35 Ark. App. 212, 816 S.W.2d 632 (1991). These employees are said to fall within the odd-lot category of disabled workers. In Walker Logging v. Paschal, 36 Ark. App. 247, 821 S.W.2d 786 (1992), Professor Larson’s treatise was cited as follows:
If the evidence of degree of obvious physical impairment, coupled with other factors such as claimant’s mental capacity, education, training, or age, places claimant prima facie in the odd-lot category, the burden should be on the employer to show that some kind of suitable work is regularly and continuously available to the claimant. [2 Larson, Workmens’ Compensation Law, § 57-61, pages 10-136 and 10-137.]
The odd lot doctrine refers to employees who are able to work only a small amount. The fact they can work some does not preclude them from being considered totally disabled if their overall job prospects are negligible. 2 Larson, supra, § 57-51, pp. 10-107, et seq.
There is no evidence that placement of the appellant in the odd-lot category was specifically argued to or addressed by the Commission, but because of the total and permanent disability claim after the scheduled injury, the appellee was on notice that the odd-lot doctrine was in issue. See Walker Logging, supra, 36 Ark. App. at 253.
846 S.W.2d 188
In M.M. Cohn v. Haile, 267 Ark. 734, 589 S.W.2d 600 (Ark. App. 1979), the Court cited Arkansas Best Freight Sys., Inc. v. Brooks, 244 Ark. 191, 424 S.W.2d 377 (1968), where the Supreme Court sustained an award of compensation for total disability despite medical evidence that the claimant was functionally disabled to the extent of 50%.
Loss of the use of the body as a whole involves two factors. The first is functional or anatomical loss. That percentage is fixed by medical evidence. Secondly, there is the wage-loss factor, that is, the degree to which the injury has affected claimant’s ability to earn a livelihood . . . the second element is to be determined by the Commission, based on medical evidence, age, education, experience and other matters reasonably expected to affect the earning power. (Citation omitted.)
Based on the Commission’s factual findings of disability and borderline mental retardation along with the undisputed evidence of the appellant’s advanced age and lack of education or vocational training, the appellant is prima facie within the odd-lot category. Therefore, the burden shifted to the employer to show evidence that suitable work is regularly and continuously available to the appellant. Walker Logging, supra. The appellee failed to do so, and therefore we reverse. The case is remanded to the Commission with direction to award total and permanent disability benefits.
Reversed and remanded.
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Melvin Mayfield, Judge.
Herman Mitchell appeals from an order filed August 29, 1991, entitled “Second Amended Supplement to Decree of Divorce Qualified Domestic Relation Order.”
Appellant and appellee, Erma Mitchell, were divorced by decree filed April 23, 1986. The decree provided that .the court would reserve ruling on the wife’s request for one-half of the husband’s retirement, and the parties were given thirty days to file briefs on the issue. Although it is not in the record, the parties agree that the trial court entered an Amended Decree and Order on September 29, 1986, in which the court held that the husband’s pension was vested, that it was marital property and should be divided equally, and that, when the husband began to draw his pension benefits, the wife would be entitled to receive one-half of it. No appeal was taken from this order, but it apparently failed to meet the federal requirements for a Qualified Domestic Relations Order (QDRO).
The requirements for a QDRO are contained in 26 U.S.C.A. § 414(p) (West 1988 & Supp. 1992). This section defines a QDRO as a domestic relations order which creates or recognizes the existence of an alternate payee’s right to receive all or a portion of the benefits payable to a participant in a pension plan. A domestic relations order means a judgment, decree or order (including approval of a property settlement agreement) made pursuant to a state’s domestic relations or community property law and relating to the provision of child support, alimony, or marital property rights to a spouse, former spouse, child or other dependent of a plan participant. To qualify as a QDRO, a domestic relations order must meet certain specific standards. Within a reasonable period after receipt of a domestic relations order, the administrator of the plan shall determine whether such order is a QDRO, and if the administrator determines that an order does not meet the standards, the administrator will not honor the order until it does meet the standards.
The husband in this case was a participant in the Central States Southeast and Southwest Areas Pension Fund. In an effort to make the September 29, 1986, order comply with the federal regulations, three subsequent orders were entered by the trial court. It is the latest of these, entered August 29,1991, which was finally accepted as a QDRO and which is the subject of this appeal by the husband.
The gist of appellant’s argument is that the trial court erred in amending a decree that was over 5 years old. Specifically,, appellant argues that the appellee failed to meet the requirements of Ark. R. Civ. P. 60 which bars the amendment or modification of a decree after 90 days, absent compliance with Rule 60(c), and that appellee failed to present to the trial court a proper motion requesting the relief which the court granted.
We are unable to reach the merits of appellant’s argument because he has failed to properly perfect his appeal. Arkansas Rule of Appellate Procedure 4 provides:
(a) Time for Filing Notice. Except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. . . .
(b) Time for Filing Notice of Appeal Extended by Timely Motion. Upon the filing in the trial court within the time allowed by these rules of a motion for judgment notwithstanding the verdict under Rule 50(b), of a motion to amend the court’s findings of fact or to make additional findings under Rule 52 (b), or of a motion for a new trial under Rule 59(b), the time for filing of notice of appeal shall be extended as provided in this rule.
(c) Disposition of Posttrial Motion. If a timely motion listed in section (b) of this rule is filed in the trial court by any party, the time for appeal for all parties shall run from the entry of the order granting or denying a new trial or granting of denying any other such motion. Provided, that if the trial court neither grants nor denies the motion within thirty (30) days of its filing, the motion will be deemed denied as of the 30th day. A notice of appeal filed before the disposition of any such motion or, if no order is entered, prior to the expiration of the 30-day period shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion or from the expiration of the 30-day period. No additonal [additional] fees shall be required for such filing. (Emphasis added by Court of Appeals.)
The sequence of events in this case relevant to the disposition of this appeal is as follows:
August 29, 1991 SECOND AMENDED SUPPLEMENT TO DECREE OF DIVORCE QUALIFIED DOMESTIC RELATIONS ORDER
September 4, 1991 Appellant’s notice of appeal
September 5, 1991 Appellant’s MOTION FOR THE COURT’S FINDINGS OF FACTS AND CONCLUSIONS OF LAW
September 5, 1991 Appellant’s motion for RELIEF FROM THE SECOND SUPPLEMENT TO QUALIFIED DECREE OF DIVORCE OF QUALIFIED DOMESTIC RELATIONS ORDER
October 14, 1991 Hearing after which court orally denies appellant’s motions.
In the September 5,1991, motion entitled “MOTION FOR THE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW,” appellant stated the request was made “in compliance with Rule 52 of the Arkansas Rules of Civil Procedure.” Under Appellate Procedure Rule 4(b), the filing of a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b) extends the time for filing notice of appeal. In addition, appellant’s second motion, filed on September 5, 1991, entitled “RELIEF FROM THE SECOND SUPPLEMENT TO QUALIFIED DECREE OF DIVORCE OF QUALIFIED DOMESTIC RELATIONS ORDER,” is in essence a motion for new trial under Rule 59(b). Appellate Procedure Rule 4(b) also extends the time for filing notice of appeal when a motion for new trial is filed as provided in Ark. R. Civ. P. 59(b).
Therefore, under either motion filed by appellant on September 5,1991, the time to appeal would run from the entry of an order on the motion or from the thirtieth day after the filing of the motion, whichever came first. See Ferguson v. Sunbay Lodge, Ltd., 301 Ark. 87, 781 S.W.2d 491 (1989); Jasper v. Johnny’s Pizza, 305 Ark. 318, 807 S.W.2d 664 (1991); Phillips Construction Co., v. Cook, 34 Ark. App. 224, 808 S.W.2d 792 (1991). These cases also make it clear that even when an appealable order has been entered and a notice of appeal has been filed within 30 days thereafter, the filing of a motion provided for in Appellate Procedure Rule 4(b) will extend the time for filing the notice of appeal, and the notice of appeal filed before the time is extended will be ineffective.
In the instant case, the notice of appeal filed on September 4,1991, was ineffective because of the motions filed on September 5,1991. Moreover, those motions were deemed denied at the end of 30 days after they were filed — unless the trial court ruled on them before that time. Although the trial court orally denied the motions at a hearing on October 14, 1991, this was more than 30 days after they were filed and they were already deemed denied; therefore, it was necessary to file a new notice of appeal within 30 days after the motions were deemed denied. Because this was not done, no appeal has been perfected. While this issue was not raised by the appellee, it is jurisdictional and we must raise it even if the parties do no. Eddings v. Lippe, 304 Ark. 309, 802 S.W.2d 139 (1991).
Dismissed.
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Melvin Mayfield, Chief Judge.
Appellant was arrested when a police officer passing a drugstore at Baseline and Scott Hamilton Drive in Little Rock, Arkansas, shortly after 1:00 a.m. on August 11, 1981, heard a burglar alarm sounding and found appellant inside the pharmacy putting bottles into a cardboard box. He was charged with burglary, tried to a jury and convicted, and, as an habitual offender, received a sentence of 20 years in prison.
The appellant asked for a jury instruction on criminal trespass as a lesser included offense and it is the refusal of the trial court to give this instruction that is the basis of the argument on appeal.
Burglary is defined as entering or remaining unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977). Criminal trespass is purposely entering or remaining unlawfully in or upon a vehicle or the premises of another person. Ark. Stat. Ann. § 41-2004 (Repl. 1977). Criminal trespass is complete upon the making of an unlawful entry. No intent to engage in further unlawful conduct is necessary.
Criminal trespass was held to be a lesser included offense of burglary in the case of Bongfeldt v. State, 6 Ark. App. 102, 6S9 S.W.2d 70 (1982). That case involved a man who broke into his former employer’s place of business and took some gasoline. He testified that he entered the building only intending to borrow the gasoline and was going to pay for it the next morning. We reversed his conviction on the basis that the lesser included offense of criminal trespass should have been included in the instructions to the jury. We said if there is the slightest evidence tending to disprove one of the elements of the larger offense, it is error to refuse to instruct on the lessér included offense. Appellant points to evidence that he had been drinking heavily for at leas t twelve hours prior to the time he was arrested and contends he was too intoxicated to form the necessary mental intent to commit an offense punishable by imprisonment. Therefore, he argues it was error to refuse to instruct on criminal trespass.
We agree that the court should have given an instruction on the lesser included offense of criminal trespass. That offense requires a purposeful intent. We have held that voluntary intoxication is an affirmative defense to a crime that requires a purposeful intent. Gonce v. State, 11 Ark. App. 278, 669 S.W.2d 490 (1984); Bowen v. State, 268 Ark. 1088, 598 S.W.2d 447 (Ark. App. 1980). Certainly the appellant could have been too intoxicated to have the specific intent to commit one of the crimes but not the other and he was entitled to an instruction on the lesser included offense of criminal trespass. Caton & Heodley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972).
Reversed and remanded.
Cracraft and Glaze, JJ., agree.
Entry to commit a misdemeanor punishable by imprisonment in . county jail is sufficient to constitute burglary. See the Commentary to Ark. Stat. Ann. § 41-2002 (Repl. 1977). | [
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Donald L. Corbin, Judge.
Appellee, Ezekiel McBride, was adjudicated permanently and totally disabled as a result of an injury to his lower back while employed by the appellant, International Paper Company. Now the matter is back before us because appellant is controverting the lump sum award of attorney’s fees to appellee’s attorney.
Appellant’s first argument that we must address concerns the question raised by his counsel as to whether Ark. Stat. Ann. § 81-1332.1 (Supp. 1983) of the Arkansas Workers’ Compensation Act, providing for lump sum award of attorneys’ fees is inconsistent with Ark. Stat. Ann. § 81-1332 (Supp. 1983), and therefore void.
The emergency clause found in Act 215 of 1979, codified at Ark. Stat. Ann. § 81-1332.1, makes it clear that the legislature was aware of the provisions of § 81-1332 in regard to attorneys’ fees. With this knowledge the legislature passed Act 215 to address what it saw as a gap left by § 81-1332. Section 5 of Act 215 reads in pertinent part:
[T]hat the scope of the Commission’s authority to award attorney’s fees on a lump sum basis is unclear and must be immediately clarified. Therefore an emergency is hereby declared to exist. . . .
Obviously, the legislature intended the two sections, § 81-1332 and § 81-1332.1, to be read in conjunction with one another and saw no conflict between the two statutes. The legislature felt strongly that the Commission should be able to award lump sum attorneys’ fees. Had the legislature perceived any conflict between the statute they enacted to accomplish this and the old statute, they would have undoubtedly repealed § 81-1332.
We have spoken to this issue previously in Aluminum Company of America v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982). Judge Tom Glaze writing for a majority of the Court stated:
Prior to the enactment of Act 215, many instances existed where the claimant’s attorney received his or her compensation installments on the same schedule benefits were paid the claimant. Since an individual claimant or beneficiary might die or remarry prior to the projected time set forth in the tables, attorneys in these instances would fail to receive full payment for their services. The language in the emergency clause of Act 215, i.e., Section 3 supra, clearly reflects that the Arkansas General Assembly enacted Act 215 to remedy this problem.
Appellant argues that § 81-1332.1 is unconstitutional in that it violates the equal protection and due process clauses of the Fourteenth and Fifth Amendments to the United States Constitution.
The equal protection clause of the Fourteenth Amendment has been interpreted to mean that similar individuals in similar circumstances will be dealt with in a similar manner. There is nothing in the language of § 81-1332.1 to indicate that any individual or group of individuals is to be singled out for different treatment under similar circumstances. Section 81-1332.1 is a facially neutral statute and in no way violates the equal protection clause of the Fourteenth Amendment. Appellants present several hypothetical situations in which they allege § 81-1332.1 could be discriminatorily applied; however, the record is totally devoid of any evidence to support an argument that the statute has been applied discrimina-torily. Absent such evidence, we cannot address this issue.
Appellant argues that § 81-1332.1 violates the due process clause of the Fifth Amendment because the Commission’s discretion in awarding lump sum attorneys’ fees can never be challenged due to the statute’s lack of guidelines. We believe appellant misunderstands the nature of the protection provided by the Fifth Amendment.
The due process clause of the Fifth Amendment, applicable to the states by the Fourteenth Amendment, provides in part that no one shall be deprived of property without due process of law. Appellants below were afforded a hearing before the Commission to determine whether a lump sum attorney’s fee would be awarded. This hearing provided appellant due process of law in regard to the award of a lump sum attorney’s fee.
Appellants argue that the statute fails to set forth guidelines for awarding lump sum attorney’s fees. We must disagree. The plain language of the statute authorizes the Commission to award lump sum attorney’s fees. No limitations are set forth because none were apparently intended. We must assume that the legislature intended to authorize the Commission to award such fees in any or all cases. Thus the statute’s guidelines are discernible; lump sum attorneys’ fees can be awarded in any or all cases. Any complaint that the Commission has exercised their authority to award lump sum attorneys’ fees discrimina-torily must be raised under the equal protection clause and supported by the record.
The Workers’ Compensation Commission declined to rule on the constitutionality of § 81-1332.1 when the issue was raised before them. As we have said before in Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982), and in Swafford v. Tyson Foods, Inc., 2 Ark. App. 343, 621 S.W.2d 862 (1981), the constitutionality of a statute must be raised at the Commission level; however, the ultimate decision upon a statute’s constitutionality can only be decided by a court of law. Arkansas Constitution, Article VII, § 1. The constitutionality of the statute was properly raised below and we find the statute to be constitutional.
Affirmed.
Cooper, J., agrees.
Mayfield, J., concurs. | [
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James R. Cooper, Judge.
In this unemployment compensation case, the Agency, Appeal Tribunal and the Board of Review all found that the appellant was disqualified from receiving benefits because she quit her last work without good cause connected with the work. The main issue presented in this appeal is whether the appellant’s last employer in a chronological sense, Kelly Services, is her last employer for purposes of the administration of the unemployment compensation act, since that employer was a part-time employer, or whether her last full-time employer, Publisher’s Bookshop, is her last employer for the purposes of the act.
The appellant had worked for Publisher’s for about ten years, and in March, 1983, she was laid off. She applied for, and began receiving unemployment benefits. She sought other employment, and when she was unable to find full-time work, she accepted a job with Kelly Services. She testified that an employee of the Employment Security Division told her that accepting such part-time work would not affect her unemployment benefits from Publisher’s. The appellant later quit her work with Kelly in order to accompany her spouse to Arizona, and also because she was dissatisfied with the part-time employment.
In the recent case of Hopkins v. Stiles, Director, 10 Ark. App. 77, 662 S.W.2d 177 (1983), we held that a claimant should not be disqualified from receiving unemployment benefits as a result of her accepting part-time employment when no suitable full-time employment is available. In Hopkins, this court analyzed the purposes behind the act, the competing policies involved and the decisions in other jurisdictions which have addressed this issue in reaching the holding that we feel is the better policy. There we noted that the statutory provision governing the amount of weekly benefits awarded during partial employment, Section 3(c) of the Arkansas Employment Security Law [Ark. Stat. Ann. § 81-1104 (c) (Supp. 1983)], provides for a reduction in the weekly benefits received as a result of the prior employment by the amount received from the part-time employment which is in excess of 40% of the weekly benefits being received. Thus the appellant could earn up to 40% of her weekly benefits being received based on her employment with Publisher’s, from Kelly, and suffer no reduction in the amount she was receiving in unemployment compensation. The holding in Hopkins adopted a public policy designed to encourage persons receiving benefits under the act to accept part-time employment if no full-time employment was available without suffering a reduction in their overall income. We therefore reaffirm this holding in reversing and remanding this case for a determination of benefits based on the appellant’s last employment with the appellee, Publisher’s .
As a result of our holding above, we do not reach the issue concerning the appellant’s asserted quitting her last employment without good cause. Likewise, we do not reach the estoppel argument raised by the appellant based on the alleged assurances from the Agency employee regarding the appellant’s suffering a loss in unemployment compensation as a result of her accepting the part-time employment. The appellant is entitled to benefits regardless of the fact that she left part-time work voluntarily, without good cause. Her further unemployment benefits are subject to reduction only to the extent that her part-time wages compel that result.
Reversed and remanded.
Cracraft, C.J., and Glaze, J., agree.
Although the Arkansas Supreme Court reversed our decision, Stiles, Director v. Hopkins, 282 Ark. 207, 666 S.W.2d 703 (1984), the reversal was based on the fact that the Supreme Court found that the issue we decided was not properly before us. The court did not reach the merits of our decision. | [
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H. William Allen, Special Judge.
This is an appeal of a decision of the Workers’ Compensation Commission ordering a change of physicians for the appellee pursuant to Ark. Stat. Ann. § 81-1311 (Supp. 1983). The appellant employer contends on appeal that the Commission’s opinion is not supported by substantial evidence and that the award is contrary to Arkansas law. We affirm the Commission’s decision.
The pertinent facts are undisputed. The appellee, Louis Randall, suffered a compensable injury to his right eye on April 11, 1983, while he was operating a cleaning machine for appellant Wright Contracting Company. The appellee’s foreman took him to Doctor’s Hospital where Dr. A. Henry Thomas, an ophthalmologist, performed surgery to remove a small piece of metal from appellee’s eye. As a result of his injury, appellee was paid temporary total disability from April 12 through April 26, 1983, totalling $285.73 and medical expenses totalling $2,128.29. On April 27, 1983, Dr. Thomas released the appellee to return to work and to resume normal work activities. In a report dated May 18, 1983, Dr. Thomas noted that appellee had 20/20 vision in his right eye.
A hearing was conducted before an administrative law judge on August 2, 1983, to consider the appellee’s request for a change of physicians. The appellant contended that because the appellee had been released by his doctor to return to work, and had, in fact, returned to work, he was no longer within his healing period and was therefore not entitled to a change of physicians. The appellee testified that he was treated for his injury in the emergency room where his foreman took him after his injury, that the treating physician called in Dr. Thomas, and that appellee was never questioned about his preference of physicians. The appellee said that after the treatment he continued to experience sensitivity to light and that he could not see in bright lights. In addition, he testified:
And of the mornings. . .for the first four (4) or five (5) hours I’d have a lot of trouble seeing. My eye would run constantly. And my pupil. . .when I’d turn my head my left eye would focus on something and my right eye would try to tag along behind it.
That’s what problem I have. I still have trouble with the light hurting my eye and it runs all the time. And my eye is not going as fast as the other one when I focus, when I try to focus on something.
The appellee testified that his problem with light sensitivity occurred in sunlight or when he watched television. He said that even the white of a newspaper caused his eye to water when he attempted to read. He stated that he had never experienced eye problems of any nature until after his injury.
On cross-examination, the appellee testified that he did return to work after Dr. Thomas released him, and that appellant had dismissed him the day he returned to work. He was working for another construction company at the time of the hearing, and had missed no work because of his eye.
Between the time of the hearing and the time the administrative law judge rendered an opinion, the ap-pellee moved to Wichita, Kansas, and he requested that he be examined by a physician there. The administrative law judge filed his opinion on November 14, 1983, ruling that appellee was entitled to an independent evaluation by an ophthalmologist in Wichita, Kansas. The law judge also stated in his decision that if the choice of physicians became a point of controversy, he would appoint a specific doctor. The Commission affirmed the decision of the law judge.
Appellant’s first point for reversal is that the Commission’s decision is contrary to the facts of the case and is not supported by substantial evidence. Appellant contends that appellee was “provided with adequate medical care” to satisfy the “reasonably necessary” prescription of the Workers’ Compensation Law. Ark. Stat. Ann. § 81-1311 (Supp. 1983). Appellant also contends that the medical reports, coupled with the fact that claimant has missed no work because of his eye injury, contradicts his testimony that he needs further medical evaluation. Appellant contends the medical reports show that appellee had “normal vision,” and that the only contradictory evidence is the “uncorroborated and interested testimony of the [a]ppellee himself.”
This Court’s review of workers’ compensation cases is well established. We must affirm if we find substantial evidence to support the Commission’s ruling. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). We must view and interpret the evidence, and all reasonable inferences deducible therefrom, in the light most favorable to the findings of the Commission and give the testimony its strongest probative force in favor of the action of the Commission, whether if favored the claimant or the employer. Id. The issue of credibility is one for the commission; we are not at liberty to weigh the credibility of witnesses. Id. It is the duty of the Commission to weigh medical evidence as it does any other evidence. Id.
In the instant case, the Commission apparently believed the appellee’s testimony about his difficulties with his right eye after the injury, despite a medical report that he has 20/20 vision in his right eye. Although appellant argues that it has provided all “reasonable and necessary” medical treatment the law requires, Ark. Stat. Ann. § 81-1311 (Supp. 1983), the Commission determined otherwise in ordering an examination by another ophthalmologist. What constitutes reasonable and necessary treatment under the statute is a fact question for the Commission. See, e.g., Meadors Lumber Co. v. Wysong, 262 Ark. 425, 557 S.W.2d 395 (1977); Pine Bluff Parks and Recreation v. Porter, 6 Ark. App. 154, 639 S.W.2d 363 (1982). We believe substantial evidence supports the Commission’s determination.
Appellant’s second point for reversal is that the Commission’s award is contrary to Arkansas law because appellee’s healing period has ended. Under the present law and the facts of this case, appellee’s healing period is of no significance. The pertinent section of the Workers’ Compensation Law provides:
If the employee selects a physician, the Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change. If the employer selects a physician, the claimant may petition the Commission one time only for a change of physician, and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician, and shall not be bound by recommendations of claimant or respondent. . . .Treatment or services furnished or prescribed by any physician other than the ones selected according to the foregoing. . .shall be at the claimant’s expense.
Ark. Stat. Ann. § 81-1311 (Supp. 1983).
Appellant does not dispute that appellee had no initial choice of physicians at the time of the injury. The emergency room physician called in Dr. Thomas, whom appellee had never met, and Dr. Thomas performed surgery that same day. The statutory provision set out above provides for a “one time only” petition for a change of physician when the employer has initially selected the physician. The statute also provides for a change even when an employee has selected the physician, provided the Commission finds a compelling reason or circumstance to justify a change. The Commission has authority to approve a change under either of those circumstances. Problems have arisen when claimants have changed physicians and then attempted to secure the Commission’s approval after the fact. Recent changes in the law have resulted in a limitation on the Commission’s discretion to retroactively approve a change of physicians. See American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983); Continental Grain Co. v. Miller, 9 Ark. App. 317, 659 S.W.2d 517 (1983). The cases upon which appellant relies are simply not applicable to the instant case. Most of them were decided under prior law, when a claimant’s healing period was a determining factor in approving a change of physician. See Ark. Stat. Ann. § 81-1311 (Repl. 1976). Appellant has cited the following for the proposition that even under the law presently in effect, a claimant’s healing period is or ought to be a valid consideration in deciding a change of physician issue: Continental Grain Co. v. Miller, supra; Union Medical Center v. Brumley, 4 Ark. App. 370, 631 S.W.2d 618 (1982); Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982); and Bradford v. Timex Corp., 270 Ark. 184, 604 S.W.2d 472 (Ark. App. 1980). However, all of those cases were decided under our prior law, even though some of the decisions were handed down by this Court after the effective date of the current law. Appellant also cited Popeye’s Famous Fried Chicken v. Willis, 7 Ark. App. 167, 646 S.W.2d 17 (1983), but it has no bearing on the instant case because it involved the issue whether Act 290 of 1981, which amended § 81-1311 to its present form, had retroactive application. Of course, no question exists here over what law applied. Willis did involve a claimant who applied to the Commission for a change of physician in advance of actually consulting another doctor, as did the appellee in the instant case, and in Willis we affirmed the Commission’s approval of that change. In American Transportation Co. v. Payne, supra, the current law was applied, but the facts are distinguishable from the facts at bar. The Payne case involved a claimant who applied to the Commission for approval after she already had been treated by a physician of her choice. We noted that under the present law, the Commission no longer has the broad discretion it once had to retroactively approve change of physicians, and that, absent compliance with § 81-1311, the employer is not liable for a new physician’s services.
In the instant case, the appellee clearly complied with the dictates of § 81-1311 in applying for a change of physician in advance of actually being treated by a doctor of his choice. The Commission acted within its discretion in approving that request. Therefore, we affirm.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree. | [
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Melvin Mayfield, Chief Judge.
The parties in this case were divorced by the Benton County Chancery Court March 10, 1983. They have a child, Misty, who was born April 1, 1982. The decree provides that custody- of the child is awarded to each party for a period of six months each year until she begins to attend school on a full-time basis, and at that time primary custody shall be vested in the mother. Specific visitation rights are fixed for the noncustodial parent both before and after the child begins to attend school, with alternative visitation arrangements in the event both parents do not continue to live in Benton County, Arkansas.
The mother appeals asking that we reverse the split custody arrangement and award her full custody; she also wants a change in regard to support payments by the father. The appellee asks only that we affirm the chancellor’s decision.
The evidence shows that the parties had been married approximately two years when they separated. Appellant had been married five times previously, twice to the same man, and had given up a child by a previous marriage to its father because she “thought that it was best” for the child. She was twenty-eight years old at the time of trial. She was not then employed, but said she had been a nurse’s aide and that she wanted to move back to Texas, which was her home state and where she lived when she met the appellee. She thought she could find employment there; she would live with her mother and step-father; and her mother, who did not work, would help take care of Misty.
Appellant’s friend, Jenny Burr, testified that appellant was hardworking and not an abusive or profane person. She said appellant was a good mother and took very good care of her child. She admitted that appellant had not told her the truth once or twice and she was aware of times when appellant had lied to her husband to get money from him. She denied making the statement that appellant was too unstable to care for Misty but later admitted that she might have said it around the time appellant and appellee separated because the appellant was upset at that time over the separation. The witness thought that appellant took good care of Misty, but said appellee shared in that care and saw nothing objectionable in the way he took care of the child.
The appellant’s mother testified that appellant and Misty were welcome. She said it would be up to the stepfather to support them financially because she had no money of her own. The stepfather testified that he would let them move in until appellant found a job and could get a place of her own, but he said at “this point’’ in his life he would not raise the child for appellant as he did not believe that would be in either his or the child’s best interest.
In the appellee’s behalf, there was testimony that he was a fine upstanding young man who loved his daughter and was very good at taking care of her. He had lived in Benton County for about ten years. His parents had been married twenty-nine years and had three children of which the appellee was the oldest. They had lived in the same two-story farm house with three-bedrooms on 100 acres of land for all those ten years. They had a married daughter who lived with her husband in a house trailer right next to the farm house, and a younger son who was still living at home. The appellee had been granted temporary custody of Misty and they had been living with his parents while awaiting the trial of this suit. His mother testified that she would be glad to assist in caring for Misty. She was employed but said she could devote Saturdays and Sundays to Misty and would be willing to give up her employment entirely to help take care of the child. She thought her son could provide Misty the physical, emotional, and spiritual stability she needed, but had reservations about the appellant’s ability in that regard.
There was evidence that the appellee held a full-time job driving a truck and delivering feed. He also raised cattle and helped his father on the farm. Several witnesses testified that the appellant was kind and loving toward Misty and looked after all her needs. During appellee’s temporary custody, in addition to the father, grandparents, and aunt, Misty had been cared for at times in a day care center.
The appellant quotes from Drewry v. Drewry, 3 Ark. App. 97, 101, 622 S.W.2d 206 (1981), where it states that “our courts have held that divided custody of a minor child is not favored unless circumstances clearly warrant such action,” and DeCroo v. DeCroo, 266 Ark. 275, 276, 583 S.W.2d 80 (1979), where it was said “it is often in the best interest of the children, especially when they are very young, that they be awarded to the mother.” The appellant also suggests that the trial court “may have stepped into the quagmire this court warned chancellors of, when [a concurring opinion] stated in Drewry, supra, that it is hoped any idea that the tender years doctrine has been repealed will not cause chancellors to think they must divide the custody of children in order to avoid the claim that there was a preference based on gender.”
On the other hand, the appellee notes that Act 278 of 1979, Ark. Stat. Ann. § 34-2726 (Supp. 1983), mandates that custody should be made “solely in accordance with the welfare and best interest of the children” and “without regard to the sex of the parent,” and he relies upon Drewry for its affirmance of a split custody award and for the statement of the prevailing opinion which said that Act 278 “abolished” the tender-years doctrine.
The reliance by both parties, in well-written briefs, upon Drewry makes it appropriate to suggest that the four separate opinions handed down in that case may indicate that the court was more fractured than it really was. Despite the different approaches, the opinions agree that the goal involved is the welfare and best interest of the child. Either expressly or by implication, each opinion also recognizes the superior position of the chancellor to.see the witnesses, hear the testimony, and find the facts. It is our duty on appeal to affirm the chancellor’s findings of fact unless they are clearly against the preponderance of the evidence. ARCP Rule 52(a). In the instant case, the precise custodial issue before us is whether the judge’s failure to grant full custody to the appellant is clearly against the preponderance of the evidence. Applying the law to the evidence in the case, we hold that the judge’s decision on this issue was not clearly wrong.
Appellant also contends that the chancellor erred in regard to the child support provision made by the decree. It is provided that after the child begins attending school full-time, the father shall pay the mother (who the decree contemplates will at that time have full custody) child support in accordance with the family support chart then used by the court; except payment shall be abated during any period of a week or more that the child is visiting with the father. Nothing is said about support until the child begins full-time school attendance. Appellant says this is unfair to both parties since the child might have a series of inj uries or catastrophic illnesses and the non-custodial parent would have no obligation to assist financially. The appellee replies that both parties are required to share the care of the child on an equal basis and, in any of the events assumed by appellant, there is no indication in the record that a different appropriation would be applicable. We agree that the intent of the decree is to place the financial burden of Misty’s care upon both parties equally. The evidence before the chancellor at the time of the decree supports that decision.
Affirmed.
Cloninger, J., agrees.
Cracraft, J., concurs. | [
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George K. Cracraft, Judge.
Blake Lieblong and Sally Lieblong are the owners of Lot 30 in Brookwood Subdivision. Appellees Danny Akers and Pam Akers are the owners of Lot 29 in that subdivison. The appellant, Briarwood Apartments, is the owner of Lot 33, Brookwood Subdivision. At the time Brookwood Subdivision was dedicated all of the lots in the subdivision were made subject to a bill of assurances which contained the following restriction:
LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single-family dwelling not to exceed two and one-half stories in height. . . .
The appellant also owns a tract of land which adjoins Lots 29, 30 and 33 of Brookwood Subdivision to the north, but is not located in the subdivision or subject to the bill of assurances. In 1982 the appellant began construction of a twelve apartment complex for the elderly and handicapped on its land lying outside the subdivision. At that time despite the protest of the owners within the subdivision it scraped a roadway across Lot 33 for access for the construction workers on its property. In October it put down some crushed stone on the roadway. In early November when the apartment complex was from 80% to 90% complete the appellant began paving the roadway to provide access to the complex for its inhabitants. The appellees commenced this action on November 24, 1982 seeking injunctive relief against further use of Lot 33 for other than residential purposes. The appellant answered denying that the use it made of the lot was violative of the bill of assurances and raising the affirmative defenses of laches and estoppel. The chancellor ruled that the use of the lot as a roadway connecting with another roadway outside the subdivision was a violation of the restrictive covenant and that the appellees were not barred by delay in enforcing their rights under the bill of assurances. This appeal follows.
Appellant contends that the chancellor erred in concluding that the appellant’s use of Lot 33 as a means of access to an apartment complex which was not part of the subdivision violated the bill of assurances. We do not agree.
In Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970) our court held that the opening of a street or right-of-way across a lot does not violate a covenant restricting the property to residential uses where it is the intention of the owner to designate the property as a private drive to be used only by individuals with land abutting on the passageway and where there is no connection of the proposed right-of-way with any street or property outside the subdivision. While the court did not have before it the precise issue we now address, its discussion of the cases on which it relied leads us to our conclusion. In Casebeer the court adopted the rule announced in Callaham v. Arenson, 239 N.C. 619, 80 S.E.2d 619 (1954) on similar facts. In doing so the Casebeer court recognized the clear distinction made by the North Carolina court in the subsequent case of Long v. Branham, 271 N.C. 264, 156 S.E.2d 235 (1967) in the following language:
We also feel that the Long case is readily distinguishable from the case before us, because the construction of this passageway will not make it or any street in the subdivision a thoroughfare carrying traffic from another subdivision contrary to the objectives of the restrictive covenants, as would have been the case in Long. [Emphasis supplied]
This same distinction was recognized by the Supreme Court of Mississippi in A. A. Home Imp. Co. v. Hide-A-Way Lake, 393 So.2d 1333, (Miss. 1981) which discusses Casebeer, Callaham and Long. The Mississippi Court declared that the owner of property within a subdivision could construct a beneficial roadway across the land owned by him connecting two streets within the same subdivision without violating the covenant but where the roadway is intended, not as a connecting street within the subdivision, but as one furnishing access to lots and streets outside the subdivision it should be enjoined as violating the bill of assurances. The Mississippi Court stated:
There is no ambiguity in the expression ‘No lot shall be used for other than residential purposes.’ Any additional use must be reasonably incidental to residential uses and such an inconsequential breach of the covenant as to be in substantial harmony with the purposes of the parties in making the covenants, and without substantial injury to the neighborhood. See Thompson v. Squibb, 183 So.2d 30 (Fla. D.C. App.2d 1966). It is obvious that the use of Lot 52 on which there is no residence as a connecting roadway to an adjoining subdivision is not in any sense a residential use or a use incidental thereto. In this case, the sole purpose of the roadway is to provide a means of ingress and egress between two subdivisions. It destroys the self-contained aspect of the subdivision, and the security that goes along with it. [Emphasis supplied]
In Thompson v. Squibb, supra, referred to above, it was stated:
It is obvious that the use of defendant’s lot as a connecting street so that there would be access from the streets of the adjoining subdivision to those of the subdivision for whose benefit the covenants were made is not in any sense a residential use or a use incidental thereto.
We conclude that the trial court was correct in finding that the use appellant intended to make of the roadway was violative of the bill of assurances.
The appellant next contends that the chancellor erred in not holding that the appellees were barred by laches and estoppel from asserting the violations of the restrictive covenants. Appellant argues that the appellees were aware for a period of four months of the intended use of Lot 33 and allowed the appellant to spend approximately $300,000 in the construction of the apartment complex before bringing this action. Appellant relies on Borssuck v. Pantaleo, 183 Md. 148, 36 A.2d 527, 156 A.L.R. 1140 (1944) and other cases from sister states, some of which are discussed in the annotation to Archambault v. Sprouse, 215 S.C. 336, 55 S.E.2d 70, 12 A.L.R.2d 388 (1949), which have held that where the owners of lots in a subdivision sit idly by while large expenditures are made in the erection of a nonconforming dwelling they are barred by the delay from obtaining injunctive relief. This argument is not persuasive because cases relied on are clearly distinguishable.
Here the apartment complex on which the expenditures were made was located on property not subject to the covenants restricting land use. The owners of property in Brookwood Subdivision had no basis to seek injunctive relief against the erection of the apartment building. The application of the equitable doctrines of laches and estoppel must be determined from the facts and circumstances surrounding appellant’s use of Lot 33 and the expenditures made on that lot.
The doctrine of laches is based on a number of equitable principles, and here it is based on the assumptions that the party to whom laches is imputed has knowledge of his rights and an opportunity to assert them, that by reason of his delay the adverse party has good reason to believe those rights are worthless to have been abandoned, and that because of a change of conditions or relations during this delay it would be unj ust to the latter to permit him to assert them. Rhodes v. Cissell, 82 Ark. 367, 101 S.W. 758 (1907). Laches is a species of estoppel and rests upon the principle that if one maintains silence when in conscience he ought to speak, equity will bar him from speaking when in conscience he ought to remain silent. Page v. Woodson, 211 Ark. 289, 200 S.W.2d 768 (1947). It is the unreasonable delay of the party seeking relief under such circumstances as to make it unjust or inequitable for him to seek it now. Langston v. Langston, 3 Ark. App. 286, 625 S.W.2d 554 (1981). These equitable principles are premised on some detrimental change in position made in reliance upon the action or inaction of the other party. The length of time after which inaction constitutes laches is a question to be answered in the light of the facts presented in each individual case.
Here the appellant began construction of the complex in early August 1982 and, with full knowledge of the restrictive covenants obtained in the bill of assurances and of the continuing protest of the use he was making of Lot 33 by the property owners in Brookwood Subdivision, scraped a roadway across Lot 33 for its use in construction of the complex. One appellee testified that he protested three or four times and that there was a city council meeting which the appellant’s representative attended where protest was made by a number of persons. One of the appellants testified that despite knowledge of the restrictive covenants and the protest of the owners in the subdivison they scraped and used the roadway anyway. Around the 1st of October the appellant put some crushed stone on the scraped roadway to facilitate access. In early November the appellant constructed gutters and curbing and laid an asphalt roadway across the lot. Appellees brought this action twenty-four days later. The cost of laying the asphalt for the roadway was not shown in the record.
As the appellees argue, there was no way for them to know that the roadway was to be a permanent one rather than a temporary access during construction until the curbing and laying of the asphalt was undertaken. The appellants knew of the restrictions and knew of the appellees’ objections to the use they intended to make of it. One who openly defies a known right in the absence of anything to mislead him or to indicate assent or abandonment of opposition to that action by others is not in a strong position to urge as a bar to relief a failure to take the most instant resort to the courts. We conclude that the trial court’s ruling that the appellees’ right to enforce the' restrictive covenants was not lost by laches, under the circumstances of this case was correct.
Affirmed.
Corbin and Glaze, JJ., agree. | [
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Lawson Cloninger, Judge.
This is an appeal from a decree of the chancellor, finding that a written agreement by appellants to lease twenty-four dairy cattle from appellee was valid and was not in fact a credit sale which was void for usury as set out in Bell v. Itek Leasing Corp., 262 Ark. 22, 555 S.W.2d 1 (1977).
This agreement was signed on December 15, 1979. Appellants then took possession of twenty-four dairy cows which they had picked out and made payments pursuant to the lease agreement for a period of approximately two and one-half years. The last payment on the lease by the appellants was in May of 1982. Thereafter, the appellants filed suit alleging that the lease was not a lease but was in fact the sale of the cattle and was usurious and unenforceable. Appellee cross complained, alleging that the agreement was a valid lease and arguing that it was entitled to accelerate the remaining payments left on the five-year lease. The chancellor refused to enforce a provision for acceleration, holding that that provision was unconscionable and unenforceable in a court of equity. He did, however, enter judgment for appellee in the amount of $17,712.14 which represented the rental owed to the date of the decree. He further held that appellee was entitled to take possession of the cattle and retain jurisdiction to establish the actual damages sustained by appellee. Appellants now bring this appeal, and we must affirm.
Appellants’ sole point for reversal is that the chancellor erred in finding that the transaction was a lease and not a sale. One case is cited for this point, Bell v. Itek Leasing Corp., supra. In Bell, the Arkansas Supreme Court reversed a finding by the chancellor that a valid lease existed between the parties which purported to lease certain printing equipment to appellant for a term of five years. The court held that an overwhelming preponderance of the evidence showed that the purported lease was in actuality an installment sale contract and was void for usury. The court looked to five important facts which supported the finding that the purported lease was in actuality a sale:
1. The defendant was in fact a finance company.
2. The printed form of the lease put all of the risk upon the lessee. The lessee was further required to pay all the taxes and insurance upon the leased property and all the risk of loss or damage to the leased property.
S. The contract provided the same remedies upon the lessee’s default that would be available to a conditional seller or to a mortgagee on a similar delinquency.
4. The contract expressly provided that the lessee would join the lessor in executing financial statements and “in the execution of such other instruments or assurances as lessor deems necessary or advisable for protection of the interest of the lessor in the equipment.”
5. The minimal amount the lessee would pay to acquire title after all the payments had been made under the lease. The court held that if the amount was nominal, as it was in this case, then the transaction is patently a sale in lease’s clothing.
In the instant case, many of the factors that were present in Bell are present here. First of all, there is some evidence in the record to support a finding that the appellee was, in fact, a financing company. Appellee did not own the cattle at the time the agreement was executed but rather purchased the cattle the following day. Appellants picked out all of the cattle which were purchased.
Secondly, the lease put all the risk of loss or damage to the leased property upon the lessee and further required the lessee to pay all licenses, fees, and taxes.
Thirdly, the contract provided many of the same remedies upon the lessee’s default in the payment of rent that would be available to a conditional seller. The lease contained an acceleration clause and further required the execution of a mortgage upon appellants’ property which also contained acceleration language. These remedies are very similar to those given a secured party. Fourth, the agreement did require appellants to execute financing Statements.
The last factor looked to in Bell was if the option to purchase at the end of the lease was a relatively small amount, then the transaction would be considered a sale rather than a lease. There is language in Bell to indicate that the most important factor in making the determination of the lease/sale distinction is the amount the lessee must pay at the end of the term in order to acquire title. In the instant case, appellants were given an option to purchase at the end of the lease for the fair market value of the cows. Appellants argue that there was testimony which indicated that the fair market value of the cows would have been diminished at the end of the five-year period. This testimony, however, did not give any definite value and we cannot speculate that it would have been a minimal amount to the extent that this transaction was a sale in lease’s clothing.
We hold that the chancellor’s finding that this agreement was a lease rather than as sale is not clearly against a preponderance of the evidence.
Affirmed.
Cracraft and Cooper, JJ., agree. | [
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Melvin Mayfield, Judge.
The appellant, Dwight Lomax, was found guilty by a jury of the sale of a controlled substance in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976), and was sentenced to ten years imprisonment. On appeal, he relies upon seven points for reversal. His attorney here was not the attorney at the trial.
First, the appellant argues that the trial court erred in proceeding without two of his subpoened witnesses’ being present. The appellee points out, however, that the appellant did not ask for a continuance or object to proceeding without the witnesses. The failure to ask for a continuance, Weaver v. State, 185 Ark. 147, 46 S.W.2d 37 (1932), orto make an appropriate objection, Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), precludes the consideration of this issue on appeal.
Appellant next contends that the trial court erred in proceeding without requiring the state to produce its confidential informant. Normally, the state is required to disclose the identity of an informant when he is present and participates in the alleged illegal transaction but not when the informant merely supplies a lead. Bennett v. State, 252 Ark. 128, 477 S.W.2d 497 (1972). This distinction is not always conclusive, however. West v. State, 255 Ark. 668, 501 S.W.2d 771 (1973). In the instant case, the informant was present during the transaction involved so the state may have been obligated to disclose his identity, but the appellant’s testimony reveals that on the day of the trial he knew the informant’s identity. Furthermore, according to statements in the record made by appellant’s attorney at the hearing of a motion for new trial, he was also aware of the informant’s identity.
Appellant argues further that the state should have produced the informant as a witness although no authority is cited for this contention. Even more prejudicial to appellant’s argument, however, is the.absence of any motion for disclosure or for “production” of the informant. In addition, there was no motion for continuance or any other objection to keep the trial court from proceeding as it did. Again, without any such motion or objection, this court cannot find that the trial court erred.
The appellant’s third contention is that the state failed to establish the chain of custody of the controlled substance allegedly sold (marijuana), and thus the substance should not have been admitted into evidence. There was testimony that on the day of the sale Investigator Jimmy Morris (the “buyer”) placed the marijuana in an envelope and labeled and sealed it. He then put his initials on the seal and put tape over it. He kept the envelope in his locked brief case until he turned it over to the state crime lab five days later. (Appellant argues that the evidence could have been tampered with in those five days.) A chemist in the crime lab testified that he received the labeled and sealed envelope and ran tests on the contents which were positive for marijuana. At that point, the state moved for introduction of the marijuana into evidence and the appellant did not object.
Again we note that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court, but even if the objection had been made, we think the chain of custody established was sufficient. This court has said:
In establishing a chain of custody prior to introduction of evidence, it is not necessary to eliminate every conceivable possibility that the evidence has been tampered with; it is only necessary that the trial judge be satisfied that the evidence is genuine and, with reasonable probability, that it has not been tampered with.
Ethridge v. State, 9 Ark. App. 111, 119, 654 S.W.2d 595 (1983).
Appellant’s fourth argument is that the trial court erred in not allowing him to reserve his opening statement until after the state rested. The record establishes that after the state’s opening statement the appellant’s attorney moved to reserve the right to make an opening statement after the close of the state’s case. At the close of the state’s case, there was an in-chambers hearing at which the trial judge stated that at the original conference on appellant’s motion, he had expressed serious reservations about the right to reserve opening statement but appellant’s attorney had assured him that he had case law to support the motion. The case presented by appellant’s attorney was McDaniels v. State, 63 S. W.2d 335 (1933), which is listed as not reported in 187 Ark. at 1163. The trial court found that case did not support appellant’s position. Therefore, the court denied appellant’s request to reserve opening statement and stated that appellant had been put on notice that this might be the decision if appellant’s attorney did not provide the court with case law to back his position. Thus, appellant did not make an opening statement and he now argues that there was a denial of one of his fundamental rights.
The main case relied upon by appellant is Jackson v. State, 249 Ark. 653, 460 S.W.2d 319 (1970). In Jackson, the defendant requested to reserve his opening statement until after the close of the state’s case. At that time the state did not ‘object and the trial judge assented, but when the state rested, the judge then refused to allow the defendant to make his opening statement, ruling that he had waived his right when he did not make the statement immediately after the prosecution’s opening statement. The Arkansas Supreme Court stated the general rule that the defendant’s opening statement should be made immediately following the opening statement of the prosecuting attorney, and that refusal to make his statement at that time would constitute a waiver. However, the court found “the failure of the State to object when defendant’s request was made was at least a silent acquiescence in the procedure proposed. The failure to permit the defendant to make his belated opening statement deprived him of a fair trial and constituted prejudicial error.” 249 Ark. at 656.
We think the instant case is distinguishable from Jackson. The record here shows that the appellant assured the trial court that he could supply authority to the court for allowing him to reserve his statement. The trial judge did not at that time give blanket consent but gave consent contingent on appellant’s showing him authority for his proposed procedure. Under these facts, the appellant had notice that he would be allowed to make the belated statement only if he could show the court authority for his position. Because of this notice, the court could properly find that appellant knowingly waived his right to make an opening statement and was not denied a fair trial as a result.
The appellant next argues that the state should not have been permitted to (1) introduce evidence of “other undercover drug operations,” or (2) make reference to the fact that appellant was drinking at the time of his arrest. Appellant argues that both issues are irrelevant and, even if relevant, that their probative value is outweighed by their prejudicial effect.
First, it should be pointed out that relevancy is to be determined by the trial court, Caldwell v. State, 267 Ark. 1053, 594 S. W.2d 24 (Ark. App. 1980), and we cannot reverse absent a showing of abuse of discretion, Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571 (1982). Fisher also holds that whether probative value outweighs prejudicial effect is a matter within the trial court’s discretion and absent a showing of abuse of that discretion, the case will not be reversed.
Investigator Morris testified that he was in Texarkana “as a part of a major undercover operation for the purchase of drugs.” Appellee correctly points out that this evidence is relevant as it informed the jury why Morris was in Texarkana and that appellant’s arrest was part of a major operation. We find no abuse of discretion in allowing this testimony and it is difficult to believe this background evidence had any prejudicial effect on appellant’s case.
Second, one of appellant’s witnesses testified that she had known appellant since he was a child, that she had never known him to use drugs and had never seen him in possession of alcohol or drinking alcohol. On cross-examination, appellee attempted to establish that she did not know the appellant as well as she had testified. She was asked if it would surprise her to know that appellant was drinking when he was arrested. We do not believe the trial court abused its discretion in finding this evidence relevant and in finding that its prejudicial effect did not outweigh its probative value. In Caldwell v. State, supra, the court stated: “It is logical to allow the cross-examiner to explore the basis of the witnesses’ [sic] opinion, i.e., whether the witness had heard all the facts about the defendant on which to base his opinion.” 267 Ark. at 1056.
The appellant’s final contention is that there was insufficient evidence to support his conviction because of the many inconsistencies in the testimony and the state’s failure to produce the informant to clear up these inconsistencies. In criminal cases we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the conviction. Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982). Here, Investigator Morris testified that appellant sold him two bags of green vegetable material for $60.00. Other evidence established that the material in the bags was tested in the state crime lab and was positively identified as marijuana. This evidence was clearly sufficient to support the finding that appellant sold a controlled substance in violation of Ark. Stat. Ann. § 82-2617 (Repl. 1976).
Affirmed.
Cooper and Corbin, JJ., agree. | [
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