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Tom Glaze, Judge.
Appellant seeks reversal of her conviction of Battery in the First Degree and sentence of ten (10) years in the Arkansas Department of Correction. She raises two issues, contending the trial court erred in failing to give: (1) an instruction based on AMCI 4002 (Culpable Mental State — General Provision), and (2) another instruction patterned after AMCI 4005.1 (Defense of Voluntary Intoxication). We hold the court ruled correctly in both instances and therefore affirm.
Appellant’s battery charge resulted from her shooting Evelyn Marie Arnold, who shared an apartment with appellant’s former boyfriend. She does not deny having shot Arnold — once in the leg and a second time in the side while Arnold was lying on the floor. Appellant argues only that she did not possess the required culpable mental state to be convicted of First Degree Battery. She further contends that (under the evidence presented) she was entitled to a voluntary intoxication defense instruction to negate the culpable mental state required under Ark. Stat. Ann. § 41-1601 (Repl. 1977). Appellant undisputedly had been drinking alcohol prior to the shooting, but the evidence was in conflict concerning whether she was intoxicated. Appellant’s own testimony indicated she was “drinking hard” and could not “recall the names of anybody that [she] was drinking with that night.” Although first testifying she did not recall shooting Arnold, appellant subsequently testified, “the only thing I recall about the shooting is when I realized I’d shot her.” She said, “I just wanted to scare her, but I had shot her.” Arnold’s and her boyfriend’s testimonies were that appellant had been drinking, but neither could say “if she was drunk.” The police officer investigating the incident stated that appellant “appeared to have been drinking, but she didn’t seem drunk.”
Appellant first argues that in view of the battery charge and facts presented, she was entitled to the AMCI 4002 instruction requiring the State to prove she purposely engaged in a prohibited conduct. We cannot agree. The State’s first degree battery case against appellant was based on two theories: (1) She acted with the purpose of causing serious physical injury to another person and she caused serious physical injury to another person by means of a deadly vfeapon, a violation of § 41-1601(l)(a); and (2) She caused serious physical injury ,to another person under circumstances manifesting extreme indifference to the value of human life, a violation of § 41-1601(l)(c). Obviously, appellant’s proffered instruction requiring purposeful conduct covers the State’s theory under § 41-1601(l)(a) but not its theory under § 41-1601 (1 )(c). While § 41-1601(l)(c) does not contain or specify the culpable mental state required for its violation, Ark. Stat. Ann. § 41-204(2) (Repl. 1977), provides that if the statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required, and is established only if a person acts purposely, knowingly, or recklessly. See Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). Thus, the Criminal Coderecognizes three distinct culpable mental states under § 41-1601 to sustain a conviction for first degree battery. In the instant case, the evidence (especially considering the appellant’s own testimony), tends to show the appellant acted knowingly or recklessly. In other words, the State was not limited under the facts in this case to an instruction requiring the jury to find the appellant acted purposely. After rejecting appellant’s request for AMCI 4002 requiring only purposeful conduct, the trial court correctly gave, without objection, AMCI instructions 1601 and 1602, covering the State’s alternative bases of liability for first degree battery as well as the lesser included offense of second degree battery.
Appellant contends the trial court erred in refusing to give AMCI 4005.1; an instruction allowing appellant to assert voluntary intoxication as an ordinary defense. Citing Johns v. State, 6 Ark. App. 74, 637 S.W.2d 623 (1982), the trial court ruled AMCI 4005.1 was incorrect because voluntary intoxication is an affirmative defense that must be proved by a preponderance of the evidence. We agree.
We concede that there may arguably have been some merit in appellant’s contention if the Supreme Court had not held as it did in Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). The Court in Varnedare recognized that the Arkansas General Assembly, amending Ark. Stat. Ann. § 41-207 (Repl. 1977), removed self-induced intoxication as a statutory defense, but the Court found the common law defense of voluntary intoxication was effectually reinstated. In reading the Court’s decision in Varnedare, the parties apparently never argued, nor did the Court, specifically consider, whether the Arkansas Criminal Code actually abrogated the common law principle which established voluntary intoxication as a defense when specific intent crimes are involved. Cf. Starkey Construction, Inc. v. Elcon, Inc., 248 Ark. 958, 965, 457 S.W.2d 509, 513 (1970); Barrentine v. State, 194 Ark. 501, 108 S. W.2d 784 (1937); and State v. One Ford Automobile, 151 Ark. 29, 235 S.W. 378 (1921). In State v. One Ford Automobile, the Court stated the rule that a statute should not be held to be in derogation of the common law unless there is an irreconcilable repugnancé, or unless the statute itself shows that such was the intention and object of the lawmakers. Except for the holding in Varnedare, we believe, a persuasive case exists that the voluntary intoxication defense recognized at common law is repugnant to our Code provisions. As previously mentioned, the common law rule permitted voluntary intoxication as a defense when a defendant was charged with a specific intent crime, and although the courts never labeled the common law defense as an affirmative one, the courts instructed that the defendant had the burden to establish the defense by a preponderance of the evidence. See Casat v. State, 40 Ark. 511 (1883); Wood v. State, 34 Ark. 341 (1879); Woodall v. State, 150 Ark. 394, 234 S.W. 266 (1921); see also Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976); Johns v. State, supra; Gonce v. State, 11 Ark. App. 278, 669 S.W.2d 490 (1984). Thus, while self-induced intoxication appears to be an affirmative defense at common law, it is not so recognized by the Code or by any statute. See § 41-110(4)(a)(b). Impliedly then, the statutory law and Code simply preclude common law voluntary intoxication as an affirmative defense. In fact, the Arkansas General Assembly expressly intended to eliminate the defense of self-induced intoxication altogether. See 1977 Ark. Acts 101, § 3. Given the clear intendment of the General Assembly’s enactments, it seems incongruent to reinstate the common law on the subject. Of course, one still might argue that the common law voluntary intoxication defense could be applied as an ordinary defense, perhaps under the language employed in §41-110(3)(c), but to do so would do damage to the rule, viz., the defendant could avail himself of the defense if he were charged with a specific intent crime, but he would no longer be required to prove the defense by a preponderance of the evidence.
Having stated our misgivings regarding' the Varnedare decision, we are nevertheless bound to that holding, which reinstates the common law defense of voluntary intoxication. In our attempt to follow Varnedare, we have reocgnized that defense as an affirmative one and ruled that it is available when the offense charged requires a specific intent. See Gonce v. State, supra; Johnson v. State, 6 Ark. App. 542, 642 S.W.2d 324 (1982); and Johns v. State, supra. In the instant case, under one theory undertaken by the State, it offered evidence indicating the appellant acted purposefully under § 41-1601(l)(a) when committing first degree battery on the victim, Arnold. In so doing, the State undertook to prove appellant guilty of a specific intent crime. Cf. Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981); see also Guzman, 1976 Criminal Code— General Principles, 30 Ark. L. Rev. 111, 112 (1976). Nonetheless, the appellant failed to offer a correct instruction setting forth the common law defense of voluntary intoxication; instead, she proffered AMCI 4005.1, an instruction defining voluntary intoxication as an ordinary defense, which was not in compliance with Arkansas precedents. We hereby hold that AMCI 4005.1 is an incorrect statement of the law insofar as it states that defendants need only raise a reasonable doubt in the jurors’ minds that they had the capacity to form a purposeful mental state. Instead, the defendant must prove the defense by a preponderance of the evidence. The appellant may not complain of the refusal of the trial court to give an instruction which is only partly correct as it is his duty to submit a wholly correct instruction. Jackson v. State, 92 Ark. 71, 122 S.W. 101 (1909); and Johnson v. State, supra.
Affirmed.
Mayfield, C.J., and Corbin, J., concur.
See Ark. Stat. Ann. § 41-203 (Repl. 1977) (Definitions of the Culpable Mental States under the Code). | [
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Tom Glaze, Judge.
Appellants Terry Forgy, Randy Baird and Henry Heimeyer were charged with violation of Ark. Stat. Ann. § 41-3553 (Repl. 1977), which prohibits the sale and circulation of obscene periodicals. Appellant Forgy is the owner of the State Line Book Store in Texarkana, and the other appellants are employees there. They were convicted in Texarkana Municipal Court and appealed to the Circuit Court of Miller County. After a trial de novo before a jury, they were again convicted. Baird was fined $250; Heimeyer was fined $250 and sentenced to thirty days in the county jail; and Forgy was fined $500 and sentenced to sixty day in the county jail. After careful deliberation of the points raised by appellants on appeal, we affirm the conviction of Forgy and reverse the convictions of Baird and Heimeyer.
On February 28, 1983, Major Cowart of the Texarkana Police Department entered the State Line Book Store and told Forgy, who was alone, that he was there to check on some permits for the store and to see if a city occupational tax had been paid. Major Cowart left the store, returned to police headquarters and ordered Officer Adcock to go to the store and buy two “obscene” magazines. Officer Adcock purchased two magazines from Forgy. After the purchases, the officers sought advice from the prosecuting attorney’s office concerning whether they needed a search warrant before returning to the store. Based on that advice, the police believed that they had probable cause to arrest Fórgy and returned to the book store to make the arrest and seize other obscene material. At approximately 4:00 P.M., February 28, five police officers — armed with an arrest warrant for Forgy — went to the book store to arrest him, but they found Baird in the store alone. Baird testified that the officers first began taking magazines off the rack and then asked if Forgy was there. He confirmed the officers did not have a search warrant to search the premises. After seizing forty-seven different magazines and simultaneously making a list of their titles, the officers arrested Baird and Heimeyer, who had entered the store sometime after the seizure of the magazines had begun. The officers determined the magazines were obscene by looking only at the covers of the magazines.
At trial, in addition to testimonies of the officers describing the magazine covers they saw in the book store, the State introduced the two magazines purchased as proof of the appellants’ violation of the statute. The State chose not to offer into evidence the forty-seven magazines seized by the officers when they returned to arrest Forgy, but it did introduce a list of the titles of the forty-seven magazines. Vulgar titles typical of those on the list were: “The Fucking Sucking Sisters,” “Pussies For Sale,” “Lez Pussy Lickers,” “Ass Slappin’,” and the like. The trial court admitted the two magazines and the list of titles into evidence; however, it refused to admit an “adult film” offered by the defense in their efforts to show Texarkana’s relaxed community standard regarding obscene material.
Appellants raise eight points for reversal. However, only four of the arguments are based on objections made at trial, and according to Wicks v. State, 270 Ark. 781, 606 S. W.2d 566 (1980), only those arguments can be heard by this Court. Two of the remaining four arguments can be easily resolved, and we will do so before addressing the other, more complicated issues.
Appellants Baird and Heimeyer contend that because Forgy had actually sold some magazines and they had not, the trial court erred in not granting their motion to sever. This argument is, in effect, a claim that the State’s evidence against Forgy is stronger than the evidence against them. The relative strength of the State’s case against each co-defendant is a proper factor for a court to consider when ruling on a motion to sever; however, it is only one of several factors for the court to consider. See McDaniel v. State, 278 Ark. 631, 648 S.W.2d 57 (1983). Significantly, the evidence offered against the appellants was essentially the same, differing mainly in that Forgy sold two obscene magazines, but the other appellants kept or exposed obscene magazines. Given the totality of circumstances present in this case, particularly the absence of antagonistic defenses between Baird and Heimeyer and Forgy, the trial court’s refusal to grant the motion to sever was not an abuse of discretion, and this Court will not disturb it on appeal. See Daniel, supra.
All of the appellants also urge this Court to reverse their convictions because of the trial court’s refusal to admit into evidence an adult movie then playing in Texarkana. Appellants offered the film in support of their claim that relaxed community standards regarding pornography existed in Texarkana. The State objected to the film’s introduction on irrelevancy, lack of foundation and best evidence grounds. The trial court refused to let the jury see the film, stating, “[T]he jury itself represents the community and is in a (sic) inherent position to apply community standards to the case before it.” The trial judge did permit the manager of the theater then showing the adult film to testify. The manager stated that the film contained scenes of “sexual acts and simulated sexual acts,” and that the film was available to adults in the community.
Relevancy rulings are, of course, within the trial court’s discretion and will only be reversed for an abuse of that discretion. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Given the possibility of confusion on the part of the jurors, we do not think the trial judge abused his discretion in refusing to admit the film into evidence. Also, the film should not have been admitted into evidence because the proffered evidence showed only that the film was available in Texarkana. Before a proffer of material is admissible as probative of community standards on obscenity, the proponent must establish a reasonable degree of community acceptance of the proffered material; however, mere availability in the community of the proffered material does not, of itself, prove the material measures up to the community standard. See Hamling v. United States, 418 U.S. 87, 125-26 (1974); United States v. Pinkus, 579 F.2d 1174, cert. dismissed 439 U.S. 999 (1978).
We now turn to the issue that gives us the most difficulty. Appellants argue that the seizure of the magazines by the police officers violated their rights protected by the First and Fourth Amendments to the United States Consti-. tution. Because the seizure of the magazines was unconstitutional, the appellants contend that the list of the titles of the magazines that was compiled as part of that seizure was inadmissible against them. Citing Roaden v. Kentucky, 413 U.S. 496 (1973), appellants contend the police seizure of the magazines was unreasonable. In Rooden, a county sheriff in Kentucky viewed a film at a drive-in theater and, based on his own predisposition, concluded that it was obscene. Without a prior determination by an impartial magistrate of the obscene nature of the film or a search warrant, the sheriff arrested the manager of the theater and seized the film. The United States Supreme Court held that such a seizure was invalid. Reiterating that the seizure of books and film arguably protected by the First Amendment is to be assessed in light of a “higher hurdle in the evaluation of reasonableness” than the seizure of dangerous weapons or stolen goods, the Court concluded that police officers should not make this determination based upon their own subjective determinations of obscenity. In order to fully protect First Amendment rights, the police should let an impartial and neutral magistrate determine whether probable cause exists for the seizure of the allegedly obscene materials.
In the instant case, as in Rooden, the police officers had no search warrant when they made the seizure of the allegedly obscene material; there had been no prior independent judicial determination concerning whether the allegedly obscene material was, in fact, obscene and the' seizure of the material was based solely on the observations of the police officers. Given the holding of Rooden, we must conclude that the police officers’ seizure of the magazines in this case violated the appellants’ First Amendment right of free speech and their Fourth Amendment right to be free of unreasonable searches and seizures. See also Gibbs v. State, 255 Ark. 997, 504 S.W.2d 719 (1974). Because the list was part of the unlawful seizure, it, too, must be suppressed. Mapp v. Ohio, 367 U.S. 643 (1961). So long as police officers do not conduct an illegal seizure of material protected by the First Amendment, they are at liberty, just as other members of the public, to enter book stores. Once the police are lawfully present in the book store, they may take notes and compile lists to prepare themselves to go before an impartial magistrate and testify in order to obtain a proper search warrant. That procedure simply was not employed here. Thus, given the doctrine of Rooden, the admission of the list of the magazine titles was error warranting at least a reversal and a remand for a new trial for appellants Baird and Heimeyer. Forgy’s situation differs, and we hold he is not entitled to a new trial even though the list was erroneously admitted into evidence against him. The inadmissibility of the list of the vulgar titles in no way taints the admissibility of the two obscene magazines that Forgy undisputedly sold to the police.
The sale of these magazines was not, of course, a “seizure” of the magazines. See Johnson v. State, 351 So.2d 10 (Fla. 1977); Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977), cert. den. 439 U.S. 899 (1978); State v. Hughes, 519 S.W.2d 19 (Mo. 1975); People v. Peters, 82 N.Y.Misc.2d, 138, 368 N.Y.S.2d 753 (1975); Carlock v. State 609 S.W.2d 787 (Tex.Crim.App. 1981). Therefore, because the sale of the magazines was nota seizure of protected First Amendment material, the Roa,den doctrine does not apply to the admission of the two magazines that were purchased. Even though the list should not have been admitted against Forgy, the evidence, in the form of the two magazines that he sold, is so overwhelming that the error, even if it is of constitutional proportions, is harmless beyond a reasonable doubt. Ark. R. Civ. P. 61; Pace v. State, 265 Ark. 712, 580 S.W.2d 689 (1979).
Appellants Baird and Heimeyer also question the sufficiency of the evidence against them as their eighth point for reversal. Given our disposition of their constitutional argument, we will not decide this issue. Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599, rev’d on other grounds, 276 Ark. 258, 634 S.W.2d 118 (1982).
In sum, because of the constitutional violation of Baird’s and Heimeyer’s First and Fourth Amendment rights, we reverse their convictions and remand to the trial court. We affirm the conviction of appellant Forgy.
Affirmed in part and reversed in part.
Cracraft, J., concurs.
Cooper, J., concurs in part and dissents in part.
Mayfield, C.J., dissents as to Heimeyer and Baird.
In this appeal, no one challenges the obscenity law under which appellants were charged; nor do they contend the two magazines were not obscene. | [
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James R. Cooper, Judge.
This appeal arises from the revocation of the appellant’s suspended sentence resulting from a plea of guilty to the charge of felony theft of property. In November of 1981, the appellant, in exchange for his testimony against two others, pleaded guilty and received a five year suspended sentence. He was ordered to pay a $5,000.00 fine as a condition of his suspended sentence, along with $70.00 restitution. On January 17,1983, the State filed a motion to revoke the appellant’s suspended sentence due to his failure to make payments toward his fine in over one year. A hearing was held on February 14,1983, at which time the trial court lowered his payments from $150.00 to $100.00 per month. On March 7, 1983, the appellant made a $200.00 payment on his fine, for the months of February and March. The appellant made no further payments and on August 26, 1983, the State filed a second petition to revoke the appellant’s suspended sentence. A final hearing was held on this motion on November 4,1983, and at this hearing, the trial court made a finding that the appellant had willfully failed to make payments toward his fine, and sentenced him to three years in the Arkansas Department of Correction. From that decision, comes this appeal.
For reversal, the appellant alleges the trial court erred in revoking his suspended sentence due to the fact that his failure to make payments toward his fine was due to his inability to pay rather than a willful refusal to make the payments. We do not agree, and therefore we affirm.
The appellant relies on the recent United States Supreme Court case of Bearden v. Georgia, 103 S.Ct. 2064 (1983), for the proposition that the appellant cannot be jailed for his inability to pay the fine. He argues that he sought employment during the period between March of 1983 and October of 1983, when the petition to revoke the suspended sentence was filed by the State. During this period, the appellant states that he was employed for a short period of time in Oklahoma, and later in Ohio, painting apartments. The remaining time in this period, the appellant travelled around looking for employment unsuccessfully. The appellant alleges that he did not have the money to make payments toward his fine during this period due to his inability to find steady employment.
The evidence adduced at the revocation hearing, however, indicated the appellant held the job in Ohio for two months during this period, and saved $1,000.00 with which he could have made the payments. He made no payments during this time, despite the fact that the court had lowered his payments from $150.00 to $100.00 per month in February, 1983. It is true that Bearden v. Georgia, supra, prohibits the trial court from imprisoning the appellant for his failure to pay when such failure is not willful, and requires the trial court to explore alternatives to imprisonment in such situations. However, when the trial court finds that such non-payment is willful, it does not have to explore alternatives to imprisonment and can revoke the suspended sentence and impose a term of imprisonment. Here, the trial court found that the appellant’s failure to make payments toward his fine was willful, and we hold that this finding is amply supported by the evidence.
Affirmed.
Mayfield, C.J., and Cloninger, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission holding that the appellee’s impotence was a result of a compen-sable back injury and that the surgical procedure for a prosthetic penile implantation was necessary medical treatment.
Appéllee injured his back while working for appellant and underwent surgery in 1973. He subsequently developed bladder and bowel incontinence and impotence. It was determined that he was suffering from a demyelinating disease, thought to be either multiple sclerosis, primary lateral sclerosis, or amyotrophic lateral sclerosis. In a previous hearing the Commission had found that the disease had been either precipitated or aggravated by the back injury and that it was compensable. That decision was affirmed by the Arkansas Supreme Court in an unpublished opinion dated October 18,1976.
As a result of that decision, appellee received treatment for his bladder and bowel condition. When these were stabilized to the greatest extent possible, treatment was begun for the impotence. After a series of tests, it was decided that the treatment of choice was a penile implant.
In this appeal the appellant’s first argument is that there is no medical evidence in the record establishing a causal relationship between appellee’s injury and his impotence. Appellee’s doctors testified that the state of the art in testing is not yet sophisticated enough to determine with certainty that claimant’s impotence is related to his back injury. However, appellee testified that he was 32 years old at the time of the accident, married, and had no problems of this nature prior to his injury. He said the impotence developed immediately after the injury and concurrently with numbness in his legs, the incontinence, and partial paralysis. While one doctor reported that he could not be “certain” that appellee’s impotence was related to his injury, another doctor stated it was his opinion that the condition was secondary to appellee’s preexisting disease and cited McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S. W. 2d 416 (1961), for the proposition that disability from such an aggravation is compensable. Moreover, it is not essential that the causal relationship between the accident and the disability be established by medical evidence, Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974), or that the evidence be medically certain, Colonial Nursing Home v. Harvey, 9 Ark. App. 197, 657 S.W.2d 211 (1983). We think there is substantial evidence to support the finding that there was a causal relationship between appellee’s injury and impotence.
Appellant argues secondly that the medical procedure requested is not reasonable or necessary. Appellant says that since appellee has one child and there is no evidence that he desires any more, since he has been impotent for ten years and there is no evidence of any marital discord related to his condition, and since there is no evidence that appellee has suffered any psychological damage because of his impotency, the procedure is not medically necessary. Ark. Stat. Ann. § 81-Í311 (Repl. I960), in effect at the time of appellee’s injury, provided in pertinent part:
The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six [6] months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require. [Emphasis added.]
There seem to be three schools of thought in regard to the issue before us. One line of cases allows medical treatment that will help restore the claimant’s earning power. An example of such a case is Los Angeles County v. Industrial Accident Commission of California, 261 P. 295 (Ca. 1927), in which cosmetic surgery to repair disfigurement to claimant’s eye and cheek was ordered to improve his appearance and increase his earning power. See also Ranson v. Orleans Parish School Board, 365 So.2d 937 (La. Ct. App. 1979) (wig allowed schoolteacher). Cf. Eckert v. Yellow Freight Systems, Inc., 351 N.E.2d 924 (Ind. Ct. App. 1976) (cosmetic surgery refused for facial scars). Some workers’ compensation statutes limit compensation for disfigure ment to the face and head. See Ark. Stat. Ann. § 81-1313 (g) (Repl. 1976). Under such a statute, Whitaker v. Church’s Fried, Chicken, Inc., 373 So.2d 1371 (La. Ct. App. 1979), held it was error to award damages for disfigurement in an area other than the face and head.
A second line of cases requires the carrier to continue to pay for custodial care required as a result of the compensable injury even if no further improvement in the claimant’s condition is expected. In Hamilton v. Boise Cascade Corp., 370 P.2d 191 (Idaho 1962), a 72-year-old employee fell and broke his hip. It was replaced but complications set in and the hip prosthesis eventually had to be removed. Drugs, ambulance, prosthesis, doctor bills, and continuing nursing home care were all allowed as “reasonably required.” See also S & S LP Gas Co. v. Ramsey, 272 N.W.2d 47 (Neb. 1978), in which it was held that the employer continues to be responsible for domiciliary custodial care of an injured employee even when no cure or rehabilitation is possible; and Nallan v. Motion Picture Studio Mechanics Union, Local #52, 375 N.Y.S.2d 164 (N.Y. App. Div. 1975), in which claimant, a paraplegic, was awarded $150 a week for nursing services performed by his wife, but was not entitled to an automobile to travel back and forth to work because it was not a medical apparatus or device.
A third line of cases allows compensation for measures that are merely palliative. In Clark v. Fedders-Quigan Corp., 131 N.Y.S.2d 575 (N.Y. App. Div. 1954), the claimant was disabled by emphysema, an occupational disease. His doctor recommended a period of residence in a warm, dry climate to relieve his symptoms and make him feel better. The expense of his travel to Florida was allowed but not his living expenses while there. Accord In re Levenson’s Case, 194 N.E.2d 103 (Mass. 1963). See also Cook v. Georgia Grocery, Inc., 125 So.2d 837 (Fla. 1961), where there was evidence that a hemiplegic claimant would be happier at home and he was awarded compensation for the medical care, nursing services and appliances necessary to allow him to remain there even though it exceeded the cost of nursing home care. And under a workers’ compensation statute almost identical to ours, the Oklahoma Supreme Court in Akers Auto Salvage v. Waddle, 394 P.2d 452 (Okla. 1964), determined that purely cosmetic surgery on a claimant’s ears was reasonable and necessary even though he suffered no loss of hearing and the prognosis for the repair was poor. The claimant had suffered almost total avulsion of his right ear. His doctor stated that the disfigurement could be improved by plastic surgery reconstruction which would require setting back the normal ear to give an appearance similar to the reconstructed ear. The appellate court held that the matter of necessity and reasonableness of the recommended surgical procedure was a question of fact for determination by the industrial court.
The provisions of our workers’ compensation act are to be construed liberally in favor of the claimant whenever “obscurity of expression or inept phraseology appears.” International Paper Co. v. Tidwell, 250 Ark. 623, 466 S. W.2d 488 (1971). See also Johnson v. Valmac Industries, 269 Ark. 626, 599 S.W.2d 440 (Ark. App. 1980). Under the provisions of the act involved in this case the appellee was entitled to such medical and surgical services as “may be necessary.” The administrative law judge found that the surgical procedure in question was “necessary” to restore claimant, as far as practicable, to the physical condition he enjoyed immediately preceding this injury. That finding was adopted by the Commission. Applying a liberal construction in claimant’s favor, we cannot say the finding was wrong. We hold that the decision appealed from is supported by substantial evidence and within the proper exercise of the Commission’s discretion.
Affirmed.
Cracraft, C.J., and Glaze, J., agree. | [
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Melvin Mayfield, Chief Judge.
In this case the appellant was charged with attempted murder in the first degree. He was tried by a jury, found guilty, and sentenced to twenty-five years in the Department of Correction. We reverse and remand for a new trial.
The appellant presents two points on appeal. First, he argues the trial court incorrectly allowed testimony concerning another act of misconduct committed by him. Second, he argues it was error for the trial court to hold that the state could question him concerning a prior conviction for manslaughter when other convictions were available for impeachment purposes.
The events which gave rise to the attempted murder charge occurred on June 1, 1982. A witness for the state testified that earlier the same night the appellant and another person had an argument and appellant waved a pistol around during this argument.
This matter was discussed in Alford v. State, 223 Ark. 330, 334, 266 S. W.2d 804 (1954), where the Arkansas Supreme Court said:
If other conduct on the part of the accused is independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal —then evidence of that conduct may be admissible, with a proper cautionary instruction by the court.
That case was decided before Arkansas adopted the Uniform Rules of Evidence which became effective July 1, 1976. See Ark. Stat. Ann. § 28-1001 (Repl. 1979). Uniform Rule 404(b) provides:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The case of Price v. State, 267 Ark. 1172, 599 S.W.2d 394 (Ark. App. 1980), pointed out that Rule 404(b) codified the rule in existence before the Uniform Rules were adopted. The opinion also said that the rule is most difficult to apply, although the court in Alford said the results reached “have been harmonious to a high degree.” We do not think it would be helpful to make an extensive review of the cases, but we do note Rowdean v. State, 280 Ark. 146, 655 S.W.2d 413 (1983), because it seems factually similar to the one before us. In that case the appellant was convicted of first degree murder for shooting a man outside a nightclub. Evidence was admitted to show that earlier the same night the appellant pulled a gun on a patron of a drive-in. The first incident was totally unrelated to the second and the Arkansas Supreme Court held it should not have been admitted into evidence and the case was reversed and remanded for a new trial.
The Court of Appeals’ decision in Price v. State, supra, was reviewed and affirmed by the Arkansas Supreme Court which held that the evidence of other crimes offered under Rule 404(b) should be scrutinized under the provisions of Rule 403. The court said:
Although Rule 404(b) does not expressly provide for a balancing test with respect to the prejudicial effect of other crimes evidence where independent relevancy is established, the primary reason for excluding such evidence in the first instance is its prejudicial nature. Since an objection to the admission of other crimes evidence inherently raises an issue of prejudice, it is mandatory for the trial judge to also review the objections under the evidentiary standards prescribed by Rule 403. Therefore, other crimes evidence will be admitted only if it has independent relevancy and its relevancy is not “substantially outweighed” by the danger of unfair prejudice.
Price v. State, 268 Ark. 535, 539, 597 S.W.2d 598 (1980).
While the court did not say how the trial judge is to perform the Rule 403 “balancing test” the case of United States v. Sangrey 586 F.2d 1312 (9th Cir. 1978) is cited as authority that the test should be made and Sangrey said “we refuse to require a mechanical recitation of Rule 403’s formula on the record as a prerequisite to admitting evidence under Rule 404(b).” Price also cited United States v. Conley, 523 F.2d 650 (8th Cir. 1975), cert. denied, 424 U.S. 920 (1976), which says a judge admitting such evidence should immediately caution the jury about its use unless the cautionary instruction is waived.
In the first Price case, 267 Ark. 1172, 599 S.W.2d 394, the Court of Appeals referred to authority which suggested that one consideration in determining whether evidence of other acts is admissible under Rule 404(b) might be the strength of the proffered evidence itself — could the j ury believe the acts occurred — and in the recent case of Golden v. State, 10 Ark. App. 362, 664 S.W.2d 496 (1984), we referred to authority which indicated that the probative value of Rule 404(b) evidence might correlate inversely to the strength of the prosecution’s case.
In Thomas v. State, 273 Ark. 50, 55, 615 S.W.2d 361 (1981), the court said that it would be wise not to hold evidence of other crimes, wrongs, or acts inadmissible as a matter of law and leave it instead to the trial court’s discretion, subject to a case-by-case consideration. Although we are reluctant to interfere with that discretion, we have concluded in this case that the evidence, that appellant had an argument with another man earlier the same night and that he waved a pistol around during that argument, should not have been admitted. It was unrelated to the shooting for which the appellant was charged and tried and we fail to see its relevancy to the later incident. Moreover, the evidence of the earlier incident is indefinite and lacking in detail, and the evidence of the shooting with which appellant was charged is fairly strong.
Since the case must be reversed and remanded for a new trial, it is necessary to discuss the second point raised in this appeal. Knowing that his credibility could be attacked under Uniform Evidence Rule 609(a), the appellant moved in limine that the state not be allowed to question him concerning certain previous convictions. His attorney told the court that the appellant had been convicted for manslaughter and for a drug violation. It was his request that the state be confined to asking whether the appellant had been convicted of a felony. He contended that the number of convictions and the crimes for which appellant was convicted were irrelevant. The motion was overruled by the court and the appellant argues in this appeal that he could have been properly impeached by the previous felony drug conviction and that it was prejudicial error to allow the state to show the previous manslaughter conviction in this case where appellant was charged with attempted murder. The appellant says the reason he did not take the stand was because he did not want to risk impeachment by the highly prejudicial manslaughter conviction.
We note first that Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983), holds that the situation where a defendant asks for an advance ruling holding that he not be exposed to cross-examination about certain convictions is subject to abuse in that he may not intend to testify at all and yet ask for a ruling with the hope of leading the trial judge into reversible error with a possibility of a new trial and a second chance of acquittal. Therefore, the court adopted the following rule:
In future cases, to preserve the issue for review, a defendant must at least, by a statement of his attorney: (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609.
We also note that neither this court nor the Supreme Court has established any mechanical formula to be followed in performing the balancing test required by Rule 609(a). In Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982), we held that the trial court has a great deal of discretion in determining whether the probative value of the evidence of a prior felony conviction outweighs its prejudicial effect, and that the decision of the trial court should not be reversed absent an abuse of that discretion. In Williams v. State, 6 Ark. App. 410, 644 S.W.2d 608 (1982), we said this weighing process must be decided on a case-by-case basis and our statement in Williams was noted by the Arkansas Supreme Court in Floyd v. State, 278 Ark. 342, 346, 645 S.W.2d 690 (1983), as being a correct statement of the law.
In Floyd the court also rejected the argument that when the defendant takes the stand and admits he has been convicted of a felony he has been impeached and the state should not be allowed to further impeach him. To the contrary, the court said he may be asked “how many times he has been convicted.” The same issue was involved in Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982), where, as a concurring opinion points out, the defendant wanted to limit the evidence of prior convictions to the fact of conviction, 6 Ark. App. at 398. The majority opinion held that “there was no abuse of discretion in the trial court’s decision to allow the state to impeach appellant’s credibility by naming the previous felony convictions.”
For the reasons we have indicated, the judgment in this case is reversed and it is remanded for a new trial.'
Cooper and Glaze, JJ., concur. | [
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Tom Glaze, Judge.
This case involves a commercial lease dispute. The twenty-year lease in controversy was first entered into between Nickerson & Nickerson, Inc. (Nicker-son) and appellee on March 9, 1969. Until 1979, Nickerson used the leased site for a Nickerson Farms Store which sold food, gifts, candy and petroleum products. During the period Nickerson operated its store, it sold gasoline only and its rental payment to appellee was in part based upon the amount of gasoline sold each month. In 1980, Nickerson assigned its lease to appellant. Appellant continued to sell gasoline, but it also altered the business facility to sell diesel fuel and to service large trucks. In June, 1981, appellee filed suit to reform the original lease agreement to require appellant to pay rent based both on gasoline and diesel sales or alternatively to cancel the lease. Appellee later amended its complaint, requesting that appellee be enjoined from selling petroleum products other than gasoline and from operating the premises as a truck stop. Appellant answered, asserting it had complied with the lease provisions and requesting dismissal of appellee’s complaint. After a full trial and the submission of briefs by the parties, the chancellor granted the injunction appellee requested but alternatively permitted appellant to elect to pay rental based upon monthly sales of both gasoline and diesel. On appeal, appellant contends the chancellor erred in admitting parol testimony which served as the basis for finding the appellant violated the stated or primary purpose of the parties’ lease. We agree with appellant’s contention, and therefore reverse.
Under the lease agreement, appellant is required monthly to pay $ 150 plus one-half cent per gallon on gasoline sales. The primary purpose of the lease, set forth in paragraph 7, provides:
The leased premises are to be used as a site for a Nickerson Farms Store for the sale of food, gifts, candy, petroleum products and other merchandise customarily handled by such stores; and for the conduct of any other lawful business; and the Lessee is hereby given the right to sublease or underlet said premises or to assign the whole or any part of the term of this lease.
Although the foregoing provision provides for the sale of “petroleum products,” the trial judge determined the parties contemplated the sale of gasoline only. The chancellor based this finding in large part upon appellee’s testimony, and his purported conversations with Nicker-son’s president. Appellee indicated these conversations took place prior to their executing the lease. In sum, appellee testified (over appellant’s objection on hearsay and parol evidence grounds) concerning what the parties meant by the term “Nickerson Farms Store” as that term was used in paragraph 7 of the lease. Appellee stated that Nickerson’s president said that he intended Nickerson to cater to the “elite motoring public” which he defined as the “people who would travel the freeway in good cars....” He quoted Nickerson’s president as also saying, “he didn’t want diesel pumped there, ’ ’ and “[h]e was only going to pump gasoline, because it degraded into the type thing that didn’t work good for his cafe operation [and] his gift shop operation. ...” Appellee further testified that he owned property adjacent to the leased tract and that his development of that property depended upon the family traffic to which Nickerson catered.
Given the appellee’s parol testimony and its significant import, we must determine if its admission violated the parol evidence rule. Of course, that rule excludes oral testimony that would contradict or vary the terms of a written contract, but the rule does not preclude an oral explanation of an ambiguity in the agreement. Peevy v. Bell, 255 Ark. 663, 501 S.W.2d 767 (1973). Appellee cites the Peevy case as an example of when the admission of parol evidence is proper. There Peevy sold Bell “the Tandy Homes Franchise” for Springdale, Arkansas, and the surrounding area. Bell later brought suit for breach of contract, alleging Peevy failed to assign him three contracts that existed at the time of the sale and which were for the construction of Tandy homes. Under the franchise purchased by Bell, no one else could build a Tandy home; thus, a factual issue arose regarding what was meant by the description, “the Tandy Homes Franchise,” and whether the three construction contracts in question came within that description. The Supreme Court permitted parol testimony on what a Tandy Homes Franchise was because the parties’ agreement merely recited the term without one syllable in the instrument explaining what a Tandy home was or what the franchise included.
The instant case significantly differs from the facts in Peevy because the purpose clause (paragraph 7) of the parties’ lease agreement does set forth specifics from which their intent can be gained. First, Nickerson, among other things, could sell petroleum products, and even appellee does not argue that diesel fuel is not generically, at least, a petroleum product. Clearly, if appellee had desired to exclude diesel, he could have required that exclusion in his original lease with Nickerson. Second, the parties also permitted Nickerson to conduct “any other lawful business” on the premises. No question is raised that diesel could not lawfully be sold on the site; appellee only argues that the parties did not intend for it to be sold. Neither was a restriction placed on other types of business to be conducted, except that they be lawful. Again, if appellee had intended to exclude diesel sales, he easily could have inserted that restriction in the lease. Third, as appellant points out, Nickerson was given the unfettered right to assign or sublease to anyone. In fact, Nickerson had assigned its lease to others before appellant acquired the business site, and the only difference in the business operation occurred when appellant began selling diesel. From our review of the lease agreement, we see no ambiguity in its terms, and the only real confusion over what the parties intended arises from the parol testimony given by appellee. That testimony is simply in conflict with the plain written terms in the lease.
In reaching the conclusion that the trial court erred in permitting appellee’s parol testimony, we must also consider the chancellor’s legitimate concern that if allowed to sell diesel, appellant might halt the sale of gasoline and sell diesel fuel exclusively. If this were to occur, appellant would not pay monthly-gallonage rent since the lease required such rent only on gasoline sales, not diesel. Under these circumstances appellant would pay only its base rent of $150 per month. We quickly add that at this stage, appellant not only has continued gasoline sales, but the gasoline gal-lonage rent it has paid appellee is almost double the amount received from the prior operators. Our Supreme Court, quoting from 51 C.J.S. Landlord and Tenant, § 337b said:
[A] covenant that premises shall be used for a specified purpose does not impliedly forbid their use for a similar lawful purpose which is not injurious to the rights of the landlord.
Amisano v. Shaw, 214 Ark. 874, 218 S.W.2d 707 (1949) (emphasis supplied).
Here, appellant altered the two gasoline islands operated by Nickerson so diesel could be pumped. Nevertheless, it retained one gasoline island, added two hoses and continued use of the same number of hoses (4) to pump gasoline as did Nickerson. These changes certainly did not injure appellee or reduce his rental receipts. To the contrary, appellant’s gasoline sales have exceeded those of the prior lessees, including Nickerson. Clearly, had appellant chosen to halt its sale of gasoline, our decision, applying the rule in Amisano, supra, would be different. Also, should appellant choose to stop gasoline sales, it runs the risk of violating another rule that sometimes arises in situations (similar to the one here) in which rent is based on a percentage of yield from a particular use designated under the lease. In such situations, courts have found an implied covenant under the percentage-rental lease agreements and have required the lessee to continue the designated use and sales. See Sinclair Refining Co. v. Giddens, 54 Ga.App. 69, 187 S.E. 201 (1936) (citing Davis, court reached same result); Sinclair Refining Co. v. Davis, 47 Ga. App. 601, 171 S.E. 150 (1933) (court found that failure to continue operating for sale of gasoline defeated object of lease); Mutual Life Insurance Co. v. The Tailored Woman, Inc., 123 N.Y.S.2d 349 (953) (court found implied covenant to conduct business in substantially same manner as before); Cissna Loan Co. v. Baron, 149 Wash. 386, 270 P. 1022 (1928) (court found lessee leasing on sales percentage basis liable for percentage of total sales even though he moved two departments into adjoining building); see also Annot., 170 A.L.R. 1113 (1947); Annot., 38 A.L.R.2d 1113 (1954); and 3 G. Thompson, Commentaries on the Modern Law of Real Property § 1147 (1980). Contra Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31 (1953) (court found no implied covenant when a guaranteed substantial minimum rental was paid); Hicks v. Whelan Drug Co., 131 Cal. App. 2d 110, 280 P.2d 104 (1955) (court discussed, but did not find, an implied covenant to operate business for mutual profit of lessor and lessee). The foregoing cases involving implied covenants prove only instructive because here the chancellor’s concern over appellant’s possible curtailment of or reduction in gasoline sales has not been realized. Thus, we need not reach that issue.
Because we find that the parties’ lease agreement was unambiguous and that the trial court erred in admitting parol testimony explaining it, we reverse this cause with directions to dismiss appellee’s complaint.
Reversed and dismissed.
Mayfield, C.J., and Corbin, J., agree.
The record reflects the appellee made no effort to develop his adjacent property during the more than ten-year period the leased tract was operated by Nickerson. | [
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James R. Cooper, Judge.
This- is the second appeal of this case. In an opinion (not designated for publication) delivered March 11, 1981, we remanded this case to the Board of Review so that it could conduct a new hearing and provide an opportunity for appellant to submit proof as to certain matters.
Appellant was initially denied benefits by the Agency because he indicated he had left his job in Texas on August 22, 1980, because of certain conditions in Texas. He specifically indicated that the cost of living in Texas was too high; that he wanted his daughter to go to a smaller school; that there were no hunting areas where he lived, and only one fishing lake, and that traffic was congested on his way to and from work. After the Agency denial, appellant wrote the Appeal Tribunal, stating that his real reason for quitting was to accompany his wife to a new job as a cook in a school cafeteria at Bodcaw, Arkansas. The Appeal Tribunal, in the original decision which was affirmed by the Board of Review, found that appellant voluntarily quit his last work without good cause connected with his work.
Under Ark. Stat. Ann. § 81-1106 (a) (Supp. 1981), a claimant shall not be disqualified if he quits his work “to accompany his spouse to a new place of residence if he has clearly shown, upon arrival at the new place of residence, an immediate entry into the new labor market and is, in all respects, available for suitable work.” Since the question of whether appellant had immediately entered the labor market was not fully developed we remanded the case.
On remand, the Board of Review restated appellant’s original statements concerning the cost of living and other factors in Texas and then found:
After a study of the testimony presented, the Board of Review finds that the claimant did accompany his spouse to a new residence and that upon arrival at the new residence, he made an immediate entry into the new labor market, but it is evidence (sic) from the claimant’s statements that the claimant had voluntarily decided to quit his last work for personal reasons made prior to his wife being under contract. The fact that his wife’s contract became effective August 25, 1980, might have determined the date of claimant’s termination, but the causes for the claimant quitting his job, as well as the causes for his wife being under contract, were for the personal reasons which the claimant confirmed throughout his testimony and cannot be considered to be within the intent or meaning of § 5(a) of the Arkansas Employment Security Law. The Board of Review rules that the claimant is disqualified for benefits under the provisions of the above section of the law.
Ark. Stat. Ann. § 81-1107(d)(7) provides that findings by the Board of Review, if supported by evidence are conclusive and the jurisdiction of this Court is confined to questions of law. It is obvious that the Board of Review determined both questions of fact and issue in favor of appellant, that is, that he did leave his prior employment to accompany his spouse to a new job, and that he did immediately enter the labor market. However, the Board of Review appears to have added a third requirement which we do not find in the statute. The Board indicated that where an individual seeks work at a new place of residence and is planning to leave prior to the time his spouse acquires a new job that somehow this should disqualify him as being contrary to the intent of the Employment Security Law. There is certainly no such requirement in the statute and we find that no such requirement is appropriate or allowable. In fact, the Board’s comment that his causes for quitting his job as well as the reasons for his wife obtaining new employment were for personal reasons is confusing. It is extremely difficult to conceive of any set of facts where that would not be true. The decision of a family to relocate either because of a transfer or because of a desire to better themselves is always a personal decision and we can conceive of virtually no set of circumstances where the decision to move to a new place and obtain employment would not be denominated a personal choice. In any event, no such requirement appears in the statute and, since the Board of Review has specifically found that claimant met the requirements of Ark. Stat. Ann. § 81-1106 (a) (Supp. 1981), its decision must be reversed and the case remanded with instructions to award benefits to appellant as provided by statute.
Reversed and remanded.
Cloninger, J., dissents. | [
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James R. Cooper, Judge.
The appellee has moved to waive the abstracting requirement regarding the contents of a 911 tape that was introduced into evidence at trial. The appellee notes that no transcription of the tape was introduced at trial, and asserts that although the appellant failed to abstract the tape, the contents of the tape itself are necessary for a determination of the issues at hand.
Rule 4-2 (a) (6) of the Arkansas Supreme Court and Court of Appeals provides that, whenever an exhibit which cannot be abstracted in words must be examined for a clear understanding of the testimony, the appellant shall reproduce the exhibit by a suitable process and attach it to the abstract. However, the Rule also permits the appellate court to waive this requirement where it would be impractical. The appellee asserts in its motion that it would be impractical to abstract the tape and, in the absence of any opposition from the appellant, we grant the appellee’s motion.
Motion to waive abstracting requirement granted.
Jennings, CJ., and Mayfield, Rogers, and Neal, JJ., agree.
Robbins, Stroud, and Griffen, JJ., would remand. | [
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George K. Cracraft, Judge.
This is the second appeal in this case involving a boundary line dispute. On March 4, 1981 in an unpublished opinion we reversed that portion of a decree which vested title to a two acre tract in the appellees upon a finding on de novo review that appellant had failed to sustain her burden of proving adverse possession. In that same decree the chancellor found that both parties had failed to establish the common boundary line of their respective properties because of the vast variance between two surveys which were introduced and the admissions of both surveyors that neither had tied his survey to an established or known government corner. Both had been unable to reconcile existing monuments set by others, and neither was sure that his survey was a correct one. We remanded the cause and directed that further evidence regarding the location of the true boundary line between the properties be taken.
The parties are adjoining landowners and each has acquired his title by descriptions which make reference to subdivisions which were established in the General Land Office Survey of 1848. Appellant is the owner of the West three-fourths of the Southwest Quarter of the Southwest Quarter of Section 18 and appellees own the East one-quarter of that same Quarter-Quarter. As there has been no adverse possession established by either party, their common boundary lies along the line established in the original land office survey. Only by accurately locating that line could either establish his true boundary.
On remand, testimony of one of the two surveyors who had testified in the first trial was presented. After hearing this evidence the chancellor again found that the appellant had failed in her burden of proving the location of the true boundary line. We agree.
The surveyor testified that his subsequent field and office work convinced him that both surveys used in the prior hearing were in error but it was his opinion that his final survey was an accurate reconstruction of the General Land Office Survey of 1848. He stated that he found no GLO corners in the immediate area of the Southwest Quarter of Section 18 but that he did locate one monument mentioned in the original field notes and survey. Both the plat and survey made reference to a bluff 25 feet high on the west line of the Southwest Quarter of Section 7 (which is immediately north of Section 18). The field notes indicated that the surveyors had placed the west line of Section 7 at a certain point on that bluff which was 220 links west of the break in the bluff which they were required to utilize in an offset survey. From this certain point in the bluff he surveyed north until he found a mound of stones which was within 7 feet of the southwest corner of Section 7 set forth in the original field notes. He yielded the distance prescribed in the field notes to that monument and accepted it as the quarter corner of Section 7. In so doing he located the corner at a place other than that established in the field notes of the original survey.
Next, in locating the southwest corner of Section 18 he was required to run south from that starting point a distance of approximately a mile and a half. In the first segment of this subsequent survey he attempted to establish the northwest corner of Section 18. In doing so he did not survey south 1320 feet as directed in the field notes but south 00° 1T 20" west a distance of only 1314.46 feet, yielding the prescribed course and distance to a pile of stones near that point. In doing so he also located this corner at a location other than that established by the original surveyor as shown by his field notes. Although the GLO field notes established the quarter corner of Section 18 at a point south 2629.44 feet from the northwest corner, the surveyor, again “yielding” to another pile of stones, varied that course to south 00° 35' 10" east and the distance to 2657.92 feet. Although the original field notes also ran south 1320 feet to the southwest corner of Section 18 he, again yielding to a pile of stones in the vicinity, followed the course 00° 42' 20" west a distance of 1232.26 feet, again locating the corner at a point different from that at which the field notes of the original survey said it should be.
Not one of the three segments of this survey followed the course or distances set out in the field notes. By varying the distances the southwest corner of Section 18 as located by the surveyor would be approximately 20 feet north of the point at which the original surveyor described it. It is a simple matter of geometric calculation to determine that a variance of 00° 30' west for a distance of 1 mile would place the terminus approximately 41 feet west of a point which would have been reached by the same distance on a course of true south. The one and a half mile segment of this survey varied from the original course by more than half a degree and would place the corner considerably to the west of that prescribed in the field notes. We agree with the learned chancellor that this survey did not accurately establish the section line and that the appellant therefore did not meet the burden of proving her boundary.
In varying the courses and distances when yielding to monuments other than those established by the government surveys, the surveyor misunderstood the mission of a surveyor in establishing original government corners. At the time of the Louisiana Purchase this area was a vast wilderness, sparsely populated and with no integrated system of land descriptions. Early in the nineteenth century Congress authorized the General Land Office to survey and plat the entire area in order to give each parcel of land in the public domain a specific and identifiable location which would be subject to relocation by survey at any time. The field notes and plats of those surveys are carefully preserved and with few exceptions all lands in this area were disposed of by the Federal Government with reference to these surveys. Due to errors which were bound to occur, these surveys did not always result in perfect square mile sections of 640 acres with parallel boundaries. Survey parties did not always meet at the point previously calculated and some of the established section corners did not coincide with adjoining ones.
These approved GLO surveys formed the basis for the description of lands when disposed of by the government and any errors, including variances from prescribed courses, distances of acreages, were merged into the government grants. A patent or other original conveyance made with reference to a subdivision conveyed those lands which the General Land Office Plat showed it to contain. Little v. Williams, 88 Ark. 57, 113 S.W. 340 (1908) aff’d 231 U.S. 335 (1913). The purpose of subsequent surveys in locating corners and boundaries is not to correct any error or variance of the original surveyor but is to retrace his steps by use of his field notes and plats and to locate the corners where he located them.
The surveyor testified that he found no corner markers set by the original surveyors because they had long since disappeared. The field notes disclosed that the original surveyor marked all corners with wooden stakes and there is no reference to any corner in this vicinity having been marked by rocks. All of the witness monuments except for the possible exception of the 25 foot bluff have been obliterated. Unless the various piles of stones to which this surveyor yielded were shown to have been located where the plat and field notes said they should be, they were of no significance and it was error to yield to them. The Manual of Surveying Instructions published in 1973 by the United States Department of the Interior, Bureau of Land Management, sets out the prescribed method of relocating lost corners. The surveyor testified that he was familiar with that manual and that the methods prescribed by it were accepted as good practice in the surveying profession.
He further testified that, even if his corners had been properly established, good surveying methods would require him to have tied the location of the southeast corner of Section 18 to some known corner to the east of it. He did not do this because he said things in that area were so “messed up” that it would have required an expenditure in excess of $10,000 to accurately locate this property line. The court found from the surveyor’s testimony that depending on the location of a known corner to the east, the location he established could still vary as much as 15 feet in any direction. The chancellor’s finding that a survey containing the possibility of error of this magnitude does not meet that degree of certainty required in the establishment of boundaries between adjoining property owners is not clearly erroneous. Wilson v. Brandenburg, 252 Ark. 921, 481 S.W.2d 715 (1972).
We affirm.
Cooper and Cloninger, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Allen R. Lee and Glenna R. Lee were divorced by a decree which made provision for custody, support and alimony and disposed of their personal property. By stipulation of the parties the court postponed the division of the balance of their property until a later date as authorized in Forrest v. Forrest, 279 Ark. 115, 649 S.W.2d 173 (1983). Several years elapsed before the matter of property settlement was determined by the court.
The parties had been separated for over a year before the divorce decree was entered. While separated, but before the decree was entered, Allen purchased a home in which he resided until after the divorce had been granted. No marital funds were used in the purchase of that property which he bought entirely with borrowed funds. Nearly a year after the divorce Allen Lee sold the home for a net profit of $9,000.
In the order now appealed from the chancellor entered judgment for the wife for one-half of the profit derived from the sale of the residence and allowed her attorney’s fee and costs. The appellant brings this appeal contending that the trial court erred in granting the judgment because the property had been acquired by the husband while separated from the wife and should therefore be treated as his separate property. We do not agree.
Both parties argue that the law applicable to the issue is Ark. Stat. Ann. § 34-1214(B)(3) (Supp. 1979) which provides in pertinent part as follows:
For the purpose of this statute “marital property” means all property acquired by either spouse subsequent to the marriage except... (3) property acquired by a spouse after a decree of legal separation.
Appellant argues that although the parties had not obtained a decree of separate maintenance at the time the property was acquired they had been separated for a time and “a narrow application of the statute to the facts.would be inequitable.” The clear wording of the section exempts from marital property status only that property acquired by a spouse after a decree of legal separation. Had the legislature intended to also exclude property acquired after separation by mutual consent it might easily have said so. The property in question was marital property.
Section 34-1214(B) merely defines the term “marital property.” Its disposition is governed by sub-section (A)(1) which provides that all such property shall be divided equally unless the court finds such a division to be inequitable after giving consideration to nine specified factors. Had the chancellor found an equal division of that property inequitable he could have divided it differently.
From our review of the record we find nothing which would compel the chancellor to make a division other than an equal one. The appellant is a cardiologist and since the divorce he has prospered. According to the tax returns contained in the record he had gross income of over $200,000 in 1982 and had substantial investments in other properties and tax shelters. The appellee, on the other hand, had take-home pay of $465 per month. The record is not clear as to the income of the appellant at the time of the divorce but the record does disclose that he was then practicing medicine and that his prospects for future acquisition far exceeded those of the appellee. We cannot conclude that the chancellor abused his discretion in making an equal division of marital property.
Appellant next contends that the court erred in awarding judgment against the appellant for costs and for the attorney’s fees. It is well established that the allowance of fees is within the sound discretion of the trial court and will not be disturbed on appeal in the absence of a showing of clear abuse. Ford v. Ford, 270 Ark. 349, 605 S.W.2d 756 (1980). There are many factors the court can consider in determining whether to grant attorney’s fees and in what amount. As stated previously the appellant’s income form his practice of medicine alone was in six figures. The wife’s net income other than alimony and child support was less than $6,000 a year. There was evidence that in order to maintain herself and her children in their accustomed station in life she was required to expend all of the alimony, support and her own income in maintaining the family. We cannot conclude that there was any abuse of discretion by the chancellor in making this award.
Affirmed.
Glaze and Corbin, JJ., agree. | [
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Melvin Mayfield, Judge.
Appellants appeal from a probate court’s denial of their petition to adopt their granddaughter. Jim Montezuma, the girl’s natural father, cross-appeals from a chancery court’s refusal to give him custody of the child. Both matters were heard by the same judge who consolidated the chancery and probate cases for hearing and entered the same order in both cases. This procedure was followed in McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983) and Lindsey v. Ketchum, 10 Ark. App. 128, 661 S.W.2d 453 (1983), and avoids any jurisdictional problem. Cf. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978) (probate court held without jurisdiction to award visitation rights in an adoption proceeding.)
Appellants are the maternal grandparents of Mandy, age 3, whose mother and father, Lisa and Jim Montezuma, were separated. Jim was 20 years old at the time of the hearing. He had left his teenage wife when Mandy was about a year and a half old. While hitchhiking to California, he got into some trouble and was serving three months in an Arizona jail when appellants first obtained custody of Mandy. At that time Lisa was living a carefree existence which exposed Mandy to an unsavory side of life involving drugs, sexual promiscuity, and venereal disease.
When released from jail, Jim went on to California, finished his high school education, and is now employed there. It was undisputed that he has never paid any child support. He testified, however, that he called the appellants’ home one time and got the impression that he would not be allowed to see Mandy. Lisa filed a written consent to the adoption but Jim opposed it alleging he is now in a position to support Mandy and wants custody of her. The appellants’ petition for adoption was denied, but they were allowed to retain custody. Jim was ordered to pay child support and he and his mother were granted visitation rights.
Appellants argue on appeal that the court erred in denying their petition for adoption. The Revised Uniform Adoption Act, Ark. Stat. Ann. § 56-207 (Supp. 1983), provides:
(a) Consent to adoption is not required of:
(2) a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
While the court in this case did find that the father had failed to see the child or support her for over one year, it also found that he was under no court order to support her and that he had unsuccessfully attempted to contact her. Of course, a parent has the obligation to support a minor child independent of order. Dangelo v. Neil, 10 Ark. App. 119, 661 S.W.2d 448 (1983). See also, Ark. Stat. Ann. § 57-633 (Repl. 1971). The fact that the father’s consent is unnecessary, however, does not require that the adoption be granted. The court must find that the adoption is in the best interest of the child. McKee v. Bates, supra. A probate court’s decision regarding a petition for adoption will not be reversed unless it is clearly erroneous (clearly against the preponderance of the evidence) and we must defer to the judge’s superior opportunity to assess the credibility of the witnesses. ARCP Rule 52(a); Henson v. Money, 1 Ark. App. 97, 613 S.W.2d 123 (1981). In the instant case the court must have found that it was not at this time in the child’s best interest to grant the adoption. We cannot hold that he was clearly wrong.
On cross-appeal, Jim argues that the chancellor erred in denying him custody of his minor daughter. He acknowledges that the standard for the court to apply is and must be the welfare and best interest of the child. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). He maintains, however, that when the contest is between the natural parent and the grandparents the law prefers the parent unless incompetent or unfit. Baker v. Durham, 95 Ark. 355, 129 S.W. 789 (1910), is cited as authority for that view. That case was more recently cited with approval in Perkins & Diggs v. Perkins, 266 Ark. 957, 589 S.W.2d 588 (1979).
We are not persuaded that the trial judge should be reversed on the custody issue. It is well settled that the chancellor, in awarding custody of an infant child, must keep in view primarily the welfare of the child, and should confide its custody to the party most suitable therefor. Kirby v. Kirby, 189 Ark. 937, 75 S.W.2d 817 (1934). We have said that in child custody cases a heavy burden is cast upon the chancellor to utilize to the fullest extent all of his powers of perception in evaluating the witnesses, their testimony and the child’s best interest; that we have no such opportunity; and that we know of no case in which the superior position, ability and opportunity of the chancellor to observe the parties carries as great weight as one involving minor children. Calhoun v. Calhoun, 3 Ark. App. 270, 625 S.W.2d 545 (1981).
Affirmed.
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George K. Cracraft, Judge.
The appellants, collateral heirs of Lillian Goucher, deceased, appeal from an order of the Probate court of Garland County admitting to probate as decedent’s last will a document executed by her on April 28, 1978. The appellee, Elsie Rapley, also a collateral heir of the testatrix, was named a principal beneficiary and executrix in the will. None of the other heirs at law of the testatrix werefavored in that will. The appellants, Lillian Gautney, Florence McDonald and Mildred Lumpkin, advanced six points of error. We find no merit in any of these points, and in this opinion will address them in the order in which they were presented in the briefs.
THE FACTS
The will in question was executed by the testatrix on April 28, 1978, in the office of the drafting attorney. The attorney and one of his secretaries signed the will as attesting witnesses. They testified in this proceeding that they had not known the testatrix prior to the first of her two visits to their office, and could not now describe her. Both testified that she was alert and competent at that time, read the will and declaring it to be her will, signed it in their presence. Both testified that she came to their offices for the execution of the will unaccompanied. The drafting attorney testified that she was also unaccompanied on her first visit, at which time she outlined to him the provision she desired incorporated in the proposed will.
It was stipulated that the testatrix was mentally com petent to execute the will and was of sound mind on the date it was signed. There was testimony from other witnesses including the appellant, Lillian Gautney, that her sound mental condition continued up to the time of her death on December 22, 1980, and that she was a “smart,” “knowledgeable,” “decisive” and “opinionated” person. While stipulating to the mental capacity of the testatrix, the appellants question the validity of the will solely on the ground that it was executed while she was unduly influenced by the appellee, her principal beneficiary.
In support of the contention that appellee had unduly influenced the testamentary disposition of the testatrix, appellants relied entirely upon statements purportedly made by the testatrix prior to her death. The court excluded that evidence as incompetent to prove undue influence. In the proffer of proof made in the record, appellant Gautney stated that the testatrix had stated to her and to others “my will is not the way I want it, but it is the only way Elsie (Rapley) will have it.” After the proffer of proof was concluded it was stipulated that the other two appellants, if called, would have made the same proffer. No direct or substantive evidence of undue influence was adduced.
At the conclusion of all of the testimony the trial judge ruled that there was no admissible evidence of undue influence on the part of the appellee that affected the testatrix’s testamentary disposition. Appellants appeal from that ruling.
I.
The appellants first contend that the court erred in admitting the will to probate on the testimony of the two attesting witnesses inasmuch as they stated that they had not previously known the testatrix and could not now describe her. This, they contend, negates the “positive identification of the signer.” The appellants cite no authority in support of that position and we have found none. In any event, it was not alleged or ever contended that the testatrix, Lillian Goucher, was not the person who signed the will in question. Appellants admitted in their motion that testatrix had signed the will, and contested its validity solely on the grounds that when she signed it her testamentary disposition was so unduly influenced by appellee that it was not, in fact, her own will.
If it was being contended that the person who signed the will in the offices of the attorney was in fact an imposter, that fact could easily have been proved by any person familiar with her signature. The signature on the will appearing to be genuine and unquestioned, the testimony of the attorney and secretary as to the circumstances under which that signature was affixed to the will is sufficient to sustain the finding of the trial judge that the will was executed in the manner required by law. Pennington v. Pennington, 1 Ark. App. 311, 615 S.W. 2d 391 (1981).
Furthermore it is to be noted that this question was not raised in the court below by the pleadings or arguments of counsel. It cannot be considered for the first time on appeal. McIlroy Bank & Trust Company v. Seven Day Builders of Arkansas, 1 Ark. App. 121, 613 S.W. 2d 837 (1981); Green v. Ferguson, 263 Ark. 601, 567 S.W. 2d 89 (1978).
II.
The appellants contend that the trial judge erred in excluding the appellants’ testimony as to statements made by the deceased concerning her will. Those statements were: “My will isn’t the way I want it, but it is the only way Elsie will have it.” We find no merit in this contention.
The court, in excluding the evidence, correctly stated the law as follows:
Mr. Gautney, in view of the cases that have been cited here, the fact that the inquiry has been limited solely to undue influence and not to the question of testamentary capacity — admittedly if we had testamentary capacity involved then those statements would be admissible, but when, as I read the cases, they are not admissible at all in a situation in which undue influence was the sole point. (Emphasis supplied.)
It is well settled in this state that statements and declarations of the testator, whether made before or after the execution of a will, are not competent as direct or substantive evidence of undue influence, but where testamentary capacity is in issue may be admissible to show the mental condition of the testator at the time the will was executed. Floyd v. Dillaha, 221 Ark. 805, 256 S.W. 2d 48. Our case law and Rule 801(c), Arkansas Rules of Evidence, generally define hearsay as an extrajudicial statement, offered to prove the truth of the matter asserted in that statement. Such statements are not objectionable hearsay if not offered to prove the truth of the matter asserted but merely to show that the statement was made. When the condition of a testator’s mind is placed in issue, declarations made by him may be received in evidence as external manifestations of his mental condition but not as evidence of the truth of those statements. On the other hand, where the declarations are offered to prove the truth of a fact asserted, such as having yielded to undue influence, the declaration, being offered to prove the truth of the matter asserted, is subject to the hearsay exclusionary rule. Milton v. Jeffers, 154 Ark. 516, 243 S.W. 60; Kennedy v. Quinn, 166 Ark. 509, 266 S.W. 462; Mason v. Brown, 122 Ark. 407, 183 S.W. 973; Floyd v. Dillaha, supra.
The mental condition of the testatrix was not in issue here, it having been stipulated that she was fully competent. The proffer was directed solely at the issue of undue influence. Such statements could orily be offered to prove the truth of the matter asserted — that Elsie had exercised undue influence over her. The statement was clearly hearsay and properly excluded by the trial judge.
III.
The appellants next argue that the trial judge erred in finding that there was insufficient evidence to establish an exercise of undue influence over the testatrix. We do not agree.
The argument is made that as appellee demurred to the evidence at the conclusion of the trial and the court’s ruling was made immediately thereafter, the evidence must be tested in accordance with rules applicable to such demurrers. The rule contended for is that the trial court has a duty to give the evidence in favor of the plaintiff its strongest probative value and to sustain the demurrer only if the party against whom dismissal is sought has failed to make a prima facie case. Nowlin v. Spakes, 250 Ark. 26, 463 S.W. 2d 650. While we conclude that the trial judge was ruling on the merits of the case at the time, we further conclude that his ruling was correct by either test.
The undue influence which invalidates a will requires a showing that the influence was of such a character as to destroy the testatrix’s free agency, in effect substituting another’s will in the place of her own, and must be directed toward the object of procuring a will in favor of a particular person or persons. Kyle v. Pate, 222 Ark. 4, 257 S.W. 2d 34. It is also required that the undue influence relied upon must be directly connected with the execution of the will. Orr v. Love, 225 Ark. 505, 283 S.W. 2d 667. Ordinarily the burden of proving undue influence is on the contestant. Werbe v. Holt, 218 Ark. 476, 237 S.W. 2d 478.
There was no evidence of any kind, apart from the proffered hearsay previously discussed, which would indicate any exercise of influence by the appellee over the testatrix. There was no evidence of the nature of their association, how frequently they might have seen each other, or of any action of the appellee which might indicate a dominant status. The record is completely silent as to their relationship and dealings with each other. The testimony further indicates that appellee did not accompany testatrix to the attorney’s office for either the conference or execution of the will. Absent the proffered hearsay there is not a scintilla of evidence tending to show undue influence. The trial court’s action in dismissing the petition contesting the will on grounds of undue influence was therefore proper, even if that ruling be treated as one sustaining a demurrer to the evidence.
IV.
The appellants next argue that the trial court erred in receiving a pre-trial memorandum filed by the appellee several days prior to the date of the hearing without allowing appellants an opportunity to respond.
We see no error in the trial court’s action in receiving such a memorandum. The document in question contains a clear, concise statement of the issues and resume of the testimony presented to the court by way of deposition. It points out to the court the appellee’s objection to the reception of the expected proffered hearsay, and cites cases in support of her position.
The record reflects that before the testimony was taken, the appellee orally asked the court to rule on her motion that the expected hearsay statements of the testatrix be excluded, referring to the cases cited in the pre-trial memorandum. Appellants’ attorney responded, outlining his position with regard to those statements and citing cases on which he relied, stating that he had expected the objection to come at the time the evidence was offered. The court overruled the motion to exclude the memorandum as not having been timely filed, indicating that at the time the evidence was offered, if he found it to be inadmissible he would afford appellants the right to make a proffer of proof. This was done.
We see nothing wrong in presenting to a trial court a pre-trial memorandum. In fact, in most cases it would be most helpful to the trial judge in his preparation and understanding of the case. While it would be better if both parties submitted such memoranda, we see no error flowing from acceptance of only appellee’s memorandum where it was not shown to be misleading or incorrectly citing the law. The issues were correctly stated and the cases cited therein are the same as cited by this court, and correctly state the applicable law. The cases referred to by appellants’ counsel in his opening statement are the same as those he relies on in his brief in this court. Nothing contained in the memorandum could have in any way improperly influenced the court or prejudiced appellants in any way. We find no merit to this contention.
V.
The appellants finally contend that the trial court erred in taxing costs of the action against them. We find no merit to this contention.
Rule 54 (d), Rules of Civil Procedure [Ark. Stat. Ann. vol. 3A (Repl. 1979)], expressly provides that except when express provision therefor is either made in a statute or the rules, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs. Rule 1, Rules of Civil Procedure [Ark. Stat. Ann. vol. 3A (Repl. 1979)], expressly states that those rules govern the procedure in probate courts. Appellants refer us to no statute or rule which requires that a court direct the costs of an unsuccessful contest of a will be borne by the estate. We find no error in the court’s action.
VI.
Appellee urges in her brief that appellants’ appeal be dismissed pursuant to Rule 9 (e), Rules of Civil Procedure [Ark. Stat. Ann. vol. 3A (Repl. 1979)], for failing to abstract those portions of the record containing the appellee’s pretrial memorandum and the holdings of the court.
Rule 9 (e) (1), Rules of the Supreme Court and Court of Appeals, provides that if an appellee considers the appellant’s abstract to be defective, he may, in his printed brief, call the deficiency to the court’s attention and, at his option, may submit a supplemental abstract. When the case is considered on its merits the court may impose or withhold cost to compeiisate either party for the other party’s noncompliance with this rule. It further provides that in seeking an award of costs under this paragraph, counsel must submit a statement by the printer showing the costs of the supplemental abstract and a certificate of the amount of time devoted in the preparation of it.
The appellee elected in her brief to cure the deficiency by abstracting the missing portions referred to. The cost of printing the missing portion of the abstract will be allowed in the amount set forth in appellee’s position. We do not feel that the deficiency is of such a substantial nature as to warrant allowance of attorney fees.
We affirm. | [
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Lawson Cloninger, Judge.
This appeal questions the validity of a deed executed by Albert Neal and his wife, Mary Neal, and a will executed by Albert Neal, on January 8, 1976. Mary Neal died on February 28, 1976, at the age of 81, and Albert Neal died on June 26, 1976, at the age of 91. The chancery court action seeking to set aside the deed and the probate court action seeking to set aside the will were consolidated for trial.
The appellee, Cleo Jackson, is the grantee in the contested deed and is the principal beneficiary under the terms of Albert Neal’s will. Appellant David Neal, the natural son of Albert Neal, and Daisy Neal, the wife of David Neal, filed actions to set aside the deed and the will on the grounds that Albert Neal and Mary Neal were mentally incapable of executing the instruments, and that they were subject to fraud and undue influence exercised by Cleo Jackson.
The trial court held that Albert Neal was mentally capable of making the will and the deed; that there was no fraud or undue influence exercised by Cleo Jackson; and that it was not necessary to determine the competency of Mary Neal, because title to the land was in Albert Neal alone, and therefore when Mary Neal predeceased Albert Neal any rights in the property which Mary Neal might have had by dower or homestead expired. The petition of appellants to set aside the deed and the will were dismissed by the trial court.
For reversal, appellants argue that (1) The will of Albert Neal was not executed according to Arkansas law; (2) The court erred by not setting aside a dismissal of appellants’ petition to set aside the deed; (3) Albert and Mary Neal lacked mental capacity to make a deed or a will; and (4) They were subjected to undue influence and fraud.
We find no merit in appellants’ arguments as to points 1 and 2, but we must reverse the decision of the trial court as to points 3 and 4.
Appellants, for their first point, argue that the will of Albert Neal was not properly executed because the person who wrote Albert Neal’s name near Albert’s mark did not sign as a witness to the signature. Ark. Stat. Ann. § 60-403 (Repl. 1971) provides:
Execution. The execution of a will ... must be by the signature of the testator and of at least two (2) witnesses as follows:
a. The testator shall declare to the attesting witnesses that the instrument is his will and either ...
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature ...
Neither Ark. Stat. Ann. § 60-403, supra, nor the holding in Green v. Smith, 236 Ark. 829, 368 S.W. 2d 280 (1963), relied upon by appellants, requires that the person who writes the name of the testator near his mark must also sign as a witness to the signature or as a witness to the instrument itself. In this case there were two witnesses to the mark of the testator, and merely because neither of these witnesses wrote the testator’s name near his mark is of no consequence.
Appellants, for their second point for reversal, urge that the trial court should have set aside the Rule 10 dismissal of appellants’ petition to set aside the deed executed by Albert and Mary Neal to Cleo Jackson. The petition was filed on November 18, 1976. The Uniform Rules for Circuit and Chancery Courts, Rule 10, provides that a court docket may be cleared of any case upon which no action has been taken for one year. Dismissal is specified to be without prejudice. Pursuant to Rule 10, appellants’ petition was dismissed on October 13, 1978, and appellants, on October 31, 1979, alleging justifiable cause, moved to reinstate the petition. The trial court found in the case now before the Court that the Rule 10 dismissal was with prejudice, thus barring any further proceedings in this case. The trial court, however, held that notwithstanding the dismissal, the court would make a determination of the petition on its merits. The trial court should have held that the Rule 10 dismissal was without prejudice to another action, but inasmuch as the court heard and decided the petition to set aside the deed on its merits, and none of the parties objected to the court’s actions, the trial court’s action is approved.
The questions of mental capacity and undue influence, points 3 and 4 relied upon for reversal by the appellants, are so closely interwoven that they will be considered together. In Phillips v. Jones, 179 Ark. 877, 18 S.W. 2d 352 (1929), the Court said:
As we have said, the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the Court necessarily considered them together (St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S.W. 298), for in one case where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age ... The facts constituting undue influence largely depend upon the condition of the mind of the person alleged to have been influenced. It has been said in the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, that if one is of such great weakness of mind as to be unable to resist importunity, and his act is not that of a judgment deliberatedly exercised, but the result of the control of a stronger mind by any means or artifice, cunning or fraud, that act is void.
The totality of the circumstances leading up to and culminating in the execution of the deed and the will in the case before the Court has to be examined before a picture emerges, and it will be necessary to set out those circumstances in some detail.
David Neal was the son of Albert Neal and Ernestine Ellaby. David’s parents were not married, and in 1950 when David was four months old he was sent to live with Albert Neal and Albert’s wife, Mary. David lived with Albert and Mary Neal continuously from 1950 to December 13, 1975, at which time Albert and Mary Neal moved out of their home and went to live in a house trailer parked behind the residence of appellee. It is virtually undisputed that David was Albert’s son, and that Albert and Mary Neal gave David their name and treated him as a son. David and Daisy Neal were married in 1971, and after that time David and Daisy lived with Albert and Mary. Daisy did the cooking and cleaning for the family, and paid most of the bills; David took care of the livestock on the farm and he also had a job. David testified that Albert and Ma£y<Neal promised him all they had if he would stay and take care of them, which he did. Albert and Mary Neal executed a deed to David. Neal for one-half acre of land in 1971, and in 1974 a new brick house was built on the one-half acre. The deed to David Neal recited in the consideration clause that the deed was given because of “the love and affection we hold for the grantee, our grandson.” A thirty-year mortgage for $13,500 was given to finance the house, signed by Albert and Mary Neal, and by David and Daisy Neal.
Mary Neal had a light stroke early in December, 1975, and was treated in her home by a physician. On December 8, 1975, Mary Neal became convinced that David and Daisy Neal had taken one of her deeds, an abstract, and $1,500. Daisy Neal testified that Cleo Jackson told Mary Neal that Daisy Neal took the items and the money, but this is denied by Cleo Jackson. An unidentified person called the sheriff and reported the theft. David and Daisy Neal were taken to the sheriff’s office and questioned, where it was discovered that the money was still in the bank, and David and Daisy Neal were cleared. Cleo Jackson took Mary Neal, to the sheriff’s office that same day, and then took Mary Neal to an attorney’s office where Mary Neal discussed the making of a deed and a will. On December 10, 1975, Cleo Jackson took Mary Neal to West Memphis, where she selected a house trailer and bought it. Mary Neal paid $1,000 on the purchase price and Cleo Jackson paid $500. A promissory note in the sum of $3,300 was signed by Albert and Mary Neal and Cleo Jackson for the balance of the purchase price. On December 13, 1975, Albert and Mary Neal moved out of their house and into the trailer, which had been placed immediately behind Cleo Jackson’s house. On January 6, 1976, Cleo Jackson took Albert and Mary Neal to Dr. Daniel Toneyman’s office and obtained a certificate from Dr. Toneyman that Albert and Mary Neal were competent to transact their affairs.
About 8:00 a.m. on January 8, 1976, Albert and Mary Neal executed instruments styled joint or reciprocal wills “in reliance upon our mutual agreement to dispose of our respective property ...” Albert’s will provided that Mary was to take everything if she survived him; in the event she predeceased him, he devised to David Neal his house and the half acre on which it is located; all the remainder of his property was devised to Cleo Jackson. The will recited that Albert Neal was that date selling Cleo Jackson his land, and the will provided that if any portion of the purchase price of the land was owing at Albert’s death, the unpaid balance should be cancelled. The will recited that he and Mary had not had any children; that they had raised David Neal, but had not adopted him; that they loved him and wanted to provide for him to a certain extent. Mary Neal’s will is identical to that óf Albert Neal’s. At the same time, Albert and Mary Neal executed a deed to their thirty-six acres of land to Cleo Jackson for a consideration of $9,000, $2,000 of which was paid, and the balance to be paid at the rate of $1,000 annually.
On January 12, 1976, Mary Neal was hospitalized, suffering from arteriosclerotic heart disease, congestive heart failure, dehydration and malnutrition. She was admitted to the hospital again in February, 1976, suffering from heart failure and chronic brain syndrome. She died on February 28, 1976. Albert Neal went to Chicago in April to live with Mary Neal’s niece, and he died there on June 26, 1976.
The instruments were executed in the house trailer of Albert and Mary Neal. The attorney who prepared the instruments was present, as were Cleo Jackson, his son, his daughter, and five others who had been brought there for the purpose of witnessing the execution of the instruments. The witnesses were friends of Cleo Jackson, and were picked up and brought to the house trailer by Cleo Jackson and his son. The group was there for more than an hour, and Albert was seated in a chair near the bedroom of the trailer. Mary was in bed. The attorney read the wills, pausing on occasion to ask Albert and Mary if they understood; the attorney said that Albert nodded twice in acknowledgment, but the other witnesses did not observe that. Neither Albert nor Mary said the instruments were their wills, nor did they ask the witnesses to be witnesses. Albert and Mary Neal made their marks, the attorney wrote the name of each by the marks, and the marks were witnessed. The attorney testified that Albert and Mary Neal were aware of what they were doing. Mary Butcher, age 83, a friend of the Neals as well as a friend of Cleo Jackson, testified that Mary’s mind was all right; when she was asked if Albert’s mind was clear that day she gave no answer. Mary Neal had a conversation with Mary Butcher the day the instruments were executed, but the only time Albert spoke was to ask one of the witnesses if he was the son of an old acquaintance of Albert’s. The witnesses testified that Albert and Mary Neal “touched the pencil, the pen, and made an X.” They stated that the attorney made it very plain that they were witnesses that they touched the pencil and made the X.
The evidence relating to the mental competence of Albert and Mary Neal is in conflict. Dr. Daniel Toneyman had been their physician for several years before their deaths, treating them both for high blood pressure and enlarged hearts, and examined them two days before the instruments were executed; however, Dr. H. B. Oldham treated Mary Neal on January 12, 1976, four days after the execution of the instruments, when Mary Neal was admitted to the hospital in a “state of semicomatose, very malnourished.” Dr. Oldham stated that the malnourishment would have had to have been present for at least several weeks. Mary Neal was treated again by Dr. Oldham on February 6, 1976, when she was hospitalized again in a state of coma; her temperature was 95° and she was almost frozen; the doctor testified that she was at the time 81 years old, senile, and suffering from chronic brain syndrome; he testified that at all times when he treated her, she was not responsible for her actions.
A number of old friends of Albert and Mary Neal testified, and their testimony was in conflict. There was evidence that Albert and Mary Neal did not even acknowledge their presence. There was evidence that Albert and Mary Neal stopped going anywhere, even to church, several years before their deaths; that Mary Neal didn’t want to leave Albert because Albert didn’t think well, and that she had to take care of all the business. There was also evidence that Albert denied selling his land after the deed was given. Other friends testified that Albert and Mary Neal were aware of what was going on, and were as alert as others their age. As is usually the case, the people who saw them daily have a vital interest in the outcome of this case, and their testimony has to be weighed accordingly.
David and Daisy Neal testified that Albert and Mary Neal were unable to help with any of the work around the house and farm the last ten years of their lives; that Albert was like a baby, and that when he went to the bathroom alone he would use the bathtub, thinking it was the commóde. Cleo Jackson stated that Albert and Mary Neal were aware of their property and what they wanted to do with it; that they were able to do things for themselves, and that he did not influence them in anything they did; that he, Cleo Jackson, was not really aware of what the will provided for, although he was executor, at the time of the trial.
The rule for testing undue influence was laid down in the early case of McCulloch v. Campbell, 49 Ark. 367, 5 S.W. 590 (1887), and the rule has been restated in many subsequent cases:
[T]he fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties ...
Undue influence may be inferred from facts and circumstances. Alford v. Johnson, 103 Ark. 236, 146 S.W. 516 (1912). In Hyatt v. Wroten, 184 Ark. 847, 43 S.W. 2d 726 (1931), the Court stated:
[Undue influence] is generally exercised in secret, not openly ... its sinister and insidious effect must be determined from facts and circumstances surrounding the testator, his physical and mental condition as shown by the evidence, and the opportunity of the beneficiary of the influenced bequest to mold the mind of the testator to suit his or her purposes.
The burden of proving undue influence, incompetence and fraud which will defeat a will is on the party contesting the will. Thompson v. Orr’sEstate, 252 Ark. 377, 479 S.W. 2d 229 (1972). However, in the case of Short v. Stephenson, 238 Ark. 1048, 386 S.W. 2d 501 (1965), the Court stated that there was a rebuttable presumption of undue influence in the case of a beneficiary procuring the making of the will, and that the proponent of such a will must show beyond a reasonable doubt that the testator had both the required capacity and the freedom of will to make the will valid.
The will of Albert Neal provided that “... 1 give, devise and bequeath to David Neal, whom we have raised, our house and the one-half acre on which it is located ...”
The trial judge, in a memorandum opinion written to the attorneys for the parties, made this observation:
It must be further noted that Albert did not leave David out of his will altogether, but made what amounts to a fairly substantial provision for him. This indicates to the Court that Albert weighed the circumstances surrounding the making of the will, and came to a decision about them which he found to be satisfactory. If Albert were competent to do this (and we have found that he was), then the law gives him full leeway to do what he did. Our law does not require a testator to give preference to his blood relatives, to the exclusion of friends. We must only be careful to ascertain that the testator makes this selection free from any tainted influence. We find that Albert did so in this case.
The fact is, Albert Neal left nothing to David Neal in his will, because the house was built on the one-half acre which he and Mary had deeded to David Neal in 1971, and the devise of the one-half acre and the house was the only provision made for him in the will. The devise casts doubt upon the awareness Albert and Mary had as to the extent of their property. Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty.Hiler v. Cude, 248 Ark. 1065, 455 S.W. 2d 891 (1970). Short v. Stephenson, supra.
Procure means to cause a thing to be done, to bring about. There is evidence in abundance that Cleo Jackson procured the wills and the deed of Albert and Mary Neal. He was present and active at every stage of the events leading to the execution of the wills and the deed; when Mary Neal thought that David and Daisy Neal had taken her property, Cleo Jackson was at their house, and it was Cleo Jackson who took Mary Neal to the sheriff’s office and then directly to the attorney’s office to discuss the making of the will; two days later Mr. Jackson took Mary Neal to West Memphis to select a house trailer, and he not only paid $500 down on the trailer, he also signed a promissory note for the balance due. Mr. Jackson took Albert and Mary Neal to Dr. Toneyman’s office to obtain a certificate of competency two days prior to the execution of the wills and deed; Mr. Jackson made the arrangements for the witnesses to be present for the signing of the wills and deed, and he and his son picked up the witnesses and brought them to Albert and Mary’s trailer. Cleo Jackson was the procurer of the instruments, and he was the sole beneficiary under the terms of the will. As a procurer and beneficiary he was required by the rule enunciated in Short v. Stephenson, supra, to show beyond a reasonable doubt that Albert Neal had both the required capacity and the freedom of will to make the wills and deed valid. This he has failed to do.
The disposition of this property made by Albert Neal in his will was not a natural one. David Neal was Albert’s natural son, and had been treated as a son by both Albert and Mary. They had sufficient love for him in 1971, at a time when Albert was 86 years old, to deed to him the one-half acre upon which their home was located, describing David in the deed as their grandson, and in 1974, when Albert was 89 years old, they built a new brick home on David’s land. Until about December 1, 1975, soon after Mary Neal suffered her first stroke, there was no evidence of disharmony in the family. Cleo Jackson was a neighbor and friend who owned 400 acres of land a short distance from the Neal farm.
The medical evidence presented in this case for the most part concerned the competence of Mary Neal. There was testimony to indicate that she was more active than Albert for the last few years of their lives, but she had more illness requiring hospitalization and the attendance of a doctor. Although Dr. Toneyman testified that she was competent to transact her business affairs, Dr. Oldham found her to be suffering from heart disease, hypothermia, chronic brain syndrome, and senility, within less than thirty days after the execution of the contested instruments, and his opinion was that in all probability she was suffering from those conditions in December, 1975. This Court is aware that the validity of the instruments executed by Mary Neal are not in contention here, and that her competence and vulnerability to undue influence are to be considered only as they may reflect on Albert’s competence and freedom of will. The wills executed by Albert and Mary are self-styled “joint and reciprocal,” and it is evident that Mary often took the lead in their joint actions; Mary alone went with Cleo Jackson to first discuss the making of the wills and deed, and Mary alone went to West Memphis with Cleo Jackson to buy a trailer. The mental and physical condition of both Albert and Mary was such that they were susceptible to undue influence.
We hold that the decision of the trial court was clearly against the preponderance of the evidence and that the petitions of the appellants to set aside the will of Albert Neal and the deed of Albert should have been granted by the trial court.
Evidence was presented in the trial court indicating that appellee has made improvements on the land purported to be conveyed by the deed. He is entitled to a lien on the land to secure the payment of the value of the improvements and taxes he has paid. Ark. Stat. Ann. § 34-1423 (Repl. 1962). The rule for establishing the value of improvements was set out in Wallis v. McGuire, 234 Ark. 491, 352 S.W. 2d 940 (1962), and approved in Williams v. Jones, 239 Ark. 1032, 396 S.W. 2d 286 (1965), as follows:
The measure of the value of betterments is not their actual cost, but the enhanced value they impart to the land, without reference to the fact that they were desired by the true owner, or could not be profitably used by him.
The decree is reversed and the cause remanded to the trial court with directions to permit the taking of proof relative to the value of the improvements made by appellee.
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Lawson Cloninger, Judge.
Appellant, Corrine Marie Sterling, was granted a divorce from appellee, William Frederick Sterling, on April 21, 1971, after twenty-four years of marriage. The parties entered into a written property settlement agreement which provided that the husband, appellee, was to pay the wife, appellant, alimony of $175.00 per week. The divorce decree did not refer specifically to alimony but provided, “The court doth find that the parties have reached an agreement regarding the settlement of their property, which is incorporated into this decree by reference and made a part thereof.”
On July 7, 1980, appellant filed her motion for contempt, alleging that appellee had made no alimony payments for the months of June and July, 1980. On July 18, 1980, appellant amended her motion to allege that appellee had reduced alimony payments from $175.00 per week to $125.00 per week without the approval of the court or appellant, and she asked for a judgment for the arrearage in the sum of $18,931, attorney’s fee and costs. Appellee responded, alleging that the parties entered into an oral agreement five years previously to reduce the alimony to $125.00 per week, and denied that he was in arrears.
At the close of appellant’s testimony appellee’s motion for judgment was granted. The trial court found that the obligation of the appellee was contractual; that there was a novation of the agreement whereby the parties agreed that the sum would be reduced to $125.00 per week; and that appellee was current in his payments.
We hold that the trial court was in error when it granted appellee’s motion for judgment and we reverse.
Novation is the substitution, by mutual agreement of a new debt or obligation for an existing one, and, like any other contract, a novation must be supported by a valid consideration.Barton v.Perryman, 265 Ark. 228, 577 S.W. 2d 596 (1979). The burden of establishing a novation is upon the party claiming it. Simmons National Bank v. Dalton, 232 Ark. 359, 337 S.W. 2d 667 (I960). In order to constitute a novation there must be a clear and definite intention of the parties that such is the purpose of the agreement. Alston v. Bitley, 252 Ark. 79, 477 S.W. 2d 446 (1972). We are unaware of any Arkansas case dealing with child support and alimony in which the term “novation” has been employed, but a number of our cases have held that, under the circumstances of a particular case, the parties may modify an existing agreement for child support and alimony. Most of the cases have involved child support, but it has been pointed out that there is an analogy in cases involving alimony and those involving child support. Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940 (1957). Within limitations attributable to the overriding concern of the courts for the welfare of children, cases involving child support arrearages have been considered as precedential in cases involving alimony arrearages and vice versa. Bethell v. Bethell, 268 Ark. 409, 597 S.W. 2d 576 (1980).
In Bachus v. Bachus, 216 Ark. 802, 227 S.W. 2d 439 (1950), the parties had entered into a written agreement by which they settled all property rights and agreed that the wife would receive $200.00 per month as alimony and support for the couple’s children. The chancellor approved the contract and it was incorporated into the divorce decree. Subsequently, the court entered an order changing the amount Mrs. Bachus would receive as set out by the contract, from $200.00 per month to $150.00 per month. The decision of the trial court was reversed on appeal, the court saying:
The court erred in reducing the amount of the monthly payments. The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the settlement and awards support money upon that basis there is then no power to modify the decree at a later date.
In Seaton v.Seaton, 221 Ark. 778, 255 S.W. 2d 954(1953) the Arkansas Supreme Court said:
Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the huband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Bachus case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon ‘the amount the court, by its decree should fix as alimony.’ ... A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.
In Armstrong v. Armstrong, 248 Ark. 835, 454 S.W. 2d 660 (1970), the wife filed for alimony in arrears and asked that the husband be cited for contempt under a separation agreement which had been incorporated into the divorce decree. The husband answered, asking for a reduction of the alimony payments. The court’s divorce decree provided, “... the agreement... is ... approved and confirmed and is made a part of the decree of this court and is given the same force and effect as if set forth herein ...” The trial court gave the wife judgment for the sums in arrears, found that the agreement was contractual, and found that the payments were not subject to reduction by the court. On appeal, it was held that there was an agreement independent of the decree, and in affirming, the court stated:
Here, too, the court might well have punished appellant for contempt if it'had found that he was in willful violation of its decree, but as stated in Báchus, the court does not have to enforce the provisions of a decree through contempt proceedings. Óf course, one of the purposes of incorporating an agreement that is independently entered into, is to be able to enforce its provisions through contempt proceedings.
In the case now before the court, there was an independent agreement which was enforceable at law or through contempt proceedings. The agreement was a complete contract, aside from the decree of the court. The agreement made no reference to the proposed decree, and in that way it is clearly distinguishable from the agreement in Bethell; the Bethell written agreement specifically provided that it would merge into the divorce decree. Also, the Bethell decree itself ordered the husband to pay $700.00 per month alimony, whereas in the instant case, the decree made no reference at all to alimony. We agree with the trial court’s finding in the instant case that the appellee’s obligation was contractual, but we hold that on the basis of the testimony presented there was no modification of the agreement by the parties. There has been no evidence presented to indicate that the husband gave up anything; there is nothing in the record to indicate any reason for the reduction except his poor financial condition, and, unlike the husband in Bethell, his refraining from going into court and asking for a reduction in alimony payments was not a valid consideration. He had no standing to ask the court for modification of the agreement, because it was not an agreement capable of being modified by the court.
There has been no showing of a clear and definite intention of appellant to accept the reduced payments except on a temporary basis. Appellant contended all through her testimony that she agreed to a temporary reduction only until the financial position of the appellee improved, and she insisted that it was agreed that appellee was to make up the arrearages. The appellant was the only witness, and while we are not obligated to accept her testimony as undisputed, it is the only testimony presently in evidence.
In Sage v. Sage, 219 Ark. 853, 245 S.W. 2d 398 (1952), it was held that accrued installment^, decreed as support money, become fixed with rendition of a judgment and the court was without power to remit them. Sage has been relied upon as authority for holding that the chancery courts have no power to remit past-due payments; however, the court indicated in Bethell v. Bethell, supra, that subsequent cases have said that the courts have no power to remit accumulated payments under the circumstances prevailing in that case. Under the facts presented in the instant case, there is no basis to remit any accumulated payments.
The cause is reversed and remanded to the trial court with instructions to deny appellee’s motion for judgment and to proceed with the taking of evidence. | [
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Tom Glaze, Judge.
This case arose out of a dispute involving the sale of a farming operation and whether a real estate commission was to be paid a real estate broker by appellees as a result of the sale. Appellees, Freeland Nash (Nash) and Otto Clifton (Clifton) formed a corporation, appellee Eden Farms, Inc. (Eden Farms), and purchased a nine hundred acre farm in 1974. The underlying facts in this dispute are somewhat unusual because the real estate broker, Larry Guthrie (Guthrie), who assisted in the sale of the farm, was also the President of the appellant First National Bank of Brinkley (Bank), which had loaned monies to appellees to finance their farming operation. Additionally, appellant Paul Farrell (FarreP), a majority shareholder and director of the Bank, was involved in the negotiations in the sale of the farm, and although he does not claim a real estate commission, Farrell does claim an interest in any commission owed Guthrie on the sale because of monies he claims to have previously loaned Guthrie.
The legal authorities cited by the parties are exhaustive, and the arguments made by both sides are well presented. The case law and legal principles applicable to this cause are well settled. In each case cited by the parties, it is the application of law to the respective fact situations which poses the greatest problem. Thus, a clear understanding of the facts before us must first be reviewed. Three years after Clifton and Nash formed Eden Farms and financed its operation through the Bank, Eden Farms’ operation ran into financial trouble. Through the efforts of Guthrie and Farrell, a purchaser was located who agreed to buy Eden Farms. On March 25, 1977, an offer and acceptance was executed. Five days later, this sale was closed by the parties in Guthrie’s office in the Bank. At this time, a dispute arose as to whether Guthrie was entitled to a real estate commission in the amount of $22,750. Because of this dispute, Guthrie proceeded to close the sale by disbursing all monies and paying Eden Farms’ debts to the Bank, but placed the remaining balance of the sale proceeds, $22,293-30, in his account, as agent, until the commission issue could be resolved.
No further action was taken until June 15, 1977. At this time, Guthrie wrote a check on the disputed account to Farrell for $17,500. He wrote another check to Farrell for $2,500 on July 28, 1977. Guthrie later took the balance, $2,293.30, on October 19, 1977.
In November, 1977, Nash brought action against Guthrie for the $22,293-30. After taking Guthrie’s discovery deposition, Nash then sued the Bank, alleging it had knowledge of the funds in Guthrie’s trust or escrow account and the Bank should have prevented Guthrie from converting these funds. Nash also made Farrell a party to the suit, alleging Farrell and Guthrie wrongfully converted the funds. Eden Farms intervened in the suit and adopted all of the relief sought in Nash’s complaint. On an unrelated matter, the Bank counterclaimed against Nash on two notes concerning a separate indebtedness.
When this case went to trial, Guthrie failed to appear, but all other parties were represented and presented evidence. The trial court held Guthrie liable to Eden Farms for $22,750 and the Bank jointly and severally liable for the $22,293-30, which had been placed in Guthrie’s account. Farrell was held jointly and severally liable for the $20,000 he received. The court awarded the Bank judgment on its counterclaim plus attorney’s fee of 5% of the debt owed by Nash. The Bank and Farrell appeal and Nash cross appeals the trial court’s decisions.
The Bank’s initial point raised for reversal is that it is not liable for Guthrie’s withdrawal of the disputed funds from the trust or escrow account he maintained at the Bank. In its argument, the Bank recognizes the long established rule of agency enunciated by the court in Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972), that:
... a corporation, which can act only through its officers and agents, is affected with notice which comes to an officer, agent or employee in the line of his duty and the scope of his powers and authority and that knowledge ... is ordinarily imputed to the corporation.
The Bank contends this rule of law is not applicable to the facts here because: (1) The Bank neither participated in nor was a beneficiary of any of the commission funds in dispute; and (2) Guthrie had an individual interest in the commission, thus his knowledge and acts should not be imputed to the Bank.
Concerning the Bank’s first point, it relies on the following legal principle announced in Bank of Hartford v. McDonald, 107 Ark. 232, 154 S.W. 512 (1913):
The appellant Bank had no interest whatever in the property and derived no benefit from the venture and was in no way responsible for its success or failure, and it has been held that where a trustee has full control over the funds deposited in a bank, he may draw them out of the bank ab libitum, and the bank incurs no liability in permitting this to be done, so long as it does not participate in the breach of trust, resulting in a misapplication of the funds.
We have no difficulty in accepting the Bank’s argument that it derived no benefit from the transaction in question. While it is true the Bank received none of the disputed funds held in Guthrie’s account, it certainly benefited from the sale of the Eden Farms operation. There is no dispute that Eden Farms was in financial trouble, a matter which concerned the Bank since it had a sizeable outstanding loan made to Eden Farms. It was the Bank’s majority shareholder, Farrell, who actually sought and found a buyer for the Eden Farms operation which in turn permitted Eden Farms, Nash and Clifton to pay off their loan to the Bank. The Bank, through its president, Guthrie, actively negotiated and closed the sale of its farm operation. The Bank, of course, would urge us to consider the commission dispute as a separate matter, i.e., although the Bank may have benefited from the sale of the farm, it received no benefit from what transpired in connection with the commission dispute. We have problems with severing or bifurcating the sale transaction as the Bank would have us do. The Bank officials, Guthrie and Farrell, continued to participate in the actions which took place subsequent to the sale and relative to the commission dispute. The commission question crystalized at the same time the sale was to be closed. If Guthrie had not agreed to hold the $22,293-30, as agent, there is a fair inference from the facts that the sale may not have been consummated. Since the Bank’s president took this action to consummate the sale, the Bank cannot later abdicate its responsibility regarding these trust funds merely because it will not be the recipient of any portion of the funds. The Bank, through Guthrie, undertook to close the sale of Eden Farms and until all monies were disbursed, the sale transaction was never fully closed.
The Bank’s second point is premised on the rule of agency that the knowledge of the agent will not be imputed to the principal where the agent acts for himself or has a personal interest in the transaction, thus rendering it improbable that he will report his knowledge to his principal. Howard v. Wasson, 187 Ark. 756, 62 S.W. 2d 30 (1933). See also, 19 Am. Jur. 2d Corporations 672. In brief, the Bank contends Guthrie’s interest in the disputed commission precludes his knowledge and acts from being imputed to the Bank. However, whether or not Guthrie claimed an interest to the Eden Farms commission was in serious conflict at trial. Nash and Clifton testified, without objection, that they never agreed to a commission and that Guthrie had disclaimed any interest in a commission prior to closing the sale of the farm. Although the Bank now objects on appeal that this testimony of Nash and Guthrie is hearsay and should not be considered, Guthrie is a party-opponent in this cause and the statement attributed to him is clearly admissible as an admission. Rule 801 (d) (2) (i), Uniform. Rules of Evidence. Even if he had not been made a party, the Guthrie statement would have been permitted as a hearsay objection under Rule 804 (b) (3), i.e., a statement which at the time it was made was contrary to Guthrie’s pecuniary or proprietary interest. We hold this testimony of Nash and Clifton alone is sufficient to support the trial court’s finding that Guthrie was not engaged in a personal, separate enterprise nor in an interest adverse to that of the Bank. Also without objection, Clifton testified that Guthrie stated it was Farrell who wanted the commission. Thus, regardless of Guthrie’s abandoned interest in the commission, a dispute still continued over these monies and was reason enough for Guthrie to have held the funds in trust until the matter was fully resolved. Although it appears from the record that the Bank did not object to Clifton’s reference to Guthrie’s remark concerning Farrell’s claim to the commission, we doubt it matters. The statement was certainly admissible to show why Guthrie held the disputed funds even though the remark, on proper objection, may have been excluded for the purpose of showing the truth of the matter asserted. See Rule 803 (3), Uniform Rules of Evidence.
The Bank contends the trial court admitted, over objection, incompetent testimony on other occasions that Guthrie disclaimed any commission. Even if this were true, there is sufficient evidence in the record to otherwise support its finding and decision, and any error in this regard would be harmless. See M. W. Elkins & Company v. Ashley, 195 Ark. 313, 112 S.W. 2d 627 (1938). The Bank urges that the trial court should have given more weight to the testimony offered by the purchaser of Eden Farms, who stated that at the closing Guthrie said that he was entitled to a commission. On review, we must affirm the trial court’s findings unless they are “clearly erroneous (clearly against the preponderance of the evidence), and due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses.” Rule 52, Arkansas Rules of Civil Procedure. In this same vein and consistent with our findings above, we further hold there was sufficient evidence to support the trial court’s conclusion that Guthrie was at all times acting as the chief executive officer of the Bank in an effort to effect the sale of Eden Farms, and the acts and knowledge of Guthrie were imputable to the Bank, making it liable to Eden Farms for the conversion of the $22,293-30 in question.
We have less difficulty in our consideration of Farrell’s assignment of error. The trial court found that Farrell did not receive the $20,000 from Guthrie in the ordinary course of business nor did he part with anything of value in exchange. Farrell testified that he knew Guthrie was holding these funds as agent as the result of the Eden Farms sale transaction. These funds were clearly not Guthrie’s, and Farrell knew it. Farrell was also on the signature card to this account which was noted as “Larry Guthrie, Agent.” Without question, Farrell cannot be said to be an innocent recipient of funds misappropriated from the Guthrie account. Farrell was involved in this matter from its inception, i.e., when he found a willing buyer for the Eden Farms operation. In spite of his knowledge that Guthrie held these disputed funds as agent, Farrell instructed Guthrie to write him checks on the account for $17,500 and $2,500. These funds were not Guthrie’s to give, and we believe the record amply supports the conclusion that Farrell was aware of this fact. We agree with the trial court’s holding that Farrell is liable to Eden Farms in the $20,000 amount he received from Guthrie.
The last issue we must consider involves two promissory notes (riot related to the Eden Farms matter) which reflect the loan of monies by the Bank to Nash. Both notes provide that if Nash defaults in payment and collection is necessary, he agrees to pay the holder ten percent (10%) additional on the principal and interest as attorneys’ fees. The trial court awarded the Bank judgment against Nash on the two notes and granted it an additional five percent ( 5% ) on the past due principal and interest as attorneys’ fees. Although the Bank failed to object to this award of attorneys’ fees below, the Bank argues on appeal that the court should have awarded 10% attorneys’ fees as provided by the notes and authorized under Ark. Stat. Ann. § 68-910 (Repl. 1979). Since this issue was not brought to the trial court’s attention, we would normally not consider the matter on appeal. Nash, however, contended at trial and now on cross appeal that the Bank should not be entitled to any interest because it converted the Eden Farms commission funds, which are monies which could have been applied on Nash’s indebtedness. Since the attorneys’ fees issue is before us on Nash’s cross appeal, we will also consider the respective arguments of both parties.
As mentioned previously, the Bank contends it is entitled to the entire 10% attorneys’ fees provided in the two notes. Neither the Bank nor Nash cite any Arkansas cases on this point. Therefore, we will first review the language of § 68-910, which provides:
Attorney’s fee — Provision enforceable. — A provision in a promissory note for the payment of reasonable attorneys’ fees, not to exceed ten percent [10%] of the amount of principal due, plus accrued interest, for services actually rendered in accordance with its terms is enforceable as a contract of indemnity. [Acts 1951, No. 350, § 1, p. 841.]
The foregoing law was enacted by our legislature in 1951. Until 1951, a stipulation in a promissory note which provided for attorneys’ fees in any amount was held to be against public policy and unenforceable. See Holimon v. Rice, 208 Ark. 279, 185 S.W. 2d 927 (1945). Apparently the only occasion on which the issue before us has been considered was in the case of First National Bank of Magnolia, Arkansas v. Magnolia Steel Corporation, 261 F. Supp. 283 (W. D. Ark. 1966). In Magnolia Steel, there were two notes, one provided for a 10% reasonable attorney’s fee and the second provided for a reasonable attorney’s fee not to exceed 10%. The court allowed 10% attorneys’ fees on each note but not before it considered certain factors to determine if the total amounts of attorneys’ fees called for by the notes were reasonable. In this regard, the court considered: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to conduct the case; (2) the customary charges of the Bar for similar services; (3) the amount involved in the controversy and the benefit resulting to the client from the services. We agree with the federal court’s analysis of § 68-910 and conclude that although it allows the parties to provide for an attorney’s fee not to exceed 10%, it is within the court’s province to determine if the percentage to which the parties agreed is reasonable in view of the foregoing factors.
Finally, we consider Nash’s argument that the interest due on these notes should be abated since the Bank converted the Eden Farms funds. Nash offers no legal authority to support his argument but apparently couches his position in terms of estoppel, a defense he raised in his pleading below. We find no merit in Nash’s contention. The two notes executed by Nash were personal debts and not obligations of Eden Farms. The trial court awarded judgment to Eden Farms, not Nash, when it decided the Bank (along with Guthrie and Farrell) was liable for the conversion of the disputed commission funds. There is entirely no evidence in the record which connects the Eden Farms matter with the notes signed by Nash. Under these facts, we fail to see how equitable estoppel can be applied against the Bank.
Affirmed.
Cracraft, J., not participating.
The court followed Canon 12 of the American Bar Association’s Canon of Professional Ethics to determine whether the attorneys’ fees sought were reasonable. Canon 12 was adopted by the Arkansas Supreme Court by per curiam order dated June 21, 1976, effective July 1, 1976. | [
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Lawson Cloninger, Judge.
The Arkansas Workers’ Compensation Commission found that Delores Swafford, an employee of appellee Tyson Foods, Inc., died as the result of a compensable injury under the Arkansas Workers’ Compensation Act, but that her husband, appellant Gerry Swafford, was not entitled to compensation benefits as her dependent because he was not incapacitated to support himself. The Commissioner awarded benefits to the two minor children of Gerry and Delores Swafford.
Ark. Stat. Ann. § 81-1302 (/) (Repl. 1976) defines “widow” as follows:
‘Widow’ shall include only the decedent’s legal wife, living with or dependent for support upon him at the time of his death.
Ark. Stat. Ann. § 81-1302 (m) (Repl. 1976) defines “widower” as follows:
‘Widower’ shall include only the decedent’s legal husband who, at the time of her death, was living with and dependent upon her for support and was incapacitated to support himself.
Ark. Stat. Ann. § 81-1315 (Repl. 1976) provides in pertinent parts as follows:
(c) ... compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference:
First. To the widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.
To the widower if there is no child, thirty-five per cent (35% ), and such compensation shall be paid during the continuance of his incapacity or until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be entitled to benefits as provided herein.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen percent (15% ) on account of each child.
It is clear that under § 81-1302, supra, a widow need only be either living with or dependent for support upon her husband at the time of his death to be entitled to compensation, while a widower must both be living with and dependent upon his wife for support at the time of her death, and be incapacitated to support himself, to be eligible for the same compensation. It is equally clear that although § 81-1315 (c), supra, provides that compensation shall be paid only to those persons who are wholly and actually dependent upon the decedent, without distinction as to class, a widow is entitled to compensation until her death or remarriage, while a widower shall be paid during the period of his incapacity or until remarriage.
The Administrative Law Judge found that Ark. Stat. Ann. § 81-1302 (m) is unconstitutional as being in violation of the Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, and Article II, Section 18, of the Arkansas Constitution, and awarded compensation to appellant and the two minor children. The Full Commission observed that the distinction made in the Act may be unconstitutional, but that it is for the courts and not for an administrative law judge or a quasi-judicial commission to declare the Act unconstitutional if, in fact, it is.
The issue raised by the appellant on this appeal is whether Ark. Stat. Ann. §§ 81-1302 (m) and 81-1315 (c) constitute impermissible gender-based discriminations against widowers under the Equal Protection clauses of the U.S. Constitution and the Arkansas Constitution. Appellee urges that even though the dependency section may well be unconstitutional, the decision of the Commission should be affirmed because from a factual standpoint appellant was not wholly and actually dependent upon the deceased as were the two minor children.
We find that Ark. Stat. Ann. §§ 81-1302 (m) and 81-1315 (c) are impermissible gender-based discriminations and that appellant was wholly and actually dependent upon decedent at the time of her death.
In a long line of cases the United States Supreme Court has not hesitated to strike down gender classifications that result in benefits or privileges being granted or denied on the basis of the sex of the qualifying person. In Royster Guano Company v. Virginia, 253 U.S. 412 (1920), the Court stated that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation. In Reed v. Reed, 404 U.S. 71 (1971), an Idaho statute which provided that in the appointment of an administrator “males must be preferred to females,” was declared to be a violation of the Equal Protection clause.
In Frontiero v. Richardson, 411 U.S. 677 (1973), a serviceman could claim his wife as a dependent without regard to whether she was in fact dependent upon him, but a servicewoman could not claim her husband as a dependent unless he was in fact dependent upon her for over one-half of his support. The discrimination was invalidated. The case of Califano v. Goldfarb, 430 U.S. 199 (1977) dealt with a Social Security Act provision granting survivor’s benefits to a widow regardless of dependency, but providing the same benefits to a widower only if he had been receiving at least half of his support from his deceased wife. In declaring the provision invalid, the Court stated that “female insureds received less protection for their spouses solely because of sex.”
Not every gender-based discrimination is set aside on constitutional grounds, but to escape invalidation it is necessary that they serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives. Califano v. Wescott, 443 U.S. 76 (1979) and Orr v. Orr, 440 U.S. 268 (1979).
At issue in the case of Wengler v. Druggist Mutual Insurance Company, et al, 446 U.S. 142 (1980) was the constitutionality of the provisions of the Missouri Workers’ Compensation Laws which denied a widower benefits based on his wife’s work-related death unless he was incapacitated or proved dependency, but granted a widow benefits without her having to prove either dependency or incapacitation. The only justification offered by the appellees for not treating males and females alike was the assertion that most women are dependent on male wage earners and that it is more efficient to presume dependency in the case of women. The Court found that the Missouri law discriminated against men because it deprived them of survivor’s benefits to which they would be entitled except for their sex, and it discriminated against women because it provided them with less protection for their spouses solely because of sex. The Court then observed:
Surely the needs of surviving widows and widowers would be completely served either by paying benefits to all members of both classes or by paying benefits only to those members of either class who can demonstrate their need. Why, then, employ the discriminatory means of paying all surviving widows without requiring proof of dependency, but paying only those widowers who make the required demonstration?
The Arkansas Supreme Court has declared invalid a number of gender-based laws. In Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979), a statute providing for maintenance and attorney’s fees for wives only was invalidated; in Lucas v. Handcock, 266 Ark. 142, 583 S.W. 2d 491 (1979), the Court ruled unconstitutional a statute which allowed illegitimate children to inherit from their mother and not their father, and in Noble v. Noble, 270 Ark. 602, 605 S.W. 2d 453 (1980) gender-based alimony and property division statutes were declared unconstitutional. Two recent Arkansas cases, Hess and Morton v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981) and Stokes v.Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981), struck down gender-based statutes pertaining to the right of a widow, but not a widower, to take against the will and to receive dower interests and statutory allowances, and Article IX, Section 6 of the Constitution of the State of Arkansas relating to homestead.
In the case now before this Court it is obvious that the sections of the Workers’ Compensation Act sought to be invalidated are gender-based discriminations. As the United States Supreme Court observed in Wengler the burden is on those defending a discrimination to make out a claim to justification. However, in this case no one attempts to justify the discrimination; in fact, appellee agreed that there was probably an unconstitutional discrimination, and the Attorney General of the State of Arkansas, in its amicus curiae brief, concedes that the distinction between “widow” and “widower” may constitute an impermissible gender-based discrimination. In the face of what we find to be a gender-based discrimination, and in the absence of any showing that the discrimination serves an important governmental objective, we hold that the discriminatory sections of the Arkansas Workers’ Compensation Act are violative of the Equal Protection clauses of the federal and state constitutions.
The secondary question presented is whether the constitutional defect should be cured by extending the rights of widowers or eliminating the rights of widows. In National Life Insurance Company v. U.S., 277 U.S. 508 (1928), the United States Supreme Court observed that if extension is legislation it is nonetheless so because the operation can be performed by striking out certain words. That observation, of course, is correct, but appellant has cited no authority, and we are aware of none, which allow this Court to add to a statute so as to make it constitutionally correct. There is, however, authority for this Court to strike the offensive portions while leaving the remainder intact.
In Brooks v. Wilson, 165 Ark. 477, 265 S.W. 53 (1924), the Court stated:
... if any special provision of an act be unconstitutional and can be stricken out without affecting the validity of the residue of the act, it will be done, and the remainder of the act allowed to stand. Cribbs v. Benedict, 64 Ark. 555, 44 S.W. 707 (1897).
The Supreme Court of Arkansas stated in the case of Borchert v. Scott, 248 Ark. 1041, 460 S.W. 2d 28 (1970), as follows:
... The rule is stated in Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183 (1914), quoting from Cooley’s Constitutional Limitations (6 ed.), in this language:
... Where therefore a part of the statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the Legislature would have passed the one without the other. ... If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with apparent legislative intent, wholly independent of that which was rejected, it must be sustained. ...
We have concluded that the Workers’ Compensation Act and its sections are severable and that the offending portions of §§ 81-1302 (m) and 81-1315 (c) can be excised, leaving the remainder of the sections intact. We further conclude that it was the legislative intent to provide compensation for the death of an employee and that to make compensation available equally for a widow and a widower is more consistent with the legislative purpose than to exclude widows. The offending words in § 81-1302 (m) “... and was incapacitated to support himself ...” are therefore excised, which results in Ark. Stat. Ann. § 81-1302 (m) (Repl. 1976) providing as follows:
‘Widower’ shall include only the decedent’s legal husband who, at the time of her death, was living with [or] dependent upon her for support.
The offending words of § 81-1315 (c) (Repl. 1976), “... during the continuance of his incapacity or ...” are therefore excised, which results in Ark. Stat. Ann. § 81-1315 (c) (Repl. 1976) providing as follows:
First. To the widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.
To the widower if there is no child, thirty-five per cent (35% ), and such compensation shall be paid until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be entitled to benefits as provided herein.
We are aware of the fact that Act 290 of the Acts of Arkansas for 1981, abolishing the distinction between widow and widower in the Workers’ Compensation Act, became effective on March 3, 1981. However, that Act is not effective retroactively and does not govern the rights between these parties.
The Administrative Law Judge found that appellant and the two children were wholly and actually dependent upon Delores’ earnings and awarded benefits to appellant equal to thirty-five per cent of Delores’ average weekly wage, and fifteen per cent to each child. The Commission found that Gerry and Delores Swafford and their two minor children were all living together at the time of Delores’ death and that the entire family was-dependent upon her earnings. Appellant was disqualified for benefits solely because he was not incapacitated to support himself.
In defining the term “wholly dependent” the Court, in Chicago Mill and Lumber Company v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958), stated:
It would be possible to construe this provision of the Act as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the Legislature used the term ‘wholly dependent’ in the sense of applying to those ordinarily recognized in the law as dependents, and this would certainly include wife and children.
In Roach Manufacturing Company v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979), the deceased had been married and the couple had one daughter. Eleven months before his death, the deceased left his wife and child and moved to Tennessee where he resided and worked without obtaining a divorce and without providing support to his wife and daughter. The wife supported herself and her child as best she could. Stating the rule that “remedial legislation shall be liberally construed,” the Court awarded the daughter compensation on the grounds that she had a “reasonable expectation of future support.” The Court did not award compensation to the wife since there was no factual proof of actual dependence. The Act had been amended by the Legislature in 1976 to require the surviving spouse to be “wholly and actually dependent” upon the deceased. The Court in Roach further stated:
We assume — under our settled law we must assume — that the Legislature, in deciding to amend the statute, knew the meaning that we had attributed to ‘wholly dependent.’ ... It unavoidably follows that the addition of the word ‘actually’ was intended to change what amounted to a conclusive presumption of dependency under our prior cases. It follows at least that, when, as here, the widow and child were not living with the employee at the time of his death, there must be some showing of actual dependency.
We have said, where there is no presumption of dependency, that dependency is a fact question to be determined in the light of surrounding circumstances. Smith v. Farm Service Cooperative, 244 Ark. 119, 424 S.W. 2d 147 (1968). ...
In the recent case of Hunter Memorial Methodist Church v. Millirons, 268 Ark. 975, 597 S.W. 2d 845 (Ark. App. 1980), Mrs. Millirons died as a result of a work-related occurrence and her claim was compensable. At the time of death Mrs. Millirons’ average wage was $ 105.77 per week, and the claimant, her husband, earned approximately the same wages. The question on appeal was not only whether Mr. Millirons was entitled to compensation, but whether his five children were entitled to benefits as well. The Commission held that the five children of the deceased were entitled to recover benefits because they were actually dependent upon their mother at the time of her death, however, the claimant was disqualified because he was not incapacitated to support himself at the time of his wife’s death.
The record in this case reflects that both appellant and Delores were employed, and that all their earnings were used for the support of the family. Delores earned in excess of $5500 per year, and her contribution was approximately one-half of the family’s total income. Appellant’s income alone was not sufficient to support the family, and it was necessary for Delores to work.
The finding of the Commission on the issue of dependency must stand if supported by any substantial evidence, resolving all inferences in favor of the claimant. Revere Copper and Brass, Inc. v. Birdsong, 267 Ark. 922, 593 S.W. 2d 54 (Ark. App. 1979). The question is whether the proof supports the finding that was made, not whether it would have supported the contrary conclusion. Roach Manufacturing Company v. Cole, supra.
We find there was substantial evidence to support the findings of dependency made by the Commission.
The cause is remanded to the Commission with directions to enter an award for appellant for thirty-five per cent of the average weekly wage of Delores Swafford. | [
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George K. Cracraft, Judge.
The appellant, William J. Paladino, brings this appeal from a jury verdict finding him guilty of the crimes of burglary and theft of property. He maintains that the trial court erred in submitting the case to the jury on insufficiently corroborated testimony of an accomplice. We do not agree.
At the trial the witness, Larry Mason, testified that he and the appellant went to the house of one Urban Graves on the night of October 9, 1979. Mason entered the dwelling by prying open a window and unlocked a door through which the appellant entered. While in the house they appropriated three guns, a chain saw, other tools and some “change” in a jar. After leaving the burglarized dwelling they went to a Dairy Queen near Deerwood. The witness remained in the Dairy Queen while the appellant took the guns and the chain saw across the street where he sold them to one Tiny Holloway. The witness then returned to the Dairy Queen and gave the appellant “$50 to $75” of the proceeds of the sale. The change was divided between them and spent. The witness kept those tools which had not been sold.
Unquestionably Mason was an accomplice. Rhea v. State, 226 Ark. 68, 288 S.W. 2d 34. As such, his testimony was subject to the provisions of Ark. Stat. Ann. § 43-2116 (Repl. 1977) which is as follows:
Testimony of accomplice — A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. ...
When construing that statute in both King v. State, 254 Ark. 509, 494 S.W. 2d 476 (1973), and Dunn & Whisenhunt v. State, 256 Ark. 508, 508 S.W. 2d 555 (1974), the court declared:
By its own language, the statute only requires that there be corroboration by evidence tending to connect the defendant with the commission of the offense and that this evidence go beyond a showing that the crime was committed and the circumstances thereof. We have, therefore, consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.
We find from the record that there was ample other testimony which independently tended to link the appellant with the theft and burglary for which he was charged.
Urban Graves, the victim, testified that when he returned to his home he found evidence of entry through a window; that one of the back doors was standing open, and his guns, tools and change were missing. The sheriff officer who went to the scene of the crime testified that there was evidence that a window screen had been pried open and the window raised. He saw tracks outside the dwelling which indicated entry through the window. Tiny Holloway testified that he knew the appellant and had purchased three guns and a chain saw from him. While Holloway could not testify as to the exact date of the purchase, the jury could properly infer from his testimony that it took place near the date on which the burglary occurred. These items were subsequently sold by Holloway to others from whom they were recovered. The victim identified the recovered property as those stolen from his home, and Holloway positively identified the articles as the ones purchased by him from the appellant and sold by him to those from whom they were ultimately recovered.
While there was no direct evidence which placed the appellant inside the burglarized building, the evidence is clear that the dwelling was unlawfully entered and the articles unlawfully taken from it. This, coupled with the evidence that the appellant had the stolen articles in his possession, was sufficient to make a jury question independent of his accomplice’s testimony. Possession of recently stolen property is sufficient to support a jury verdict of burglary and theft, even though there is no other evidence to show the unlawful entry with felonious intent. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975); Taylor v.State, 254 Ark. 620, 495 S.W. 2d 532 (1973).
We find no error in the action of the trial court, and therefore, affirm its judgment.
Affirmed. | [
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Melvin Mayfield, Chief Judge.
Appellant was found guilty of the charges of possession of marijuana with intent to deliver and delivery of marijuana. He was sentenced to ten years and a $10,000 fine on each charge with the sentences to be served consecutively.
In opening statement his attorney told the jury that appellant was a businessman whose business had fallen on hard times. During this period a “little old fuzzy faced scraggly looking boy” approached appellant with an easy way to make money. After repeated requests, the jury was told, appellant delivered some marijuana and was arrested by the boy who turned out to be an undercover state police officer.
After the State had rested, the appellant moved for a directed verdict on the ground that the evidence established he was entrapped. The motion was denied.
On direct examination the appellant told the jury that prior to November 16, 1979, he had never done anything illegal. At that time Deborah Dickinson introduced him to the boy who turned out to be an undercover police officer. She asked appellant to sell the boy some marijuana. “I had never been previously involved in a drug transaction,” he said. But times were hard. He needed money. Deborah needed money. So he obtained seventy pounds of marijuana and sold it to the undercover agent. “This was my first and last in the drug business,” he said.
On cross-examination the appellant was asked:
Mr. Spicer, isn’t it true that you’re guilty of possessing marijuana with intent to deliver on October 7 of 1979, in Hope?
After an objection there was a discussion outside the hearing of the jury during which the court overruled the objection. When the question was asked again a motion for mistrial was made by appellant’s counsel and it was denied by the court. The question was then answered as follows:
I am not guilty at no time of — now, I’m not saying that they didn’t charge me over there. But, I have never been guilty at no time, except what you know about.
The appellant’s only point for reversal is that it was error for the court to allow the prosecuting attorney to ask the question set out above. Under the circumstances involved we do not think the court was in error.
As the Arkansas Supreme Court pointed out in the case of Gustafson v. State, 267 Ark. 278, 590 S.W.2d 853 (1979), Rule 608 (b) of the Uniform Rules of Evidence has made a very definite — even drastic — change in how a witness may be cross-examined. This is especially true in criminal cases because, in the past, it was proper to ask a defendant on cross-examination if he had been guilty of almost any crime. Rule 608 (b) has changed that. Under Rule 609, the credibility of a witness may be attacked by evidence that he has been convicted of certain crimes. But Rule 608 (b) says that specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility (other than conviction of a crime as provided in Rule 609) may not be proved by extrinsic evidence but may be inquired into on cross-examination.
However, Gustafson said that before specific instances of conduct may be asked about under Rule 608 (b), three conditions have to be met: (1) the questions have to be asked in good faith, (2) the probative value of the conduct must outweigh any prejudicial effect, and (3) the conduct must relate to truthfulness or untruthfulness. These conditions were again stated by the Supreme Court in Divanovich v. State, 271 Ark. 104, 607 S.W. 2d 383 (1980), and by the Court of Appeals in Harper v. State, 1 Ark. App. 191, 614 S.W. 2d 237 (1981).
Two other important aspects of this matter are discussed in those cases. First, not every instance of misconduct relates to truthfulness or untruthfulness. As we said in Harper-.
Gustafson indicated that misconduct relating to truthfulness would include forgery, perjury, bribery, false pretense, theft, and embezzlement, but said, “Obviously, some misconduct would not bear on truthfulness. For example, murder, manslaughter or assault do not per se relate to dishonesty.” And in Divanovich the court said, “Questions regarding appellant’s violent nature and destruction of property are wholly unrelated to his propensity for honesty and, therefore, improper.”
Also, it should be remembered that the acts of misconduct which may be asked about on cross-examination cannot be proved by extrinsic evidence. So, when the question is answered the matter is ended. If the answer is negative, no evidence of misconduct has been produced but a prejudicial question may have been asked. As Gustafson said, “a prosecutor, who seeks to have a defendant make an admission concerning a felony when there has been no conviction, hazards a reversal, absent a showing of probative value, because of the prejudicial nature of the question.”
We do not agree with the State’s contention that the question asked appellant on cross-examination was proper under Uniform Evidence Rule 404 (b). The State says it was proper because it had to do with appellant’s prior knowledge and involvement with marijuana and was, therefore, relevant to the issue of entrapment. But the conduct was denied and there is no evidence in the record that it occurred. In Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978), relied upon by the State, there was evidence by a witness that he had purchased controlled substances from the appellant in that case. Since the appellant here did not admit guilt of the crime asked about and since there was no other evidence to show it, there is no evidence to which Rule 404 (b) can apply.
However, we do agree with the State’s contention that the question asked by the prosecuting attorney was permissible cross-examination.
In Montague v. State, 219 Ark. 385, 242 S.W. 2d 697 (1951), the defendant was charged with manslaughter as a result of an automobile collision. On direct examination he testified that he had not been arrested since he had been in West Memphis. On cross-examination he was asked if he had not been arrested for a trafile violation in Forrest City about a month before the wreck for which he was on trial and the court on appeal said:
Counsel for the State had a right to question appellant on cross-examination as to prior arrests, in the circumstances, in an effort to show that he had not truthfully answered the above questions propounded by his own counsel on direct examination.
While that case was decided prior to the Uniform Rules of Evidence, the same result is reached in federal courts which have the same rule as our 608 (b).
In United States v. McClintic, 570 F. 2d 685 (8th Cir. 1978), the court said:
The defendant, testifying in his own behalf, asserted that the first time in his life when he had done anything illegal was when he participated in organizing the Paper Place scheme in Rockford, Illinois. On cross-examination, however, the prosecutor inquired into the defendant’s attempt in 1973 to sell a two-hundred dollar ring for $8,000. ... The trial court ruled, over objection, that this inquiry was proper cross-examination. Defendant argues that it unfairly prejudiced him by presenting prior criminal acts which bore no relation to the issues at trial. We disagree.
Moreover, the ring-swindle cross-examination was proper as impeachment by contradiction. C. McCormick, McCormick on Evidence, § 47 at 97 (2 ed. 1972). By painting a picture of himself as an innocent who succumbed to sympathy for Morrissey in the Rockford, Illinois scheme, the defendant invited cross-examination concerning this previous misconduct.
In United States v. Contreras, 602 F. 2d 1237 (5th Cir. 1979), cert. denied, 444 U.S. 971, the court said:
Alvaredo testified on direct examination that he observed the DEA agent lift a “coke” spoon to his nose, and that he knew it was a “coke” spoon “because I have seen a bunch of them in Playboys and this and that.”
On cross examination, the prosecutor inquired into Alvaredo’s knowledge of cocaine and related paraphernalia, at one point, asking whether Alvaredo had discussed with a DEA agent “going to Ft. Stockton to purchase large quantities of cocaine.” Alvaredo denied the discussion, and the court properly overruled the defense’s objection to the inquiry.
Contrary to appellant’s assertions, Rule 608 of the Federal Rules of Evidence is not applicable to this situation. This is not a case where specific instances of misconduct, totally unrelated to the witness’ substantive testimony, were used in an attempt to impeach. Alvaredo’s direct testimony revealed the alleged basis for his knowledge that the spoon he observed was a “coke” spoon. The government was entitled to test the credibility and factual foundation of that statement.
In Carter v. Hewitt, 617 F. 2d 961 (3rd Cir. 1980) the court in discussing Federal Rule of Evidence 608 (b) said:
The principal concern of the rule is to prohibit impeachment of a witness through extrinsic evidence of his bad acts when this evidence is to be introduced by calling other witnesses to testify. Thus, Weinstein and Berger described the extrinsic evidence ban as follows:
Courts often summarize the no extrinsic evidence rule by stating that “the examiner must take his [the witness’s] answer.” This phrase is descriptive of federal practice in the sense that the cross-examiner cannot call other witnesses to prove the misconduct after the witness’ denial; it is misleading insofar as it suggests that the cross-examiner cannot continue pressing for an admission — a procedure specifically authorized by the second sentence of Rule 608 (b).
3 J. Weinstein & M. Berger, Weinstein’s Evidence par. 608[05], at 608-22 (1978) (footnote omitted).
Similarly, McCormick writes:
In jurisdictions which permit character-impeachment by proof of misconduct for which no conviction has been had, an important curb is the accepted rule that proof is limited to what can be brought out on cross-examination. Thus, if the witness stands his ground and denies the alleged misconduct, the examiner must “take his answer,” not that he may not further cross-examine to extract an admission, but in the sense that he may not call other witnesses to prove the discrediting acts.
E. Cleary, McCormick on Evidence § 42, at 84 (2d ed. 1972) (footnotes omitted).
Thus, the great majority of the decisions finding violations of Rule 608 (b) do so when the extrinsic evidence that is challenged is obtained from a witness other than the one whose credibility is under attack. When, however, the extrinsic evidence is obtained from and through examination of the very witness whose credibility is under attack, as is the case here, we must recognize that the rule’s core concerns are not implicated.
A limitation on the right to cross-examine about a matter brought out by direct is found in evidence Rule 403 which allows the court to exclude evidence if its probative value is, among other factors, substantially outweighed by the danger of unfair prejudice or the misleading of the jury. See United States v. Tom, 640 F. 2d 1037 (9th Cir. 1981). And, of course, the court may always require a good faith showing on the part of counsel as suggested in Gustafson and Harper.
We think the state was entitled to challenge by cross-examination the appellant’s testimony that he had never been involved before in a drug transaction. Appellant does not argue that the question was asked in bad faith and we see nothing in the record to so indicate.
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Melvin Mayfield, Chief Judge.
The appellant was paid $186.00 in unemployment benefits by the Arkansas Employment Security Division to which he was not entitled. The agency issued an overpayment determination requiring the repayment of the benefits and the appellant appealed. The Appeal Tribunal upheld the agency, the Board of Review agreed, and appellant has now appealed to this court.
Ark. Stat. Ann. § 81-1107(f)(2) (Repl. 1976) provides as follows:
If the Director finds that any person has received any amount as benefits under this act to which he was not entitled by reasons other than fraud, wilful misrepresentation, or wilful nondisclosure of facts, such person shall be liable to repay such amount to the fund or in lieu of requiring the repayment, the Director may recover such amount by deduction from any future benefits payable to such person under this act unless the Director finds that the overpayment was received without fault on the part of the recipient and its recovery would be against equity and good conscience. Provided further, that any person held liable to repay such an amount to the fund or to have such amount deducted from any future benefits payable to him shall not be liable to repay such amount nor shall recovery be made from any future benefits after one [ 1 ] year from the date the determination of the amount of the overpayment becomes final within the meaning of the provisions of subsection (d)(5) of this section.
The appellant does not contest the determination of overpayment but contends that he should not be required to repay the amount received because of that portion of the above provision which allows repayment to be excused if the director finds that the overpayment was received “without fault on the part of the recipient and its recovery would be against equity and good conscience.”
The appeals referee held, and the board agreed, that the claimant was paid benefits to which he was not entitled because of a disqualification to receive benefits for a certain period. The reason for the disqualification is not specifically stated in either the referee’s or the board’s decision. However, in answer to a question by the appellant, the referee referred to a section of the statutes, and said, “It says that if you are disqualified for misconduct in connection with the work” and went ahead to explain the statute.
The reason for the disqualification, however, does not appear to be an issue in this appeal since appellee’s brief admits that the appellant was without fault in the overpayment. As stated in appellee’s brief “The sole issue on appeal is whether recovery of the $186.00 by the Employment Security Division would be against equity and good conscience.”
In that regard there is very little evidence in the record. The evidence does show that the appellant was drawing food stamps, that he and his wife were both unemployed, he couldn’t pay his rent, his car was broken down and he couldn’t get it fixed.
Even though appellant’s testimony cannot be taken as undisputed, it cannot be arbitrarily disregarded and there appears no reason why it should not be regarded as true. If we accept as a fact that appellant was without fault in the overpayment and that his employment and financial situation is as he testified, there is no evidence to support a finding that repayment would not be against equity and good conscience.
The decision appealed from is reversed. The appellant does not have to repay the $186.00 and it cannot be deducted from future benefits.
Cloninger, J., dissents.
Corbin and Glaze, JJ., concur. | [
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George K. Cracraft, Special Judge.
The appellant was convicted in a bench trial of being a minor in possession of a handgun on school property in violation of Ark. Code Ann. § 5-73-119 (Repl. 1993). He was sentenced to three years in the Arkansas Department of Correction with credit for one day jail time. On appeal, he argues that the evidence is insufficient to support his conviction. We agree and reverse.
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). Circumstantial evidence may constitute substantial evidence; however, in order to be sufficient to sustain a conviction, the circumstantial evidence must exclude every other reasonable hypothesis consistent with innocence. Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). This becomes a question for the fact finder to determine. Id.
At trial, Betty Rodden testified that she was a teacher and a coach at Sylvan Hills Junior High on December 4, 1992. On that day, she was in her seventh period study hall when Ms. Clark, the school principal, asked for the appellant. The appellant then left the classroom with Ms. Clark. Ms. Rodden testified that she subsequently saw the appellant return to the study hall. She further testified that as she was talking to another student, she observed the appellant at the front of the room standing beside a student by the name of B.J. Blake. They were standing next to each other and there was a black book bag on a table beside them. They separated and the appellant started toward the door as she was about to speak to them. She testified that as the appellant was leaving the room, another student said something to him and he responded something about a nine millimeter and “nothing on me.” Ms. Rodden informed Ms. Clark of the conversation she overheard. She also told Ms. Clark that she witnessed the appellant and B J. Blake making a “big deal” about the book bag as though they were putting something in it or taking something out of it.
Ms. Clark, the principal for Sylvan Hills Junior High, testified that she had gone to study hall to escort the appellant to the school bus as a preventative measure because there had been some problems at school that day. They left the study hall together. The appellant subsequently told her that he had forgotten his books and asked if he could go get them. However, he did not return from study hall with any books or a book bag. Ms. Clark further testified that after speaking with Ms. Rodden, she retrieved the book bag from the study hall and opened it in her office with the appellant present. At that time, she observed a handgun in the book bag and contacted a police officer.
The appellant contends that the State failed to prove that he was in possession of the weapon. A showing of constructive possession, which is the control or right to control the contraband, is sufficient to prove a defendant is in possession of a firearm. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). Constructive possession can be implied where the contraband was found in a place immediately and exclusively accessible to the accused and subject to his control. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991); Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993). Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). In Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), our Supreme Court stated:
No one should be deprived of his liberty or property on mere suspicion or conjecture. Where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be insufficient. This is regardless of how suspicious the circumstances are.
264 Ark. at 347, 571 S.W.2d at 435.
Here, the appellant did not have exclusive access to the book bag nor did he exercise any control over it. Neither Ms. Clark nor Ms. Rodden saw the appellant in possession of the book bag. The bag was not found on his person or with his personal effects. The appellant was out of his usual place in the classroom when he was standing next to B J. Blake and the table on which the bag was placed. In fact, the appellant left the study hall twice while the black book bag remained in the classroom full of other students. In Hodge v. State, supra, our Supreme Court stated that where narcotics are found in an area entirely outside the control of the defendant and exposed to the public at large, the State must provide definite factors linking the defendant to the contraband. In the case at bar, the evidence fails to link the appellant to constructive possession of the handgun. Therefore, we find the evidence insufficient to support the appellant’s conviction.
The appellant also argues that the evidence is insufficient because the State failed to show that the weapon met the definition of a handgun as defined in Ark. Code Ann. § 5-73-119(b) (Repl. 1993). However, given the disposition of the first issue, we do not address this argument.
Reversed and dismissed.
Jennings, C.J., and Rogers, J., agree. | [
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John E. Jennings, Chief Judge.
This is a civil forfeiture action brought by the State under Arkansas Code Annotated section 5-64-505 (Repl. 1993) seeking the forfeiture to the State of a 1992 Chevrolet Silverado pickup truck, a 16-foot bass boat, and an outboard motor. After a hearing the circuit court found that the truck was being used to transport a controlled substance in violation of the law and that it should be forfeited to the State. The court also found the boat and motor should not be forfeited.
On appeal Burnett contends that the evidence was insufficient to support the court’s decision to order the truck forfeited. We agree and therefore reverse and dismiss.
Arkansas Code Annotated section 5-64-505(a)(4) (Repl. 1993) provides that all conveyances, including vehicles, which are used to transport controlled substances for the purpose of sale or receipt are subject to forfeiture.
At the forfeiture hearing Jack Allen, a detective at the Cle-burne County Sheriff’s Department, was the only witness. He testified that he received a call from the owner of a pawn shop in Greers Ferry who was concerned because Burnett had come in and pawned a shotgun there but had told the owner he owned a pawn shop himself. The sheriff’s office ran a check on Burnett and found several misdemeanor warrants on him for traffic violations. The officers went to Greers Ferry and found Mr. Burnett inside the Quik-Mart store. They arrested the defendant, who gave the officers permission to search the truck. They saw a .45 caliber pistol in plain view on the seat of the truck and a marijuana “roach” in the ashtray. In Burnett’s wallet, which was also in the cab of the truck, they found .9 grams of methamphetamine. Burnett was subsequently charged and convicted in federal court for possessing the methamphetamine.
On this evidence the trial court made a finding that the truck “was being used to transport a controlled substance in violation of the law and that the same should be forfeited to the State.” The statute, however, requires that the State prove that the vehicle was used to transport the controlled substance “for the purpose of sale or receipt.”
A forfeiture action is an in rem civil proceeding, independent of any criminal charges that may be pending. Gallia v. State, 287 Ark. 176, 697 S.W.2d 108 (1985). The burden of proof in the trial court is by a preponderance of the evidence. Limon v. State, 285 Ark. 166, 685 S.W.2d 515 (1985). Because the forfeiture statute is penal in nature and because forfeitures are not favorites of the law, the statute is interpreted narrowly. Beebe v. State, 298 Ark. 119, 765 S.W.2d 943 (1989). On appeal, we reverse the findings of the trial court only if they are clearly against a preponderance of the evidence. Davison v. State, 38 Ark. App. 137, 831 S.W.2d 160 (1992).
In the case at bar we can find no evidence whatsoever that appellant’s truck was being used to transport the methamphetamine “for the purpose of sale or receipt.” We recognize that Arkansas Code Annotated section 5-64-401 (Repl. 1993) permits an inference of intent to deliver when a defendant is in possession of more than 200 milligrams of a “stimulant drug.” However, the State concedes, and we agree, that the statute has no application to a civil forfeiture proceeding.
Because our resolution of appellant’s first issue disposes of the case, we need not reach the other issues raised.
Reversed and Dismissed.
Rogers, J., and Bullion, S.J., agree. | [
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Per Curiam.
Appellee Twin City Bank moves to dismiss the appeal filed by Gertie Guthrie on the basis that her notice of appeal was untimely.
Appellant’s action against appellee was dismissed by summary judgment filed in the trial court on April 13, 1994. On April 25, 1994, appellant filed a motion for reconsideration requesting the trial court to set aside the summary judgment and proceed to trial. We characterize this motion as a motion for a new trial. Although a motion for a new trial must be filed not later than ten days after entry of judgment, appellant’s motion was timely because the intermediate Saturday and Sunday are excluded from computation pursuant to Ark. R. Civ. P. 6(a). Appellant amended her motion on May 9, 1994.
The trial court heard arguments on appellant’s motion twice, apparently on June 24, 1994, and again on November 18, 1994. By order filed December 5, 1994, the court denied appellant’s motion. Appellant filed notice on December 21, 1994, that she was appealing the December 5, 1994, order.
Appellant’s motion for new trial was deemed denied not later than June 8, 1994, thirty days after her amendment to the motion was filed. Ark. R. App. P. 4(c). Consequently, appellant was required to file her notice of appeal from the summary judgment within thirty days after June 8, 1994, the date her motion was deemed denied. Her notice of appeal was not filed until December 21, 1994, and was untimely.
Appellant’s notice of appeal specifically recited that she was appealing the order dated December 5, 1994, which denied her motion for new trial. Even if the time for appealing an order denying a motion for new trial, as distinguished from the judgment which is sought to be set aside, does not begin to run from the date it is “deemed denied” under Ark. R. App. P. 4(c), the trial court lost jurisdiction, or the power, to act on the motion thirty days after it was filed, Ark. State Hwy. Comm. v. Ayres, 311 Ark. 212, 842 S.W.2d 853 (1992); Wal-Mart Stores, Inc. v. Isely, 308 Ark. 342, 823 S.W.2d 902 (1992), long before the court entered its order denying appellant’s motion.
If we characterized appellant’s motion for reconsideration as something other than a motion for a new trial, or one of the other post-judgment motions listed in Ark. R. App. P. 4(b), then the “deemed denied” provision of Ark. R. App. P. 4(c) would not apply. However, if appellant’s motion for reconsideration does not fall within the categories listed in Ark. R. App. P. 4(b), it must necessarily be viewed as an Ark. R. Civ. P. 60(b) motion seeking to correct an error or mistake or to prevent a miscar riage of justice. If so characterized, appellant’s position is not improved because the trial court would have lost jurisdiction to set aside or modify the April 13,1994, summary judgment ninety days after its entry in filing. Griggs v. Cook, 315 Ark. 74, 864 S.W.2d 832 (1993); Parks Leasing, Inc. v. Bray Corp., 43 Ark. App. 74, 861 S.W.2d 116 (1993); Story v. Spencer, 41 Ark. App. 27, 847 S.W.2d 48 (1993). Consequently, even with this characterization, we could not consider the merits of the trial court’s order denying appellant’s motion for reconsideration because it was entered by the trial court without jurisdiction.
This appeal is dismissed.
Mayfield, J., dissents.
We need not now decide whether an amendment to a motion for a new trial extends the time for filing a notice of appeal, because appellant’s notice was untimely even if the amendment did extend the time.
There is no allegation that the motion asserted any of the grounds listed in Ark. R. Civ. P. 60(c) for setting aside the subject judgment. | [
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John E. Jennings, Chief Judge.
This is an appeal from an order involuntarily committing the appellant to the Arkansas State Hospital for a forty-five day period. The sole argument raised on appeal is that there was insufficient evidence to support the probate court’s finding that appellant posed a clear and present danger to herself or others. We agree and reverse and dismiss.
On October 6, 1994, Mrs. Lyda Campbell filed a petition seeking the involuntary commitment of her daughter Leah Campbell for treatment of mental illness. Leah Campbell is a thirty-six-year-old board-certified psychiatrist. The petition alleged that Dr. Campbell had “at least a four-year history of mental illness” and that on the 5th of October the manager of Forest Place, the apartment complex where Dr. Campbell lived, told the petitioner that Dr. Campbell had physically attacked a Terminix man who was spraying her apartment and “nearly pushed him off the second floor balcony.” The manager said that Dr. Campbell would have to move because it was her second assault, in that she had tried to attack a maintenance man two weeks earlier. The manager also complained that Dr. Campbell was walking about wearing only a bathrobe. The petition also alleged that Dr. Campbell had screamed that the petitioner was going to hell and slammed a door and refused a request from her father on the same date to get help. It said that Dr. Campbell had walked off two jobs since returning to Little Rock in August 1993 and was not getting care for her illness. The petition also alleged that she was dependent on her mother and father for support. The petition listed Margaret Raney, the manager of Forest Place, as an additional witness.
On October 7, 1994, the Pulaski County Probate Court held a hearing to decide whether Dr. Campbell should be committed for a seven-day period for evaluation. Lyda Campbell testified that she and her husband saw their daughter on October 4 and asked her to get some treatment “because she was unemployed and had run out of money.” She testified that on October 5, Dr. Campbell was very rude to her parents and acted with hostility toward them. She testified that the statement about a four-year history of mental illness was based on what “mutual friends in New York” had told her.
Margaret Raney, the assistant manager at the apartment complex where Dr. Campbell lived, also testified. She said that on approximately September 14, 1994, Dr. Campbell came into her office upset because she had been to her bank to withdraw money to take a cruise and had been told her account only had $20.00 in it. Dr. Campbell told Ms. Raney that she felt like the bank manager was happy about not giving her the money. Ms. Raney testified that Dr. Campbell then lit a cigarette despite a sign on Ms. Raney’s desk that says, “Please, do not smoke.” When a gentleman who happened to be in the office, whom Ms. Raney described as a native American, called Dr. Campbell’s attention to the sign, she told him to “shut the blank up” and called him a “spic.” In the course of the conversation Dr. Campbell told Ms. Raney that she hated her parents and that “if it were not for prison, she would murder them O.J. Simpson style.” Ms. Raney testified that Dr. Campbell then got up and made some gestures that “mimicked a chimpanzee.” Ms. Raney said that Dr. Campbell seemed to be “a very upset lady on the edge.” Ms. Raney also testified that she had observed Dr. Campbell walk across the parking lot in her bathrobe without any undergarments.
Dr. Campbell testified that she acted with “some hostility” toward her parents because they came to her apartment to take her car away for the second time in the recent past. She testified that she was treated as an outpatient for depression about a year ago after she had returned to Little Rock. She testified that she could have made the statement that she would like to kill her parents because they “continually come over and provoke arguments with me and set up very frustrating situations.” She conceded that she had been outside in her bathrobe in the past when her cat had gotten out.
On this evidence the court ordered the involuntary commitment of Dr. Campbell for the purpose of a seven-day evaluation.
On October 14, 1994, the probate court held a second hearing. The only witness was Dr. Jarrod Adkisson, a second-year resident at the University of Arkansas for Medical Sciences, working as a psychiatrist for the Arkansas State Hospital. Dr. Adkisson testified that he had diagnosed Dr. Campbell as “bipolar, type II.” He testified that “type II”
indicates that within the last two years there has been an episode of major depression, which did occur last year by her own report. That also implies that there aren’t a lot of specific criteria to meet what we would call a florid, grandiose, manic stage, that there are activities which we consider to be hypomanic, which in themselves would be some of the intrusiveness that she’s shown, from the impul-sivity, some of the difficulties that she has shown both in her professional life and in her private life. It does meet the criteria for bipolar type disorder, but it’s a lesser diagnosis, less severe — it’s not as severe a form of bipolar as the regular bipolar diagnosis.
Dr. Adkisson testified that Dr. Campbell had shown some evidence of hostility toward staff and some evidence of “bizarre behavior.” He testified that she made the comment that she threw up her medication because the Italians made her do it. He testified that “another night she got angry at staff and made a rather flippant remark that she might get out of here and kill somebody.” When asked about it the next day, “she said that she was upset and had gotten angry with the staff, but denied any [intention] of wanting to hurt herself or anyone else.” Dr. Adkisson recommended that Dr. Campbell begin a trial treatment of the drug Lithium, but that she had refused to begin treatment. He testified that a drug screen was performed on appellant and that it was negative.
Finally, Dr. Adkisson testified repeatedly that Dr. Campbell was not currently a danger to herself or anyone else and that she did not require any further inpatient treatment. He testified that he believed she suffered from a “mood instability.”
After hearing the evidence the court stated that there was ample evidence to indicate Dr. Campbell suffered from a mental illness and needed some treatment. The order involuntarily committing Dr. Campbell for a forty-five day period stated that the court found by clear and convincing evidence that Dr. Campbell posed a clear and present danger to herself or others.
The case at bar is moot in a sense because the forty-five day commitment order has run its course. We nevertheless decide this case on its merits because this kind of proceeding will almost always become moot before the litigation can run its course and a decision here might avert future litigation. See Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993).
In order to obtain a forty-five day commitment order the State bears the burden of proving by clear and convincing evidence that the person sought to be committed is a clear and present danger to himself or others. Ark. Code Ann. § 20-47-214(b)(1)(A) (Repl. 1991). Arkansas Code Annotated section 20-47-207(c) (Repl. 1991) provides:
(c) INVOLUNTARY ADMISSION CRITERIA. A person shall be eligible for involuntary admission if he is in such mental condition as a result of mental illness disease or disorder that he poses a clear and present danger to himself or others;
(1) As used in this subsection, “a clear and present danger to himself’ is established by demonstrating:
(C) The person’s behavior demonstrates that he so lacks the capacity to care for his own welfare that there is a reasonable probability of death, serious bodily injury, or serious physical or mental debilitation if admission is not ordered.
(2) As used in this subsection, “A clear and present dan ger to others” is established by demonstrating that the person has inflicted, attempted to inflict, or threatened to inflict serious bodily harm on another, and there is a reasonable probability that such conduct will occur if admission is not ordered.
When the burden of proof in the trial court is by clear and convincing evidence, our standard of review is whether the trial court’s finding is clearly erroneous. See Freeman v. Freeman, 20 Ark. App. 12, 722 S.W.2d 877 (1987). We give due deference to the superior position of the probate judge to evaluate the evidence. See Warren v. Tuminello, 49 Ark. App. 126, 898 S.W.2d 60 (1995). In the case at bar there is certainly ample evidence to support the trial court’s finding from the bench that Dr. Campbell suffered from a mental illness and needed some treatment. We are convinced, however, that the court’s determination that the State proved by clear and convincing evidence that Dr. Campbell posed a clear and present danger to herself or others is clearly erroneous. While two assaults were alleged in the original petition, we note that neither Lyda Campbell nor Margaret Raney gave any testimony relating to any assault. The only witness at the forty-five day commitment hearing, Dr. Adkisson, testified unequivocally that Dr. Campbell did not pose a danger to herself or anyone else. We do not doubt that the probate judge was attempting to help the appellant nor do we doubt that the appellant needed help. Even so, an order of involuntary commitment may not issue unless the statutory requirements are met.
The order of the probate court is reversed and dismissed and the record of appellant’s involuntary commitment is to be removed from her record at the Arkansas State Hospital. See Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993).
Reversed and dismissed.
Robbins, J., and Bullion, S.J., agree. | [
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John B. Robbins, Judge.
Farm Bureau Mutual Insurance Company has appealed from a verdict for Wanda Whitten in her action for insurance coverage on the fire loss of her personal property. On appeal, appellant argues that the trial judge erred in submitting the question of coverage to the jury. We disagree and affirm.
Appellant provided homeowner’s insurance to appellee for her residence near Jerome, Arkansas. In September 1990, appellee moved her personal property from the insured premises to a house near Dermott in which she intended to reside permanently. Before appellee had finished moving, a fire destroyed her personal property in the house near Dermott. When appellee sought recovery for the loss of her personal property, appellant denied her claim because the loss did not occur at the residence listed on the declarations page of the policy.
Appellee then sued appellant. When appellant moved for summary judgment, the circuit judge found that the insurance policy was ambiguous and stated: “The Court further finds that the policy issued by defendant did not state a definite place where personal property would be excluded from coverage. The policy states that personal property coverage is covered by insurer ‘any place in the world.’ The court finds that a question of fact exists for the jury.” At trial, appellant again unsuccessfully argued that the question of coverage should not be submitted to the jury and did not introduce any evidence. The jury returned with a verdict of $20,000.00, and the circuit judge entered judgment for that amount, plus a 12% penalty and an attorney’s fee of $7,500.00.
On appeal, appellant argues that this case should not have gone to the jury because (1) “the rules of contractual construction are properly applied as a matter of law by the Court, rather than by laymen”; (2) neither party offered any parol evidence as to the meaning of the policy; and (3) the background facts are undisputed. Appellant also argues that the jury ignored the exclusions to coverage and improperly focused upon the policy’s provision that it would provide coverage to appellee’s personal property “anywhere in the world.” The policy provided as follows:
We cover personal property owned or used by you anywhere in the world. Any personal property, which is usually at your residence but has been temporarily removed by you is covered for up to 10% of the Personal Property Coverage limit but not less than $1,000 while away from the insured residence.
We do not cover . . . personal property while in any other dwelling owned, rented or occupied by you except while you are temporarily residing there ....
The initial determination of whether a contract is ambiguous rests with the court, Moore v. Columbia Mut. Casualty Ins. Co., 36 Ark. App. 226, 228, 821 S.W.2d 59 (1991), and when a contract is unambiguous, its construction is a question of law for the court. Id. When the language of an insurance contract is unambiguous, and only one reasonable interpretation is possible, it is the duty of the court to give effect to the plain wording of the policy. Ingram v. Life Ins. Co. of Ga., 234 Ark. 771, 773, 354 S.W.2d 549 (1962). Further, if the terms of an insurance contract are not ambiguous, it is unnecessary to resort to the rules of construction, Birchfield v. Nationwide Ins., 317 Ark. 38, 41, 875 S.W.2d 502 (1994), and the policy will not be interpreted to bind, the insurer to a risk which it plainly excluded and for which it was not paid. General Agents Ins. Co. of Am. v. People's Bank & Trust Co., 42 Ark. App. 95, 96, 854 S.W.2d 368 (1993); Baskette v. Union Life Ins. Co., 9 Ark. App. 34, 36-37, 652 S.W.2d 635 (1983).
In order to be ambiguous, a term in an insurance policy must be susceptible to more than one equally reasonable construction. Insurance Co. of N. Am. v. Forrest City Country Club, 36 Ark. App. 124, 127, 819 S.W.2d 296 (1991); State Farm Fire & Casualty Co. v. Amos, 32 Ark. App. 164, 166, 798 S.W.2d 440 (1990); Watts v. Life Ins. Co. of Ark., 30 Ark. App. 39, 43, 782 S.W.2d 47 (1990); Wilson v. Countryside Casualty Co., 5 Ark. App. 202, 203, 634 S.W.2d 398 (1982). An interpretation that will harmonize all parts of an insurance policy is not always possible when ambiguity exists because of two conflicting provisions. Home Indemnity Co. v. City of Marianna, 297 Ark. 268, 272, 761 S.W.2d 171 (1988). When the terms of a written contract are ambiguous, the meaning of the contract becomes a question of fact. Stacy v. Williams, 38 Ark. App. 192, 196, 834 S.W.2d 156 (1992).
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, 190-91, 861 S.W.2d 307 (1993); Baskette v. Union Life Ins. Co., 9 Ark. App. at 36. 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, 314 Ark. at 191; Drummond Citizens Ins. Co. v. Sergeant, 266 Ark. 611, 620, 588 S.W.2d 419 (1979); Pizza Hut of Am., Inc. v. West Gen. Ins. Co., 36 Ark. App. 16, 18, 816 S.W.2d 638 (1991). Accord McGarrah v. S. W. Glass Co., 41 Ark. App. 215, 219, 852 S.W.2d 328 (1993).
Here, the only issue on appeal is whether the circuit judge erred in submitting the question to the jury. Because the language in this policy is susceptible to more than one equally reasonable construction, we hold that it is sufficiently ambiguous to present a question of fact for the jury’s determination.
Affirmed.
Jennings, C.J., and Bullion, S.J., agree. | [
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James R. Cooper, Judge.
This appeal results from a judgment entered in favor of the appellee and a subsequent order denying the appellant’s motion for a new trial and extension of time in which to file an appeal. For reversal, the appellant argues that the trial court abused its discretion in denying its motion to extend the time in which to file an appeal, that the trial court erred in permitting its attorney to withdraw at trial, and that the evidence is insufficient to support the judgment. We affirm.
In January 1989, the appellant filed a complaint against the appellee to collect over $6,000.00 for paint and wall covering supplies sold to the appellee on an open account. The appellee answered and counterclaimed alleging that the appellant had competed against her in violation of the parties’ agreement and had tortiously interfered with her business relationships. The appellee sought damages in excess of $31,070.00. The appellant was initially represented by David Reynolds in this matter; however, Richard Atkinson was substituted as the appellant’s attorney by an order filed on October 5, 1990. The case was subsequently set for trial on January 27, 1993.
On October 22, 1992, Mr. Atkinson wrote the appellant notifying it of the trial date. Mr. Atkinson requested that the appellant contact him as soon as possible to advise him how it wished to proceed. By a letter dated November 10, 1992, the appellant advised Mr. Atkinson that it had charged off the appellee’s account in 1990 and further stated, “As for further litigation, we would have to have the particulars in regard to fees, court costs, etc. Thank you.” On December 3, 1992, Mr. Atkinson responded by letter and advised the appellant that there was still an active case in Faulkner County on the appellee’s counterclaim. Mr. Atkinson’s letter went on to state:
Even if you dismiss your suit against Ms. Hammet, she is not willing to dismiss the counterclaim. If you do not authorize me, or retain other counsel and appear on the 27th of January, the judge will enter a default judgment against Jones-Blair.
My fee is $100.00 per hour. If I do not hear from you within a reasonably short period of time, I will ask the court for permission to withdraw as your attorney of record in this case.
Mr. Atkinson did not receive a response to this letter nor did he have any further contact with the appellant until after the trial. The appellant contends that it never received Mr. Atkinson’s December 3rd letter.
At the beginning of the trial on January 27, 1993, Mr. Atkinson was allowed to withdraw as counsel for the appellant and leave the courtroom. No one else was present to represent the appellant. The trial court then dismissed the appellant’s complaint against the appellee and proceeded to trial on the appellee’s counterclaim. A judgment against the appellant in the amount of $39,819.90 was entered on January 28, 1993. The appellee’s attorney mailed a copy of the judgment to the appellant but it was returned “undeliverable.” A copy of the judgment was also sent to Mr. Atkinson; however, he did not notify the appellant of the entry of the judgment nor did he inform the appellant that he had been permitted to withdraw as counsel.
The appellant learned of the judgment entered against it on May 19, 1993. On June 25, 1993, the appellant filed a petition to set aside the judgment which was denied by the trial court on August 6, 1993.
The appellant did not appeal from the denial of its petition; however, on August 17, 1993, it filed a motion for an extension of time in which to file an appeal from the judgment. While this motion was pending, the appellant on September 27, 1993, filed another motion to set aside the judgment pursuant to Rule 60(c) of the Arkansas Rules of Civil Procedure.
On February 9, 1994, a hearing was held on the appellant’s motions at which time the appellant was allowed to present evidence in defense of the appellee’s counterclaim. The trial court denied the appellant’s motions in an order entered June 7, 1994. In its order, the trial court stated:
Jones-Blair Company was negligent in failing to show up for trial, and that negligence continued after the trial, until it became aware of the Judgment and took some action to set it aside. Considering [appellant’s] letter of November 10, 1992, and Mr. Atkinson’s letter of December 3, 1992, Mr. Atkinson was not required to take any more reasonable steps to comply with Rule 64 of the Arkansas Rules of Civil Procedure.
On appeal, the appellant first contends that the trial court abused its discretion in denying its motion to extend the time in which to file an appeal. Rule 4(a) of the Arkansas Rules of Appellate Procedure 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 ... Upon a showing of failure to receive notice of entry of the judgment, decree or order from which appeal is sought, the trial court may extend the time for filing the notice of appeal by any party for a period not to exceed sixty (60) days from the expiration of the time otherwise prescribed by these rules. Such an extension may be granted before or after the time otherwise prescribed by these rules has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
The appellant relies on the Reporter’s Note to the 1986 amendment to Rule 4 which states:
Additional to Reporter’s Note, 1986 Amendment: Rule 4(a) is amended to empower the trial court to extend the time for filing a notice of appeal when the party has not received notice of the entry of the judgment or order from which he seeks to appeal. The amendment represents a narrow exception to the rule that the filing of a notice of appeal is jurisdictional and, unless timely filed, there can be no appeal. White v. Avery, 226 Ark. 951, 291 S.W.2d 364 (1956). The change was deemed necessary to ensure fairness when counsel has not received notice of the entry of the judgment or other appealable order. Cf. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). Although under longstanding Arkansas custom opposing counsel have been given an opportunity to approve a judgment or order prepared by opposing counsel, circumstances have arisen where counsel did not receive that opportunity and did not otherwise receive notice that a judgment had been entered.
The appellant asserts that Rule 4(a) allows the trial court to extend the period to file an appeal beyond ninety days when the appellant can show that it did not have notice that the judgment from which it seeks to appeal had been entered. The appellant contends that, because the trial court found that it did not have notice of the judgment until more than ninety days after it had been entered, the trial court abused its discretion in denying it an extension of time in which to appeal the judgment.
It is undisputed the appellant did not receive notice of the entry of the judgment until after ninety days from the entry of the judgment. However, under the plain language of Rule 4(a), upon a showing that the appellant failed to receive notice of the entry of judgment, the trial court could have extended the time in which to file an appeal not to exceed sixty days from the date the appeal should have been filed. Thus, under Rule 4, the trial court in the case at bar did not have jurisdiction to act more than sixty days after the notice of appeal was due. Therefore, we find no error by the trial court in denying the appellant’s motion to extend the time in which to file an appeal. Given our resolution of this issue, the merits of the judgment are not properly before us, and we therefore do not address the appellant’s argument that the evidence is insufficient to support that judgment.
The appellant also argues that the trial court erred in permitting Richard Atkinson to withdraw as its attorney on the day of trial. The appellant asserts that because of this error, the judgment should be set aside pursuant to Ark. R. Civ. P. 60(c)(1) where the grounds for a new trial are discovered after the expiration of ninety days after filing the judgment. The appellant’s ground for a new trial is based upon Ark. R. Civ. P. 59(a)(1) which permits a new trial where there is any irregularity in the proceedings or any order of the court or abuse of discretion by which the party was prevented from having a fair trial. The appellant contends that permitting its attorney to withdraw in the face of the pending counterclaim resulted in prejudice and was such an “irregularity” as to prevent it from having a fair trial.
The appellant argues that Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987), requires that the appellee’s judgment be set aside. However, we think that Diebold instead supports the trial court’s actions. In Diebold, the Supreme Court held that the appellant was not entitled to have a judgment against her set aside under Rule 60(c) because she was negligent in failing to keep herself informed of the suit against her. Furthermore, a party cannot invoke the aid of the appellate court under Rule 60(c) when the party ignored the action and failed to stay informed. See CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991). A litigant is required to take notice of all proceedings during the pendency of an action to which it is a party. Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976). The burden of showing unavoidable casualty and that appellant was diligent and without negligence rests with appellant. Id.
Our review of the record leads us to conclude that the appellant has failed to sustain that burden in the case at bar. The appellant had been aware of the pending counterclaim against it since 1989 and was aware of the trial date as early as Mr. Atkinson’s letter of October 22, 1992. The appellant responded to the October 22 letter but made no further attempts to contact its attorney or to inquire about the status of the litigation. The appellant did not appear for trial nor did it inquire regarding the results of the trial. The trial court specifically found that the appellant was negligent in failing to appear for trial, that the negligence continued after trial until it became aware of the judgment, and that the appellant was negligent in not being aware of the entry of judgment.
Under these circumstances, we hold that the appellant’s negligence in failing to stay informed of the progress of the litigation precludes entitlement to a new trial under Rule 60(c). Finally, we note that the appellant, in its reply brief, suggests that it will be denied due process of law unless it is permitted to appeal. We do not reach this issue because it has been raised for the first time on appeal. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995).
Affirmed.
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Wendell L. Griffen, Judge.
Denaro Cook appeals from his convictions as an accomplice to first-degree murder, aggravated robbery, and misdemeanor theft of property. He argues that the trial court erred in 1) denying his motions for a directed verdict on all charges; 2) failing to declare two witnesses as accomplices and in admitting their uncorroborated hearsay testimony; and 3) refusing to give jury instructions for the lesser included charges of robbery and felony manslaughter. We hold that any error committed by the trial court was harmless error, and affirm.
Appellant was charged as an accomplice to capital murder, aggravated robbery, and felony theft of property in connection with a murder that occurred during the April 13, 1999 robbery of Western Sizzlin’, a restaurant located on Rodney Parham Road in Little Rock. Appellant and his brother, Torian, were employed as servers at the restaurant and were working on the night of the incident. It is undisputed that on April 13, the restaurant was robbed by their brother, Keyono Cook, also known as “Buck,” and by a friend of appellant’s, Frank Barnes. David Nichols, the manager of the restaurant, was shot and killed during the robbery.
Keyono Cook and Frank Barnes were former employees of the restaurant. On the evening of April 13, Frank, Rodney Barnes (Frank’s brother), Nakia Hall (Frank’s girlfriend), Tim Dillard, and Keyono met at Franke’s, another restaurant located'on Rodney Parham. Keyono drove appellant’s car and Frank drove his own car. Keyono had a gun and a mask and indicated that he was going to rob Franke’s. However, he abandoned that plan because he concluded the area was too well-lit. Their group then went to Western Sizzlin’.
The testimony by appellant’s co-workers and other witnesses established that the group arrived at the restaurant shortly before closing. Appellant went outside and talked to Keyono two times, and appellant at one point motioned for them to come in. Keyono and Frank subsequently entered the restaurant through the back door and took an undetermined amount of money in a bank bag. Keyono later dumped the gun and went to Frank’s house to divide the money.
During the trial, appellant objected to Dillard’s testimony. The State sought to have Dillard testify that after Keyono spoke with appellant the second time, he got back into his car and stated that appellant told him that everything was set up inside and that the back door was unlocked. Appellant objected that this was hearsay, and the trial court overruled his objection on the basis that it was admissible under Arkansas Rule of Evidence 801(d) (2) (v), as a declaration of a co-conspirator during the progress of a crime.
At the close of the State’s evidence, appellant moved for a directed verdict on all charges, arguing that the testimony of Dillard and Rodney Barnes was not corroborated and that the State had no evidence to independently connect appellant with the crime. He also asked that the court declare Dillard and Barnes to be accomplices as a matter of law. The trial court reduced the felony theft of property charge to a misdemeanor. However, the court declined to rule Dillard and Barnes accomplices as a matter of law. It also denied the motions for a directed verdict with respect to the remaining charges. Appellant thereafter testified. He denied any participation in the planning or execution of the robbery and asserted that he tried to discourage his brother (Keyono Cook) from committing the robbery. He renewed his motions at the close of all of the evidence and requested that the trial court instruct the jury on the lesser-included offenses of robbery and felony manslaughter. Although the trial court denied these motions, it provided an instruction on the lesser charge of first-degree murder.
The jury found appellant guilty as an accomplice to aggravated robbery and to the reduced charges of first-degree murder and theft of property. He was sentenced to serve ten years on the murder charge, ten years on the aggravated robbery charge to run consecutively with the murder charge, and six months on the theft of property charge to run concurrently with the other two charges, for a total of twenty years in prison.
I. Summary of the Testimony
Kyona Hyder was working at the restaurant the night of the robbery. She noticed that the back doors were unlocked, which she said was unusual. She witnessed Frank running at the side of the building toward the back of the building. When she asked appellant if he saw Frank running to the back of the restaurant, appellant told her that Frank had to use the restroom. Hyder also saw Frank and Keyono inside the restaurant by the utility closet in the back of the restaurant, near the manager’s office. She said that Keyono had a ski mask on top of his head. When she asked what they were doing, Keyono gestured for her to be quiet. She said that she asked appellant if he saw Keyono back there. Hyder said later in the evening appellant told her that he thought Keyono had killed Nichols. Because appellant had an apparent propensity for joking, he showed Hyder that his hands were shaking, so she would know he was “for real.” She testified that either appellant or his brother, Torian, told her before she left the restaurant not to say anything regarding the robbery.
Sharronda Arnold, another coworker, testified that she saw Keyono and Frank Barnes pull up and park in two separate cars. She stated that Nakia and Rodney Barnes were also with Frank. According to Arnold, Torian went outside, then came back in and talked to appellant. When Torian came back in, he said that Keyono was going to rob the place and asked Torian if he robbed the place would anyone “snitch” on him.
Arnold further testified that after Torian came back inside and talked to appellant, appellant then went outside and talked to Keyono for approximately ten minutes and made hand motions that appeared to her to be indicating, “Come in.” Appellant then returned and walked to the back of the restaurant. Arnold stated that appellant told her they were going to rob the restaurant, but he was laughing and she thought he was kidding. After that, she saw Keyono and Frank walk to the side of the building where the back doors were located. She heard some loud bangs, but she thought that someone had dropped trays. When she went toward the back of the restaurant, she saw Keyono running toward the back door and saw Frank going the opposite direction. She said that Keyono was wearing a black mask and was carrying a green money bag and carried something that looked like a gun. Arnold further stated that Rodney Barnes came inside the restaurant while the employees were looking for Nichols. She said that appellant told her that they had killed Nichols. While they were waiting for the police, appellant told her to tell the police that she did not know anything.
Tim Dillard testified that he, Frank, Nakia, and Keyono rode together to the restaurant and that Rodney Barnes arrived in a separate vehicle. Dillard stated that it was Keyono’s idea to go to Western Sizzlin’. He said that Keyono got out of his car and talked to Rodney, then appellant came outside two times and talked to Keyono. After the second time, Keyono got back inside the car and said that appellant told him that the back door was open, it was clear to go in, and business was slow. Then, Keyono got a gun and a mask and went into the back of the restaurant.
Dillard further testified that Frank came out through the front door. When Frank got into his car, he said that Keyono shot someone. Frank proceeded to drive away, but stopped to pick up Keyono, who had come out of the restaurant and was waving the bank bag behind him. Dillard stated that Frank stopped the car and picked up Keyono, who dumped the gun in a sewer on 15th and Pulaski Street, behind Church’s Fried Chicken. After Keyono dumped the gun, they had trouble getting the car started again. Dillard said that he steered the car while others pushed the car to get it started again. When they got the car started again, they then went to Frank’s house to count the money. According to Dillard, Keyono took the money out of the bag and counted out approximately $1,800 to $2,100. He said that Keyono gave Frank a “lump sum” of money and kept the rest. Dillard denied that he received any money. He said that Keyono threatened to “take care” of anyone who told the police what happened. He also said that appellant later told him that he was going to “handle” him because he “snitched.”
Rodney Barnes testified that he rode to Western Sizzlin’ with Keyono in appellant’s car. He said that Frank arrived in a separate car. He said that Torian came outside first and Keyono told him that they were going to rob the restaurant. Rodney stated that Torian tried to discourage Keyono and Keyono seemed to agree that it was a bad idea. Rodney said that appellant came outside then and told Keyono that the back door was open, that the manager was in the office counting the money, and to go on in. According to Rodney, Keyono was “all hyped up” and “did not hesitate” after appellant spoke with him. He said that Keyono got a mask and a gun, and went in the back of the building, with Frank following thereafter. About fifteen minutes later, Frank came out the front doors and left in his car. At this point, Rodney went inside. He said when he got inside, appellant told him, “Don’t say nothing.” Rodney testified that Arnold stated, “If we just got robbed, David will come out and call the police. He might be dead,” to which appellant responded, “I don’t care. We got to pay our rent.”
Rodney further testified that he accompanied Keyono to Andrew O’Conner’s house a few days prior to the robbery, to get a mask. Rodney stated, “He got the mask so he can rob somebody. I knew Buck was going to rob somebody.” However, he testified that appellant never saw the gun or the mask, because they were in the trunk when appellant came outside to talk to Keyono.
Joseph Williams testified that early on April 14, 1999, Keyono was at^his house and appellant, Torian, and Rodney Barnes came over. Williams testified that Rodney requested his share of the money.
Nakia Hall, Frank Barnes’s girlfriend, testified that Frank and Tim picked her up from work at K-Mart that night. She said that when the car stopped after the robbery, Frank, Dillard, and Keyono pushed the car to get it started again. She also stated that Dillard was present when the money was counted.
Testimony by other witnesses established that a money bag containing checks stolen during the robbery and a mask were recovered at Interstate Park and the gun was recovered in a storm drain at 15th and Pulaski.
Dr. Stephen Erickson, an associate medical examiner from the Arkansas Crime Laboratory, testified that Nichols received two gunshot wounds, one in the chest and one which went through his right wrist to his abdomen. He said that Nichols’s right wrist had stippling marks, indicating that it was within six inches to one foot of the gun when it was discharged. However, the bullet wound to the chest showed no evidence of close range of fire. Erickson could not state definitively whether the stippling marks on Nichols’s wrist indicated that he was in an aggressive or defensive posture when the gun was discharged.
Appellant also testified. He denied participating in any way in the robbery or the murder. He admitted that he knew the back doors were unlocked, but he assumed that the manager knew they were unlocked. He testified that when he went outside the first time, he told Keyono that he would be out after they rolled some more silverware. He said that while he was talking to Arnold, Torian came in and told him that Keyono was wondering if they would get caught if they robbed the restaurant and suggested that appellant go talk to him. Appellant said that he told Keyono that he would get caught and that Keyono should leave his car there and leave the premises. He maintained that at this point, he went into the back of the store to talk to one of the dishwashers and did not see Keyono any more. Appellant said that after he talked to the dishwasher, he told Arnold that Keyono “and them” were “talking about robbing the place.” He admitted that he told Arnold not to tell anyone because he assumed his brother would get into trouble by merely talking about committing a robbery. He also admitted that he heard the gunshots and told Arnold that he thought Keyono and Frank had killed Nichols.
Appellant remained at the restaurant until after the police came. On his way home, Keyono paged him to come to Joe Williams’s house. When he entered Williams’s house, he said Keyono asked him, “Did dude die?” Appellant denied threatening anyone and denied telling Keyono that he could slip in the back of the restaurant. To the contrary, he asserted that he was the “hero” because he tried to prevent the robbery.
II. Sufficiency of the Evidence
Appellant first argues that no substantial evidence supports his convictions because the only evidence used against him was based on the uncorroborated testimony of Barnes and Dillard, whom he asserts should have been declared accomplices as a matter of law. We consider the sufficiency of the evidence before evidentiary errors in order to protect a defendant’s right to be free from double jeopardy. See, e.g., Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). In conducting this review, we examine all of the evidence, including that evidence allegedly admitted erroneously, and review the evidence in the light most favorable to the State. .See, e.g., Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. See Killian v. State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). We will affirm if there is substantial evidence to support a verdict. See Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. See Hall v. State, 315 Ark. 385, 868 S.W.2d 453 (1993).
Appellant was convicted of acting as an accomplice to first-degree murder because the murder took place in furtherance of an underlying felony, an aggravated robbery. He was also charged with misdemeanor theft. We hold that substantial evidence supports that appellant acted as an accomplice in committing each of these crimes.
A person commits robbery if he, with the purpose of committing a felony or misdemeanor theft employs or threatens to employ physical force upon another person. See Ark. Code Ann. § 5-12-101(a) (Repl. 1997). A person commits aggravated robbery if he commits robbery and he is armed with a deadly weapon or represents by word or conduct that he is so armed; or inflicts or attempts to inflict death or serious physical injury upon another person. See Ark. Code Ann. § 5-12-103 (Repl. 1997). Although there were no witnesses to the actual robbery, we hold that the various witnesses’ testimony provided substantial evidence that the culprits were armed. Various witnesses saw Keyono take a gun into the restaurant, two witnesses heard loud banging noises, the manager was shot and killed, and witnesses testified that Keyono dumped the gun in a sewer, where it was later recovered. Further, Keyono was seen running out of the restaurant carrying a money bag and later counting money from the money bag. Therefore, substantial evidence supports that an aggravated robbery took place.
This same evidence supports a conviction for first-degree murder. Pursuant to Arkansas Code Annotated section 5-10-102(a)(l) (Repl. 1997):
(a) A person commits murder in the first degree if:
(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.
It is undisputed in this case that Nichols, the manager of the restaurant, was killed during the robbery attempt. The testimony of the witnesses supports that Keyono Cook shot Nichols and is sufficient to demonstrate that the offense of first-degree murder was committed.
The evidence is also sufficient to support the reduced charge of misdemeanor theft. Pursuant to Arkansas Code Annotated section 5-36-103 (Repl. 1997):
(a) A person commits theft of property if he:
(1) Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof; or
(2) Knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof.
(b)(4) Theft of property is a Class A misdemeanor if the value of the property is $500 or less.
Several witnesses testified that Keyono had a money bag when he left the restaurant. Further, Dillard testified that Keyono removed the money from the bag and counted between $1,800 and $2,100. Based on this testimony, the trial court found could have properly found that the evidence was sufficient to prove that an amount under $500 was taken. We find no error in this regard.
The next issue is whether there was sufficient evidence to find appellant guilty as an accomplice to these crimes. An accomplice is one who directly participates in the commission of an offense or who, with the purpose of promoting or facilitating the commission of the offense, aids, agrees to aid, or attempts to aid the other person in the planning or committing of the offense. See Ark. Code Ann. §§ 5-2-403(a)(l)-(2) (Repl. 1997). When two or more persons assist each other in the commission of a crime, each is an accomplice and is criminally liable for his own conduct as well as that of the other person’s conduct, even though he did not personally take part in every act. See Phillips v. State, 17 Ark. App. 86, 703 S.W.2d 471 (1986). The relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in the proximity of the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. See id.
Here, viewing the evidence in the light favorable to the State (as the prevailing party at trial) and giving deference to the jury’s apparent findings of witness credibility, there was overwhelming evidence that appellant acted as an accomplice. Appellant’s brother, one of the culprits, drove appellant’s car to the crime scene. Appellant verified for his brother that the back door was open, and informed him that the business was slow, the manager was counting the money, and that he should come in. He also instructed or warned other witnesses not to talk to the police. Finally, he believed that the proceeds of the robbery would be partially used for his benefit, to pay the rent. On these facts, we hold that the trial court did not err in denying appellant’s motions for a directed verdict with respect to each charge.
III. Corroboration of Accomplice Liability
Appellant’s next argument is that the trial court erred in not declaring Dillard and Rodney to be accomplices, and in admitting their uncorroborated hearsay testimony. A conviction cannot be had in any felony case upon the testimony of an accomplice unless other evidence tending to connect the defendant with the commission of the offense corroborates the accomplice’s testimony. See Ark. Code Ann. § 16-89-111(e)(1) (1987). The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. See Ark. Code Ann. § 16-89-111 (e)(1) (1987). The test for determining the sufficiency of corroborating evidence is whether the remaining evidence independently establishes the crime and tends to connect the accused with its commission. See Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994).
First, we note that appellant offered no objection to Rodney’s testimony when Rodney testified. Instead, he merely waited until the close of the evidence and requested that the court declare Rodney to be an accomplice. Therefore, he waived his objection to Rodney’s testimony in this regard. See Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977) (holding issue of the suffi-. ciency of corroborating testimony of accomplice was waived where the requirement of corroboration was not raised to the trial court).
Second, even if the trial court erred in not declaring Dillard and Rodney to be accomplices, the error is harmless, because the remaining evidence is sufficient to independently establish the crime and to connect appellant with its commission. We may affirm where evidence of guilt is overwhelming and the error is slight. See Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). It is true that the remaining evidence does not cor- robórate that appellant made the inculpatory statements attributed to him by Dillard and Rodney. However, the testimony by Hyder, Arnold, appellant, and the remaining witnesses independently corroborates the evidence establishing that the offenses were committed and establishing appellant’s connection to the commission of those offenses.
Similarly, because the remaining evidence is sufficient to support the charges, the trial court committed harmless .error in admitting Dillard’s testimony as a co-conspirator pursuant to Arkansas Rule of Evidence 801(d) (2) (v) without declaring him to be an co-conspirator.
IV. Jury Instructions
Appellant was originally charged as an accomplice to capital felony murder and aggravated robbery. He was found guilty of aggravated robbery and of the reduced charge of first-degree murder. His final argument is that the trial court erred in denying his request for jury instructions on the lesser included offenses of robbery and felony manslaughter. He maintains that the trial court erred because there was evidence from which a jury could have found him guilty of these lesser charges. We disagree.
A. First-Degree Felony Manslaughter
At trial, appellant proffered instructions on first-degree felony manslaughter on the theory that a jury could have determined that Keyono could have acted negligently in causing Nichols’s death because there was evidence to support that he was shot when the gun was discharged during a struggle.
A trial court’s ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. See Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. See Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). We will affirm a trial court’s decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. See id. Where the defendant relies on the defense of complete denial, there is no rational basis for giving instructions on lesser-included offenses and the trial court is correct to refuse such instructions. See Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993); Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470 (1994).
A person commits capital murder if he commits robbery and in furtherance of the robbery, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101(a)(l) (Repl. 1997). A person commits murder in the first degree if he commits a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. See Ark. Code Ann. § 5-10-101(a)(l). A person commits felony manslaughter if he commits a felony and in the course of and in furtherance or the felony or in immediate flight therefrom he or an accomplice negligently causes the death of any person. See Ark. Code Ann. 5-10-104(a)(4).
Appellant maintains that in Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2000), the Arkansas Supreme Court held that felony manslaughter is a lesser-included offense of capital felony murder and first-degree felony murder, and can be submitted as a lesser instruction if the evidence presented would support a finding that the defendant, or an accomplice acted negligently. Citing Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984), he argues that to sustain the charge of capital murder, first-degree murder or felony manslaughter, the State must prove two culpable states — one for the underlying felony and one for the death that occurred. He further asserts that felony manslaughter contains essentially the same language, but has a lower degree of culpability as it relates to death.
Appellant’s argument is unpersuasive. First, he denies any involvement in the crime; therefore, there is no rational basis for the trial court to provide an instruction on the lesser-included offense. See Vickers v. State, supra; Martin v. State, supra. Second, as the State notes, the Arkansas Supreme Court has recently rejected appellant’s argument in Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). In Hill, supra, our supreme court held that felony manslaughter adds an additional element to felony murder relating to the perpetration of the murder itself and therefore, is not a lesser-included offense of capital murder or first-degree murder.
In Hill, the defendant was charged with aggravated robbery and attempted capital murder. The Hill defendant, like appellant here, received a jury instruction on capital murder and first-degree murder. The Hill defendant also requested an jury instruction on felony manslaughter on the theory that he had negligently caused the death of the victim. See id.
The Hill court affirmed the trial court’s refusal to issue the instruction on felony manslaughter, holding that the only culpable mental state where the murder is committed during a felony relates to the crime of the underlying felony and not to the murder itself. That is, to sustain a conviction for capital murder or first-degree felony murder, the State must only prove the mental state relating to the underlying felony. See id. Therefore, the Hill court found that felony manslaughter, in which a death is negligently committed in the course of a felony, is not a lesser-included offense of capital murder or first-degree murder because it adds an additional element to the crime charged — the mental state relating to the commission of the murder. See id. The Hill court also stated that felony manslaughter did not represent a less serious injury to the victim because death still results. Finally, the Hill court stated that felony manslaughter did not represent a lesser culpable mental state because the mental state to perpetrate robbery is the same for capital felony murder and manslaughter. Therefore, pursuant to Hill, appellant was not entitled to a jury instruction on the theory that his accomplice acted negligently.
Finally, appellant’s reliance upon Britt v. State, supra, is misplaced. The defendant in that case was charged with attempted first-degree felony murder and first-degree murder. He argued the trial court erred in not providing instructions on second-degree murder and manslaughter. The Britt court did not state that a defendant charged with first-degree felony murder is entitled to an instruction on felony manslaughter. The Britt court merely found that there was no rational basis for giving the instruction in that case because there was no evidence that the defendant acted under extreme emotional disturbance, or acted recklessly or negligently.
Based on these authorities, we hold that the trial court did not err in denying appellant’s request for an instruction on felony manslaughter.
B. Aggravated Robbery
Finally, we hold that the trial court did not err in denying an instruction on the lesser-included offense of robbery. Appellant maintains that he was entitled to such an instruction because a jury could have found that he did not know that Keyono had a gun. The State counters that appellant denied any participation in the robbery; therefore, an instruction on a lesser-included charge was not warranted. The State further asserts that where it is undisputed that an armed robbery took place, the lesser-included instruction on robbery is not necessary. See Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984).
Robbery occurs when a person, with the intent of committing theft or resisting apprehension, uses or threatens to immediately use physical force upon someone. See Ark. Code Ann. section 5-12-102(a) (Repl. 1997). A person commits the offense of aggravated robbery when he commits robbery and is armed with a deadly weapon or represents to his victim by word or conduct that he is armed. See Ark. Code Ann. § 5-12-103(a)(1) (1993). It is clear under our case law that robbery is a lesser-included offense of aggravated robbery. See Lovelace v. State, 276 Ark. 462, 637 S.W.2d 548 (1982).
The State’s reliance on Young v. State, supra, is misplaced. Our law clearly recognizes that a person charged as an accomplice to aggravated robbery may be entitled to an instruction on the lesser-included offense of robbery, even where it is undisputed that a weapon was used. See, e.g., Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983). Although a defendant’s liability may be limited to that of an accomplice to mere robbery if the other person, without the defendant’s knowledge, commits a robbery using a weapon, see Savannah v. State, supra, that is not the case here. Appellant did not assert that he agreed to participate in a robbery and that unbeknownst to him, Keyono and Frank used a gun. Rather, he denies any and all participation in the robbery and even argues that he is a “hero” because he tried to prevent the robbery.
As previously noted, it is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence, and we will affirm a trial court’s decision to exclude an instruction on a lesser-included offense where there is no rational basis for giving the instruction. See Britt v. State, supra. Given this standard, we hold that the trial court did not err in refusing to give an instruction on the lesser-included-offense of robbery. First, the court did not err because appellant denied any participation in the robbery. See Vickers v. State, supra; Martin v. State, supra.
Second, appellant’s reliance upon Waggle v. State, 50 Ark. App. 198, 901 S.W.2d 862 (1995), is misplaced. In Waggle, the defendant admitted that she participated in the robbery. However, she denied that she knew the defendant had a gun. The Waggle defendant aided her boyfriend in robbing a store, by going into the store two times on the pretext of purchasing candy, and then reporting to her boyfriend how many customers were in the store. See id. After he exited the store waving money and brandishing a pistol, she complied with his orders to drive away. The defendant maintained that she did not know why her boyfriend wanted her to go into the store and report on the number of cus tomers. The Waggle court found that an instruction on robbery was warranted because a jury could believe that she assisted in the commission of the robbery, but that she was unaware that her boyfriend possessed a gun. See id.
Unlike the defendant in Waggle, appellant here denied any participation in the robbery. Therefore, the trial court had a rational basis for denying his motion for a lesser-included instruction on robbery and did not abuse its discretion.
Affirmed.
Stroud, C.J., Jennings, Vaught, and Roaf, JJ., agree.
Pittman, Hart, Robbins, and Neal, JJ., concurring in part and dissenting in part.
The witnesses’ testimony conflicts with regard to which parties rode in which car to Western Sizzlin'. However, the testimony seems clear that after the robbery, Rodney Barnes remained at the restaurant, and the rest of these individuals left together in Frank’s vehicle.
The State filed a notice of cross-appeal with regard to the trial court’s ruling sustaining appellant’s objection to a voir dire question posed by the State during jury selection. However, the State offers no argument in this regard in its brief. Therefore, we do not address this issue.
Moreover, as the State notes, to hold as appellant urges would lead to an absurd result, because a person who negligently caused the death of another person would be guilty of only a Class C felony, while the armed robber who does not cause death would guilty of a Class Y felony.
However, we note that the Biitt holding implies that a defendant who presented such evidence might be entitled to such an instruction. While the supreme court in Hill did not state that it was overruling Britt, because Hill was decided subsequent to Britt, it would seem that to the extent that Britt is inconsistent with Hill, it would be overruled by implication. | [
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Olly Neal, Judge.
This is an appeal from the Workers’ Compensation Commission (Commission), reversing the decision of the administrative law judge (ALJ) and awarding appellee additional benefits. On appeal, appellants argue that the Commission erred in holding that Cal Jones is entitled to addi tional benefits because the decision is not supported by substantial evidence. We affirm.
The facts are as follows. Appellee Cal Jones was employed with appellant Smith Blair when he injured his right wrist on December 1, 1998, while testing and loading water meters at its, Texarkana, Arkansas, plant. Dr. Mark Gabbie, the initial treating physician, referred Jones to Dr. Hamlin, who then referred Jones to Dr. Frazier for surgery.
Dr. Frazier diagnosed appellee with having a painful ulna sty-loid nonunion right wrist and recommended he undergo surgery, which was performed on April 2, 1999. On April 10, 1999, Dr. Frazier released appellee to return to work. When appellee returned to work, he was unable to perform his job duties for more than two hours due to the pain in his right upper extremity. On April 28, 1999, appellee requested a change of physicians. The request was denied, but appellee filed a request for a hearing. The ALJ, following the August 6, 1999 hearing, concluded that appellee was entitled to a change of physician and selected Dr. DeHaan, a Texarkana orthopedic surgeon.
After several examinations, Dr. DeHaan diagnosed appellee with having a nonunion ulna styloid fracture and a congenital ulna positive wrist. Dr. DeHaan recommended an ulna shortening procedure. After the procedure was performed, Dr. DeHaan recommended that appellee undergo physical therapy. Appellants refused to pay for the therapy, and appellee filed a claim requesting additional temporary total disability. The ALJ determined that appellee failed to prove by a preponderance of the evidence that he was entitled to additional medical treatment or benefits for temporary total disability. The Commission reversed the ALJ’s finding, and this appeal follows.
In reviewing a decision of the Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001); Campbell v. Randal Tyler Ford Mercury, 70 Ark. App. 35, 13 S.W.3d 916 (2000). The question is not whether the evidence would have supported findings contrary to those made by the Commission, but only whether the Commission’s decision is supported by substantial evidence. Matlock v. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001).
It is well settled that the employer takes an employee as he finds him. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Being a new injury with an independent cause, an aggravation must meet the requirements for a compensable injury. Id. To sustain a compensable injury, one must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of the employment, (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death, and (3) the injury was a major cause of the disability or need for treatment. Id.
Whether there is a causal connection between the injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission to determine. Oak Grove Lumber v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Further, a compensable injury must be established by medical evidence supported by objective findings. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Crudup; supra. Speculation and conjecture cannot substitute for credible evidence. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (Ark. App. 1980).
Appellants contend that there are four basic reasons the evidence is not substantial to support the Commission’s finding that appellee is entided to additional benefits. First, appellants argue that appellee was ordered to return to work by Dr. Frazier follow ing his surgery without restrictions and that Dr. Frazier is the physician best qualified to examine appellee; thus, because Dr. Frazier found no impairment to his right upper extremity or right wrist, appellee was able to return to work. Further, appellants argue that because Dr. Frazier, in his June 29, 1999, report, opined that appellee could return to work, his healing period ended on June 29, 1999.
A claimant who has suffered a scheduled injury is entitled to benefits for temporary total disability during his healing period or until he returns to work. Ark. Code Ann. § 11 — 9— 521(a) (Supp. 1999); see also Wheeler Const. Co. v. Armstrong, supra. The “healing period” continues until the employee is as far restored as the permanent character of his injury will permit, and there is nothing further in the way of treatment that will improve that condition. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).
Appellee attempted to return to work; however, he suffered severe pain when he went back to work. Thereafter, Jones requested that he be allowed to see another physician. He was eventually seen by Dr. DeHaan, who later diagnosed appellee with another condition that was causing his continued pain. Dr. DeHaan diagnosed a congenital ulna positive wrist condition that he opined was aggravated by claimant’s injury. In his deposition, Dr. DeHaan stated, “I think whatever injury he had aggravated or injured that thing which he was born with or that deformity which he was born with.” The Commission recognized that only Dr. DeHaan diagnosed appellee’s condition and opined that it was aggravated by and causally related to his employment. It therefore found that appellee proved that the aggravation to his congenital ulna positive wrist condition was job-related and compensable. We agree.
Second, appellants argue that evidence is not substantial to support the Commission’s finding that appellee is entitled to additional benefits because appellee did little to further his rehabilitation and instead primarily relied on obtaining pain control medications. Appellants outline appellee’s medical records chronologically in an effort to show that appehee was, in essence, addicted to pain medication, and failed to complete the necessary therapy to rehabilitate himself. They rely on the fact that Dr. Frazier prescribed no pain medication when he released Jones to return to work; nor did Dr. Gabbie when he saw appellee in July. However, Dr. DeHaan noted that claimant had a legitimate reason for his continued pain and there is no indication in the medical records that his efforts to relieve pain with prescription medication was unreasonable or excessive. We note that the Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). Also, this argument lacks any citation to authority, and we will not consider the merits of an argument when an appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Matthews v. Jefferson Hosp. Assoc., 341 Ark. 5, 14 S.W.3d 482 (2000).
Third, appellants contend that after his surgery, appellee exhibited a lack of effort at rehabilitation and failed to follow the orders of his physician. Appellants recount the record of physical therapy sessions that appellee either canceled or did not complete as evidence of his lack of effort. Appellants also point to the fact that it was recommended that appellee undergo a home program and that there is no evidence that appellee even attempted the program. However, as the Commission correctly points out, “there is no evidence that Jones tried to implement the home therapy, but there is likewise no evidence that claimant has not tried it either.”
Finally, appellants argue that “appellee’s credibility is questionable and inconsistent.” Appellants fail to recognize that questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 188, 975 S.W.2d 857 (1998). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). Furthermore, it is weE established that it is within the Commission’s province to weigh aE the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission is entitled to review the basis for a doctor’s opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).
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John Mauzy Pittman, Judge.
Linda Bonebrake appeals from her conviction at a jury trial of possession of a controlled substance (cocaine) with intent to deliver. She was sentenced to twenty years in the Arkansas Department of Correction and fined $2,000.00. She argues that the trial court erred in denying her motion to suppress evidence obtained from a search that she contends was not incident to a lawful arrest. We affirm.
Officer Kurt Spears of the Dardanelle Police Department testified that he was called to assist appellant who had locked her keys in her car. When he arrived, appellant’s nine-year-old daughter, Mindy, told him that her mother’s keys were locked in her mother’s car. Officer Spears testified that appellant was in the lobby of Wal-Mart, that he recognized her from a previous arrest, and that he was aware of her general background. After confirming ownership of the vehicle, appellant accompanied Officer Spears to the vehicle. An information check indicated that the license was registered to a different vehicle. A ACIC check revealed that there were outstanding arrest warrants issued against appellant for hot check violations. Officer Spears placed appellant under arrest, patted her down, searched her pockets, and placed her in the patrol car. While appellant was seated, her daughter brought appellant’s purse to her. Appellant said, “No, get that away, get it out of here.” Officer Spears testified that he stated to appellant’s daughter, “No, just leave it here; she might need that.” Appellant took the purse from her daughter. Officer Spears asked her if it contained a weapon. When he searched the purse to confirm her denial, he discovered self-closing plastic baggies containing a white powdery substance, which later proved to be cocaine.
Appellant argues that seizure of her purse as part of a search incident to her arrest was improper because it was not in her possession at the time of her arrest. We find no error.
Arkansas Rule of Criminal Procedure 12.1 permits an officer making a lawful arrest to conduct a search, without a warrant, of a person or his property to protect the officer, to prevent the accused’s escape, or to obtain evidence of the commission of an offense for which the accused is arrested or to seize contraband or fruits of the crime. Moreover, a search incident to an arrest may be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. U.S. v. Chadwick, 433 U.S. 1 (1977). A search incident to an arrest must be substantially contemporaneous with the arrest and not remote in time and place. Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 (1969). Thus, a search may be made only of the area within the immediate control of the person arrested, which has been held to be the area from within which he might gain possession of a weapon or destructible evidence. Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991) (citing Chimel v. California, 395 U.S. 752 (1969)).
Relying on U.S. v. Rothman, 492 F.2d 1260 (9th Cir. 1973), appellant argues that the police cannot arrest her and then bring her into contact with possessions which are unrelated to her arrest and not within her immediate possession. Appellant cites U.S. v. Wright, 577 F.2d 378 (6th Cir. 1978), where the court ruled as impermissible a search, incident to arrest, of the defendant’s luggage, which was not present at the time of arrest and was in the custody of an airline. The court said the only reason the luggage was near the defendant was because the officer obtained the luggage and placed it there. Similarly, appellant relies on U.S. v. Perea, 986 F.2d 633 (2nd Cir. 1993), where the court struck down a search of the defendant’s duffel bag in the car trunk because the officers could not justify the search as incident to arrest by bringing the item they wished to search near the arrestee. However, these cases are distinguishable from the case now before us. Here, Officer Spears did not bring appellant’s purse to her or manipulate her to be in the vicinity of her purse. Without the officer’s initiation or instruction, appellant’s daughter brought the purse to her, Officer Spears stated that she may need it, and appellant chose to take it. See also U.S. v. Jeffers, 524 F.2d 253 (7th Cir. 1975) (search incident to arrest upheld when arrestee sought to give purse to her mother and officer told her that she would need to keep it with her). This case is not one in which an officer arranged an incident-to-arrest exception by bringing an item into the area of an arrestee for the purpose of a search.
Appellant also argues that the evidence should have been suppressed because it was unrelated to the offense for which she was arrested (hot check violations). Arkansas Rule of Criminal Procedure 12.1(d) limits the scope of a search for evidence connected with the offense for which one is arrested, but does not limit the items that may be properly seized. Van Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987). The rule allows the arresting officer to seize contraband, the fruits of crime, and any other things criminally possessed which are discovered during a proper search incident to arrest. Once such items are discovered, they may be seized and used as evidence without regard to whether they are connected with the offense for which the accused was initially arrested. Id.
In reviewing a trial court’s decision to deny an appellant’s motion to suppress evidence, this court makes an independent determination based on the totality of the circumstances and reverses the decision only if it is clearly against the preponderance of the evidence. Myers v. State, 46 Ark. App. 227, 878 S.W.2d 424 (1994). We cannot say that the court’s denial of appellant’s motion to suppress is clearly erroneous.
Affirmed.
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John B. Robbins, Judge.
In 1996, appellant Aon Risk Services, as agent for Cincinnati Life Insurance Company (CLIC), sold a policy to appellee Linda Mickles insuring the life of her son, Antonio Robinson. When Antonio died later that year, appellee submitted a claim to CLIC for the policy proceeds, which CLIC rejected due to an alleged misrepresentation in the application. Appellee denied making the misrepresentation, and indeed later events showed that the words constituting the misrepresentation had been placed on the application by someone other than appellee. Appellee sued CLIC and Aon and obtained a jury verdict for bad faith and outrage against CLIC and deceit and outrage against Aon; she was awarded $120,000 in compensatory damages, apportioned fifty percent to each defendant, and $1 million in punitive damages against CLIC and Aon individually. Aon and CLIC appealed, and in Cincinnati Life Insurance Co. v. Mickles, 85 Ark. App. 188, 148 S.W.3d 768 (2004) (Mickles I), we affirmed the verdict against CLIC, while reversing and remanding the verdict against Aon for a new trial. Thereafter, appellee accepted a satisfaction of judgment from CLIC for $1,060,000, plus costs and interest.
In May 2005, a new trial was conducted on appellee’s outrage and deceit claims against Aon. On this occasion, the jury found against appellee on her outrage claim but awarded her $58,884 on her deceit claim, plus $2 million in punitive damages. Aon filed post-trial motions, after which the deceit award was reduced to $29,942, but the punitive verdict stood. Aon now appeals and raises the following arguments: 1) appellee’s claim for deceit was not supported by substantial evidence; 2) appellee’s compensatory verdict should be reduced by $60,000 previously paid by CLIC, which would result in a zero verdict against Aon; 3) because the compensatory verdict should be reduced to zero, the punitive-damages award cannot stand; 4) alternatively, the punitive-damages award is excessive under Arkansas common law and the Due Process Clause of the United States Constitution. We affirm the verdict of $29,942 in compensatory damages and as modified to $750,000 in punitive damages on condition of a remittitur.
Although we set out the facts of this case in Mickles I, we reiterate some of the more pertinent evidence here to provide a context for our discussion. In 1996, Aon was employed by CLIC as its agent for the purpose of selling life insurance policies and taking applications at the applicants’ places of employment. According to the CLIC manual, its policies were available to employees and their spouses or “children, under age 23, unmarried, not in military service and dependent upon you for their support.” Appellee was a minimum-wage worker in the laundry department of Chenal Rehabilitation Clinic in Little Rock when Aon representatives visited her workplace in July 1996. In response to the visit, appellee took out nine policies on her children and grandchildren, including her son, Antonio. In completing the applications, appellee verbally answered the questions and the enroller wrote down her answers. During this process, she asked the enroller whether Antonio would qualify for a policy since he was married and did not live with her; she further explained that Antonio had a learning disability, could not read or write, and qualified for SSI benefits, which she distributed to him as needed. The enroller assured her that Antonio would qualify and further, according to appellee, told her that the policy would pay double indemnity should Antonio’s death be accidental.
The application for Antonio’s policy, which CLIC would later claim contained a misrepresentation, reflected that he was a dependent, was just under twenty-one years old, that he was married, and that he was a full-time student; it was signed by-appellee and by James Foster of Aon as the “Agent Witness.” The face amount of the policy was originally stated on the application as $38,942, but that figure was crossed out and $28,942 written in its place. The application was accepted by CLIC, and the policy was delivered in November 1996.
On December 17, 1996, Antonio was murdered in Little Rock. Appellee notified CLIC of Antonio’s death, and CLIC reviewed the claim. In doing so, it discovered that Antonio’s death certificate listed his occupation as a laborer, which did not correspond to the representation on the application that Antonio was a dependent and a full-time student. CLIC sent an investigator to obtain a statement from appellee, and she told him, among other things, that she had not told the enroller that Antonio was a full-time student.
At about the same time that the investigation was taking place, CLIC sent a questionnaire to James Foster of Aon, whose name had appeared on the application as the witnessing agent. In his answers, Foster represented that he had taken the application from appellee, that appellee had answered the questions on the application, and that the answers were accurately recorded. At one point, the questionnaire asked: “Did [appellee] tell you Antonio Robinson was a full time student?” Foster did not respond to that question. It would later be revealed that Foster had never been to Little Rock, had not taken appellee’s application, and did not know who did. He denied ever having seen the questionnaire sent by CLIC. It would also later be revealed, through the testimony of a forensic expert, that the handwriting on the words “full time student” could not be matched to appellee and was inconsistent with the writing on the remainder of Antonio’s application and the other applications, giving rise to the implication that the words “full time student” were placed on the application by someone other than appellee or the enroller.
Following its investigation, CLIC decided to rescind the policy, despite several factors pointing to a lack of any misrepresentation by appellee, including her insistence that she had not identified Antonio as a full-time student; Foster’s failure to answer the crucial question of whether appellee told him that Antonio was a full-time student; the lack of any requirement in the CLIC manual that the insured be a full-time student; and a CLIC representative’s realization that the words “full time student” were in different handwriting from the rest of the application. There after, appellee sued CLIC and Aon and obtained the aforementioned jury verdict against CLIC for bad faith and outrage and Aon for deceit and outrage. The jury awarded $1 million in punitive damages against CLIC; $1 million in punitive damages against Aon; and $120,000 in compensatory damages, which, although it was apportioned fifty percent to CLIC and fifty percent to Aon, was not broken down by cause of action.
On appeal in Mickles I, we affirmed the verdict against CLIC. We also determined that there was substantial evidence to support the deceit and outrage verdicts against Aon. However, we concluded that the trial court gave an erroneous jury instruction on the deceit count (which count was solely against Aon), and, because erroneous instructions are presumed to be prejudicial, we were required to reverse and remand the verdict against Aon. Further, because the jury’s verdict did not state what portion of the monetary award against Aon was attributable to outrage and what was attributable to deceit, we reversed the verdict against Aon in its entirety. Several months after our decision, CLIC entered a satisfaction of judgment in favor of appellee for $1,060,000 plus interest and costs.
On re-trial against Aon in May 2005, appellee based her cause of action for deceit on the theory that she had relied to her detriment on Aon’s false representation that the policy would provide double indemnity in the event of Antonio’s accidental death. The jury found in favor of appellee on her deceit cause of action and awarded her $58,884, which was approximately twice the policy’s face amount of $28,942. The trial judge deducted from that amount $28,942 that CLIC had previously tendered to appellee, leaving appellee with a final compensatory judgment of $29,942. The trial court declined Aon’s request to further reduce the compensatory verdict by $60,000, paid by CLIC as part of its satisfaction of judgment. Finally, the court refused Aon’s motion for a remittitur of the $2 million punitive-damages award or, alternatively, a new trial. This appeal followed.
Was The Deceit Verdict Supported By Substantial Evidence?
At the trial level, Aon moved for a directed verdict and a judgment notwithstanding the verdict (JNOV) on the ground that appellee had not produced sufficient evidence to support her cause of action for deceit. The standard of review for denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). A motion for a JNOV is technically only a renewal of the motion for a directed verdict made at the close of the evidence; a trial court may enter a JNOV only if there is no substantial evidence to support the jury verdict, and the moving party is entitled to judgment as a matter of law. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000).
The essential elements of an action for deceit are: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance on the representation; (5) damage suffered as a result of the reliance. Mickles I, supra. Aon contends that appellee’s proof was lacking on each of these elements. Appellee responds that she proved the elements of deceit and, in any event, our statement in Mickles I that there was substantial evidence to support the deceit count is now law of the case.
We do not decide the question of whether our statement in Mickles I constitutes the law of the case because we have determined that the proof presented by appellee in the present trial (which, we note, differed in no significant respects from the proof she presented at the first trial) constitutes substantial evidence of deceit. We view the evidence in the light most favorable to appellee, giving it its highest probative value and taking into account all reasonable inferences deducible from it. See Mangrum v. Pigue, 359 Ark. 373, 198 S.W.3d 496 (2004). Applying that standard, we observe that appellee presented evidence from which it could reasonably be inferred that the Aon enroller, in representing that the policy would provide double indemnity, made a false statement of a material fact concerning the amount of coverage that appellee was purchasing; that the enroller had insufficient evidence upon which to represent the existence of double indemnity and, given the enroller’s other misstatements as to his identity and Antonio’s qualifications for coverage, may have deliberately misrepresented the existence of double indemnity; that, in light of the enroller’s objective to sell appellee a policy, it would follow that he intended for appellee to rely on his representations concerning the amount of coverage; that appellee, a minimum-wage worker with no specialized education or skills, justifiably relied on statements by insurance representatives concerning a matter as important as the amount of insurance coverage, see generally Manhattan Credit Co. v. Burns, 230 Ark. 418, 323 S.W.2d 206 (1959) (stating that reliance is to be presumed when the misrepresentation goes to a material matter); and that appellee was damaged because she received only the face amount of the policy from CLIC rather than the double-indemnity amount. In light of these factors, we believe that the jury’s verdict is supported by substantial evidence and that the trial court did not err in denying Aon’s motion for a directed verdict or a JNOV.
Should The Trial Court Have Deducted $60,000 From The Verdict?
The satisfaction of judgment entered by CLIC following the first trial consisted of a base amount of $1,060,000, which encompassed the $1 million in punitive damages awarded against CLIC, plus fifty percent, or $60,000, of the compensatory damages awarded in the first trial. Aon contends that, because it and CLIC were joint tortfeasors, any satisfaction of judgment paid by CLIC should be credited to any subsequent award obtained against Aon. Thus, following the jury’s verdict against Aon in the second trial, it asked that such verdict be reduced by $60,000. The trial court refused to do so.
Arkansas’s Uniform Contribution Among Tortfeasors Act provides that recovery of judgment from one joint tortfeasor does not discharge the other joint tortfeasor. Ark. Code Ann. § 16-61-203 (Repl. 2005). However, where a.plaintiff obtains a judgment or release from one joint tortfeasor and later obtains a judgment against another joint tortfeasor, the plaintiffs first satisfaction must be credited against any subsequent recovery. See Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971); Smith v. Tipps Eng’g, 231 Ark. 952, 333 S.W.2d 483 (1960). Procedurally, where, as in the present case, the jury has no knowledge of the prior recovery, the trial court must credit the prior recovery after the verdict is returned. See Woodard v. Holliday, 235 Ark. 744, 361 S.W.2d 744 (1962); Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962).
Aon’s argument would persuade but for the fact that, under the peculiar facts of this case, we cannot conclude that Aon and CLIC were joint tortfeasors. The Contribution Among Tortfea-sors Act defines a joint tortfeasor as follows:
For the purpose of this subchapter the term “joint tortfeasors” means two (2) or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against ail or some of them.
Ark. Code Ann. § 16-61-201 (Repl. 2005). In the present case we are unable to determine with any level of certainty that CLIC and Aon have been held hable for the same injury.
In the first trial, the jury rendered a verdict against CLIC for bad faith and outrage, and a verdict against Aon for deceit and outrage. However, only one recovery was awarded, for $120,000; the amount attributable to each cause of action is not known. Additionally, the jury in the first trial, as did the jury in the second trial, found Aon liable for deceit, a cause of action peculiar to Aon and not shared by CLIC. We thus have a situation in which appellee obtained a judgment against Aon on a distinct tort for which no recovery was had against CLIC. More importantly, we have a situation in which we cannot tell whether the damages awarded against CLIC and the damages awarded against Aon compensate appellee for the “same injury to person or property.” The injury for which appellee has now recovered — the amount of double indemnity on the insurance policy — is economic in nature, while it is entirely possible that the injury for which she recovered from CLIC is for mental anguish, emotional distress, or the like. See Mickles I (recognizing, in discussing appellee’s outrage claim, that there was evidence that she suffered extreme distress and further recognizing that the jury’s bad-faith verdict against CLIC was supported by much of the same evidence that supported the outrage claim); see also Growth Props. I v. Cannon, 282 Ark. 472, 669 S.W.2d 447 (1984) (holding that the essence of the tort of outrage is injury to the plaintiffs emotional well-being); Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1974) (recognizing, in a bad-faith action, that the plaintiff had suffered from anxiety as the result of the insurer’s conduct); Howard Brill Law of Damages, § 4-7 (5th ed. 2004) (stating that mental-anguish damages have been awarded in outrage and bad-faith cases).
Based on the foregoing, we simply cannot conclude, as a matter of law, that the $60,000 that appellee recovered from CLIC corresponds to the same injury for which she recovered from Aon. Thus, for the purposes of this issue, CLIC and Aon were not joint tortfeasors, and the trial judge was correct in refusing to credit the $60,000 paid by CLIC. We therefore affirm the compensatory verdict of $29,942.
May Punitive Damages Be Awarded in the Absence of a Compensatory Judgment?
Aon argues that, if CLIC’s payment of $60,000 is deducted from the jury’s compensatory award, a zero verdict results, and, therefore, no judgment exists to support an award of punitive damages. See generally Hudson v. Cook, 82 Ark. App. 246, 105 S.W.3d 821 (2003) (recognizing that in the absence of an award for compensatory damages, punitive damages are barred). This issue is rendered moot by our previous discussion upholding the compensatory award of $29,942.
Should The Punitive-Damage Award Be Reduced?
We follow a two-step analysis in determining whether a punitive-damages award is excessive. See Hudson v. Cook, supra; Howard Brill Law of Damages, § 9-6 (5th ed. 2004). First, we determine whether the award was excessive under state law. This entails an analysis of whether the jury’s verdict is so great as to shock the conscience of the court or demonstrate passion or prejudice on the part of the jury. See Hudson v. Cook, supra. It also involves consideration of the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. See id.
The second step is to evaluate the award under the federal due-process analysis set forth in BMW of NorthAmerica v. Gore, 517 U.S. 559 (1996). Here, we determine the degree of reprehensibility of the defendant’s conduct; the disparity between the harm or potential harm suffered by the plaintiff and the punitive-damages award (which ordinarily involves consideration of the ratio be tween the compensatory and punitive awards); and the difference between this remedy and the civil penalties authorized by statute or imposed in comparable cases. See Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003). In assessing the degree of reprehensibility, we may consider whether the harm caused was physical as opposed to economic; whether the conduct evinced an indifference to or reckless disregard of the health and safety of others; whether the target of the conduct had financial vulnerability; whether the conduct involved repeated actions or was an isolated incident; and whether the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003). Campbell also held that, while the United States Supreme Court would not impose a bright-line ratio of punitive to compensatory damages, in practice, few awards exceeding a single-digit ratio will satisfy due process. In addition, our supreme court has stated that, in reviewing a punitive-to-compensatory ratio, we should determine whether the ratio is “breathtaking.” Union Pac. R.R. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004). Our standard of review is de novo. Id.
Employing our de novo review, we have given careful consideration to all of the applicable factors mentioned. Overall, we have little difficulty sustaining a substantial punitive award against Aon. Its conduct in this case, which we may consider in total, see Superior Federal Bank v. Jones & Mackey Constr. Co, 93 Ark. App. 317, 219 S.W.3d 643 (2005), was highly reprehensible in its dishonesty and outright fraud, particularly in light of appellee’s financial vulnerability. However, we are troubled by the ratio of the punitive award to the compensatory award, which, when measured against the jury’s initial verdict of $58,884, is approximately 34-to-l and, when measured against the final judgment of $29,942, is approximately 66-to-l. Further, in reviewing several of our most recent cases decided since the Campbell opinion involving punitive damages imposed in connection with economic injury, we observe that the punitive-to-compensatory ratios have generally run between 1-to-l and 17-to-l. See, e.g., Stewart Title v. Am. Abstract, 363 Ark. 530, 215 S.W.3d 596 (2005); Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.3d 672 (2003); Hudson v. Cook, supra; Superior Federal Bank v. Jones & Mackey Constr., supra. We therefore believe that due process would best be served in this case by a reduction of the punitive award to $750,000. This figure yields a ratio of approximately 12-to-l when compared with the jury’s original verdict and approximately 25-to-l when compared to the final judgment, and is more in line with the ratios in our recent, comparable cases.
As we stated in Superior Federal Bank v. Jones & Mackey Constr., supra, our review of a punitive-damage award is not an exact science but a fluid analysis based on the particular facts of each case. While we believe that Aon’s conduct in this case justifies the imposition of an award that exceeds the single-digit rule expressed in State Farm v. Campbell, supra, we likewise believe that the circumstances of the case as a whole require a reduction of the award to a less breath-taking ratio of approximately 25-to-l or less.
Therefore, if, within eighteen days, appellee remits $1.25 million of the punitive-damage award, leaving a punitive award of $750,000, the judgment will be affirmed. Otherwise, the case will be reversed, and the cause will be remanded for a new trial. See Advocat v. Sauer, supra.
Affirmed as modified on condition of remittitur.
Neal and Crabtree, JJ., agree.
Our supreme court denied Aon’s motion to certify and transfer this case.
We also reject Aon’s argument that appellee’s recovery against CLIC, as principal, bars her recovery from Aon, its agent. Aon cites Barnett v. Isabell, 282 Ark. 88, 666 S.W2d 393 (1984), for its holding that, where the liability of an employer for acts of an employee is wholly derivative, a judgment against the employer and satisfaction thereof bars further proceedings on the same tortious act. Again, in light of the unusual circumstances of this case, we are unable to say that CLIC’s liability to appellee was “wholly derivative,” given that it was directly liable for bad faith and that there is no way to determine, with any level of certainty, whether the jury considered CLIC vicariously Hable for Aon’s deceit.
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John Mauzy Pittman, Chief Judge.
The Division of Children and Family Services found that appellee, assistant principal at Berryville Elementary School, committed child maltreatment when she caused bruises on D.B. while disciplining him. Appellee requested an administrative hearing. The administrative law judge found that appellee committed child maltreatment while disciplining D.B. and ordered that appellee’s name be placed on the Central Registry of Child Abusers. Appellee then sought judicial review. After reviewing the record, the circuit court found that the administrative law judge’s opinion was not supported by substantial evidence and ordered that appellee’s name be stricken from the Central Registry. The Arkansas Department of Human Services brought the present appeal seeking reinstatement of the administrative decision. The Department argues that there is substantial evidence to support the administrative law judge’s findings that appellee committed child maltreatment. We disagree.
A decision by the Department of Human Services is governed by the Administrative Procedure Act, Ark. Code Ann. § 25-15-212 (Supp. 2005). The appellate court’s review is directed not toward the circuit court, but instead toward the decision of the agency. Batiste v. Arkansas Department of Human Services, 361 Ark. 46, 204 S.W.3d 521 (2005). Review of administrative decisions is limited in scope; the agency’s decision will be upheld if there is any substantial evidence to support it. Id.; Teston v. Arkansas State Board of Chiropractic Examiners, 361 Ark. 300, 206 S.W.3d 796 (2005). Substantial evidence is evidence that is valid, legal, and persuasive and that a reasonable mind might accept to support a conclusion and force the mind to pass beyond speculation and conjecture. Arkansas Board of Examiners v. Carlson, 334 Ark. 614, 976 S.W.2d 934 (1998). The question is not whether the testimony would have supported a contrary finding, but whether it would support the finding that was made. Id. It is the prerogative of the board to believe or disbelieve any witness and to decide what weight to accord the evidence. Id.
At the hearing, held on January 25, 2005, it was uncontested that D.B. had been disciplined for fighting at school; that D.B.’s parents were given the choice of a three-day suspension or corporal punishment; that the parents opted for corporal punishment; that the punishment consisted of spanking with a paddle approximately two and one-half inches wide and two feet in length; that both of the parents were present when the punishment was administered, as was school administrator Matt Summers; that D.B. was wearing jeans during the punishment; that the punishment consisted of three swats with the paddle; that none of the witnesses told appellee to stop or that she was hitting D.B. too hard; that D.B. did not cry out during the punishment; that D.B. expressed no pain to anyone; that D.B.’s mother disagreed with the concept of corporal punishment; that D.B.’s mother photographed D.B.’s buttocks several times approximately ninety minutes after the paddling; that the photographs showed some bruising; that D.B.’s mother took D.B. to a physician for examination two days later; and that the physician was of the opinion that the bruises did not suggest child abuse.
Pursuant to Arkansas Code Annotated § 12-12-503(2)(a)(v) (Repl. 2003), “abuse” includes infliction of a nonaccidental physical injury by any person who is entrusted with the juvenile’s care by a parent, guardian, custodian, or foster parent, including an agent or employee of a public or private school. However, the School Discipline Act authorizes every teacher to hold every pupil strictly accountable for any disorderly conduct in school or on the playground of the school, and provides that any teacher or school administrator in a school district that authorizes use of corporal punishment in the district’s written student discipline policy may use corporal punishment against any pupil in order to maintain discipline and order within the public schools, provided only that the punishment is administered in accord with the district’s written student discipline policy. Ark. Code Ann. § 6-18-505(b) and (c)(1) (Repl. 1999). A school district discipline policy authorizing the use of corporal punishment must include provisions for administration of the punishment, including that it be administered only for cause, be reasonable, follow warnings that the misbehavior will not be tolerated, and be administered by a teacher or a school administrator and only in the presence of a school administrator or his designee. Ark. Code Ann. § 6-18-503(b)(l) (Repl. 1999).
The disciplinary policy in effect in the Berryville Elementary-School when D.B. was disciplined authorized reasonable corporal punishment of unruly students with the caveat that such punishment should be administered with extreme care and caution. The administrative law judge’s finding that appellee abused D.B. was based solely on his finding that the punishment she administered was not reasonable or exercised with extreme care and caution. That finding, in turn, was expressly founded on the following reasoning:
The punishment administered by the petitioner was not reasonable, because it was not administered with extreme care and caution. The lack of care and caution is evidenced by D.B.’s injuries. The injuries sustained as a result of the discipline are excessive. D.B. sustained [a] very large and very intensely red bruise on his right buttock and a smaller red bruise on the left buttock. Due to their size, these bruises were more than mere minor marks.
Based on our review of the record, including the photographs, we conclude that the circuit court correctly reversed the agency’s determination of abuse. It is true that photographs taken less than two hours after the paddling display bruising that is clearly visible. However, we have held that evidence of bruising, standing alone, cannot be used as a legal litmus test for abuse to the exclusion of all other attendant circumstances. Arkansas Department of Human Services v. Caldwell, 39 Ark. App. 14, 832 S.W.2d 510 (1992). Here, the punishment was approved by the child’s parents and was conducted according to the procedures set out in the school handbook in the presence of both of the child’s parents and a school administrator. The child, a 90-pound boy, was given three swats with a paddle by the 110-pound teacher. The boy did not cry out, no one complained or attempted to stop the punishment, and the child returned to class immediately afterward without complaint or incident. We are especially impressed with the evidence that the physician who examined D.B. two days afterward was of the opinion that the marks still visible were not indicative of abuse and, above all, by D.B.’s candid testimony at the hearing that:
Last April, I got in trouble at school. Ms. Holman spanked me. When she spanked me, I just felt a sting. It hurt a couple of minutes afterwards but that’s all.
Finally, we note that appellant relies on several other items of testimony that, if found to be true by the agency, might arguably have supported its decision. However, courts may not accept the appellate counsel’s post hoc rationalizations for an agency action; an agency’s action must be upheld on a basis articulated by the agency itself.
Circuit court affirmed; agency decision reversed.
Gladwin and Glover, JJ., agree. | [
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Josephine Linker Hart, Judge.
A jury awarded appellee, Sue Walker, $2,700 in damages for medical expenses incurred after Walker, a passenger in a pick-up truck, was injured when the truck was struck in the rear by a car driven by appellant, Bonnie K. Williams. On appeal, appellant contends that the trial court erred in allowing appellee to present evidence of $2,934.60 in medical expenses because appellee did not lay an adequate foundation for the admission of her medical bills by presenting testimony from a physician or other medical expert establishing both the reasonableness and necessity of the medical expenses. We affirm.
Appellee testified that the rear impact caused injury to her back and also caused her ear to hit the side window. She was taken by ambulance to Helena Regional Medical Center where she was examined by a physician. X-rays were taken of her head and back, and she was given a shot for pain. After leaving the hospital, she continued to have pain in her neck and back. The next day, she went to see her family physician, who examined her head, back, and neck. The doctor took more x-rays, prescribed medication, and referred her to a third doctor, whom she saw the same day for physical therapy. Based on the doctor’s advice, she continued to see him for physical therapy two to three times a week for two or three months afterwards. That doctor referred her to a doctor in Litde Rock because she was having trouble with her head and ear. She was treated at an orthopedic clinic and University Hospital and again received x-rays and was given drops for her ear. She was also referred to a physician in Memphis, who read her x-rays. At trial, she introduced into evidence hospital, physician, and pharmacy bills totaling $2,943.60 that she testified were related to the accident.
Appellant argues that the trial court erred by allowing appellee to introduce into evidence the medical bills because appellee did not lay an adequate foundation for the admission of her medical bills by presenting testimony from a physician or other medical expert establishing that the medical expenses were for treatment of injuries sustained in the accident and that the treatment and the expenses were both reasonable and necessary. This issue has been addressed by the appellate courts in this state on several occasions. In one recent opinion, the Arkansas Supreme Court stated that a person seeking recovery of medical expenses has the burden of proving the reasonableness and necessity of the expenses. Avery v. Ward, 326 Ark. 829, 833, 934 S.W.2d 516, 519 (1996). In Avery, the court, quoting with approval an earlier supreme court decision, stated that while the testimony of an injured party can provide a sufficient foundation for the introduction of medical expenses incurred, expert testimony would normally be required in certain circumstances. Those circumstances included instances where expenses were incurred for medical procedures performed months after the accident, where there is no indication that the patient was referred by an initial attending physician, and where the expenses do not appear to be related to the accident.
Though not cited by the parties and not discussed in Avery, we conclude that this issue is controlled by statute. Specifically, the statute provides as follow:
(a) Upon the trial of any civil case involving injury, disease, or disability, the patient, a member of his family, or any other person responsible for the care of the patient shall be a competent witness to identify doctor bills, hospital bills, ambulance service bills, drug bills, and similar bills for expenses incurred in the treatment of the patient upon a showing by the witness that such bills were received from a licensed practicing physician, hospital, ambulance service, pharmacy, drug store, or supplier of therapeutic or orthopedic devices, and that such expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial.
(b) Such items of evidence need not be identified by the person who submits the bill, and it shall not be necessary for an expert witness to testify that the charges were reasonable and necessary.
Ark. Code Ann. § 16-46-107 (Repl. 1999). The statute provides that if a patient shows that she received medical bills from a provider of medical services and that such expenses were incurred in connection with the treatment of the injury that is the subject of the litigation, then she is considered a competent witness to identify the medical bills. Further, testimony from an expert witness regarding the reasonableness and necessity of medical expenses is not required.
In applying this statute to the facts presented here, we note that appellee, who was the patient, testified that she received the bills from providers of medical services and that the expenses were incurred as a result of the accident. Because appellee’s testimony mirrored the statutory requirements, she was competent to testify regarding the medical expenses. Further, expert testimony was not required to establish that the charges were reasonable and necessary. The Arkansas Supreme Court has stated that it is within the trial judge’s discretion to decide whether an injured party has laid a sufficient foundation to testify about the amount of certain medical expenditures. Blissett v. Frisby, 249 Ark. 235, 247-48, 458 SW.2d 735, 742 (1970). Given the evidence presented here, we cannot conclude that the trial court abused its discretion in permitting appellee to testify regarding the medical bills or in admitting them into evidence, as appellee’s testimony met the requirements of the statute.
Affirmed.
Robbins and Baker, JJ., agree. | [
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Wendell L. Griffen, Judge.
Appellant Audrey Wrightsell challenges a Lonoke County chancellor’s order that granted appellant a constructive trust in a one-tenth interest in property that Wrightsell deeded to her brother, appel-lee Lott Johnson. As her sole point on appeal, appellant contends that the chancellor erred by not imposing a constructive trust on two-thirds of seventy-nine acres acquired by appellee pursuant to an agreement between the parties. We hold that the chancellor’s ruling is inconsistent with his findings. Thus, we reverse and remand.
Factual and Procedural History
The parties, along with their eight sisters, acquired 159 acres of land located in Lonoke County, Arkansas, from their parents. Afterward, six of the siblings deeded their interests to Larry Atkinson and Steve Smith, while the remaining four, including appellant, retained their interests.
In 1998, a petition to partition the 159-acre parcel was filed by Atkinson and Smith, owners of the six-tenths interest, against the owners of the four-tenths interest. Subsequently, appellant and her sister, Freddie Perkins, deeded their fractional interests to appellee, who arranged a settlement of the partition petition and received seventy-nine acres of land solely in his name. Appellee procured settlement funds with a mortgage on the seventy-nine acres, and paid another sister, Pearl Johnson, $15,000 out of the funds.
The present parties then became embroiled in a dispute regarding ownership of the seventy-nine acres. Appellant alleged that she and Freddie Perkins only deeded their interest to appellee to allow him to obtain a loan and use the loan money to settle the 1998 partition petition. She claimed that appellee agreed to subsequently re-deed the seventy-nine acres in order for appellant, Perkins, and appellee to share the property jointly and equally.
Appellant filed a cause of action in Lonoke County Chancery Court, alleging that appellee falsely and fraudulently represented and promised appellant that if she signed a deed of her property to him, he would use the deed to purchase other property and then reissue a deed, naming appellant and appellee as co-tenants. She requested that the court order appellee to cancel the deed or order appellee to add her name to the deed. Appellant’s sister, Freddie Perkins, did not join her cause of action. Appellee responded that the conveyance represented a gift. On October 31, 2000, and November 28, 2000, the chancellor heard testimony on the matter.
Garland Johnson Shy testified that after her parents left their ten children 159 acres of property in Lonoke County, six of the children, including Ms. Shy, wanted to sell the land and four did not wish to sell. The property was originally separated into two tracts, with one eighty-acre tract consisting of wooded area and another seventy-nine-acre tract that could be leased for farmland or flooded to attract waterfowl and hunting. Ms. Shy found two hunters, Larry Atkinson and Steve Smith, who agreed to purchase a six-tenths interest in the 159 acres. Ms. Shy testified that she handled the sale in 1997 and that each of the six children who favored selling received $14,500 for each of their interests. Atkinson and Smith later filed a partition suit and wanted Shy to persuade her other four siblings to selling their four-tenths interest. Shy testified that the four remained adamant about not selling, and that appellant did not want to sell or gift her interest, but wanted the property to remain in the family. Shy also testified that appellant trusted appellee.
Appellee testified that he acquired a deed from his two sisters on June 20, 1998. He corroborated Ms. Shy’s testimony that appellant wanted to keep the property in the family, and testified that appellant gave him the quitclaim deed of her interest in the property to keep it in the family. He testified that he contacted appellant about repairing a pump on the irrigation well on the property, and that appellant gave him a check after she had already deeded and given him the property. Appellee testified that after he acquired the interest of Pearl Johnson, Freddie Perkins and appellant, he obtained a loan secured by a mortgage on the property. He then settled the partition suit by paying $14,500 jointly to Atkinson and Smith, the owners of the sixth-tenths interest, and by relinquishing an undivided four-tenths interest in the eighty-acre tract. In return, Atkinson and Smith conveyed their undivided six-tenths interest in the seventy-nine-acre-open tract to appellee. Appellee also paid $15,000 to his sister Pearl Johnson, and gave appellant and Freddie Perkins $1,030 each.
Upon redirect examination, Garland Shy testified that when appellant was approached about selling the entire 159-acre parcel, she would not sell, and that her other sisters were not willing to deed their property to appellee in order for him to secure a loan to purchase the property. She testified that Freddie Perkins chose not to sell the land because she wanted it to stay in the family. Shy stated that Ms. Perkins did not give her interest to appellee because Perkins was on disability and was unable to give anything away due to her medical and financial condition. Shy again relayed that Ms. Perkins and appellant deeded their interest to appellee so that appellee could get a loan to purchase other property from the owners of the sixth-tenths interest.
Appellant testified that she lived in Chicago and that she and her sister (Perkins) quitclaimed their interests to appellee because he had to have a certain amount in order to secure the loan. She stated that appellee told her and Perkins that if the three of them went in together, everything would be split four ways to include their sister Pearl. She testified that the quit claim deed was not a gift. Appellant stated that appellee wanted the deed in order to have collateral and to sue Atkinson and Smith because the land was wrongfully sold. She stated that her father’s will provided that the property had to be offered to each brother and sister before it could be sold to an outside person. Appellant testified that after appellee secured a loan, appellee bought Steve Smith’s and Larry Atkinson’s interests. Appellee then borrowed $4,000 more and gave appellant and Freddie Perkins $1,030. She testified that the only way that she and her brother could buy the seventy-nine-acre tract was to put their interests together and borrow the money in order to have enough collateral to buy the property back. Appellant testified that she never talked with appellee about giving him a gift and that she and her sister never received anything for the property. She testified that the sole purpose of the transaction was to get the property and to keep it in the family. Appellant stated that she and her sister paid appellee money to retain an attorney. In addition, appellant testified that she gave appellee $200 in 1999 for work on a pump after the quitclaim transaction (between herself and appellee) because she was under the impression that she still owned an interest in the property. She also gave appellee $100 for a levee. Appellant testified that she and her brother had a verbal agreement, and that he kept her informed of the transactions relating to the partition suit and the settlement negotiations with Atkinson and Smith. However, appellant testified that after she gave notice to her brother to add her name to the deed, he refused to do so.
Following the hearing, the chancellor found 1) that appellant did not meet her burden of proving that appellee fraudulently and deceitfully acquired appellant’s interest in the property, 2) that appellant did not intend to convey a gift to appellee, 3) that appellant and appellee had a confidential and trusting relationship, 4) that appellant relied heavily on appellee’s knowledge and expertise, and 5) that appellee was unjustly enriched in his dealings with appellant. The chancellor then imposed a constructive trust in favor of appellant of a 1/10 interest in the property she conveyed to appellee. The chancellor determined the value of the property at the time of the conveyance at $15,000. He then imposed a constructive trust on appellee’s property in the amount of $15,000 and ordered that the trust be secured by an equitable lien.
Analysis
As her sole point on appeal, appellant contends that the chancellor erred and made a mistake by not imposing a constructive trust on two-thirds of the seventy-nine acres acquired by appellee, when the evidence clearly demonstrated that the parties had an agreement that the seventy-nine acres would be shared equally among appellant, appellee, and their sister Freddie Perkins. Although we agree with the chancellor’s decision to impose a constructive trust, we hold that the chancellor clearly erred in decreeing that appellant was entitled to only a one-tenth interest in the seventy-nine-acre tract that appellee acquired after she quit-claimed her one-tenth interest in the 159-acre parcel to him so he could settle the petition suit with Atkinson and Smith.
Constructive trusts are implied trusts that arise by operation of law when equity so dictates. See Hall v. Superior Fed. Bank, 303 Ark. 125, 794 S.W.2d 611 (1990). These trusts are imposed against a person who secures a legal title by violating a confidential relationship or fiduciary duty, or who intentionally makes a false oral promise to hold legal title for a specific purpose and after having acquired the title, claims the property for himself. See Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981). Constructive trusts are remedial and are imposed to prevent situations of unjust enrichment when the circumstances demonstrate that an individual has an equitable duty to convey title of the disputed property to another because of a determination that the beneficial interest should not accompany the legal title and that the person would be unduly enriched if he were allowed to retain the property. See Betts v. Betts, 326 Ark. 544, 932 S.W.2d 336 (1996).
In Nichols v. Wray, 325 Ark. 326, 952 S.W.2d 785 (1996), our supreme court set out the following guidelines for appellate review of a chancellor’s decision regarding a constructive trust:
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 evaluate 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.
Id. at 333, 925 S.W.2d at 789 (citations omitted).
In the present case, appellant’s complaint sought a one-half interest in the property she alleged that appellee acquired as a result of his false representations. At the conclusion of the hearing, the chancellor found that appellant did not meet her burden of demonstrating that appellee acquired appellant’s interest by fraud or deceit. The chancellor also found that appellant did not intend her one-tenth interest (in the 159-acre tract that she originally conveyed) to be a gift to appellee.
However, the pleadings, the argument presented at trial, and the proof do not support the decree of a constructive trust equal to a one-tenth interest in the property appellant conveyed to appellee. That decree cannot stand because appellant’s one-tenth interest in the 159-acre parcel was sold by appellee in the transaction with Atkinson and Smith. The transaction resulted in appellee receiving the seventy-nine-acre tract that he plainly was able to acquire only with help from appellant and their other sister (Pearl Johnson). While we agree with the chancellor that appellant did not prove her allegation that appellee obtained the quitclaim deed to her one-tenth interest in the 159-acre tract by fraud, it is equally clear that the chancellor did not err by finding that the quitclaim deed from appellant to appellee was not a gift. As such, the decision to impose a constructive trust was not clearly erroneous.
On appellate review, however, we are unable to determine the basis for the chancellor’s decision that appellant is entitled to a one-tenth interest in the seventy-nine-acre tract that appellee obtained with her help. Whatever else may be disputed, it appears clear on our de novo review that appellant’s contribution of her one-tenth interest in the 159-acre family parcel was equal to what appellee contributed. However, appellee also obtained financing to acquire the seventy-nine-acre tract in the settlement with Atkinson and Smith by borrowing funds in his own name. Even after appellant had relinquished her one-tenth interest in the larger parcel, appellee obtained funds from her for expenses related to the property he ultimately secured. In view of these facts, it is not clear why the chancellor did not grant her prayer to be added to the deed to the seventy-nine-acre tract, subject to appellant joining appellee on the mortgage. Thus, further proceedings are needed to allow the chancellor to fashion relief consistent with the constructive trust determination, yet more representative of appellant’s contribution to the seventy-nine-acre tract now held by appellee in his own name. Because the chancellor’s findings are inconsistent with the relief granted, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Hart, Robbins, and Neal, JJ., agree.
Stroud, C.J., and Roaf, J., dissent.
The property is described as follows:
South half of the Southwest Quarter of Section 13, Township Two South, Range Seven West (S h SW 1/4, T-2-S, R-7-W) Lonoke County, Arkansas.
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John Mauzy Pittman, Chief Judge.
Appellants employed appellee as an accountant. After appellants suffered a severe business reverse, appellee sued appellants alleging that he had not been paid approximately $15,000 for accounting services rendered. Appellants counterclaimed, alleging that they sustained damages in excess of $600,000 as a result of the accounting malpractice of appellee. The trial court directed a verdict on the counterclaim, ruling that it was barred by the three-year statute of limitations because the incorrect advice was initially given in January 2000, just over three years before the claim was filed. The correctness of that ruling is the issue to be decided in this appeal.
Professional malpractice actions are governed by the three-year limitations period set out in Ark. Code. Ann. § 16-56-105 (Repl. 2005). In determining whether a directed verdict should have been granted, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for a directed verdict should be granted only if there is no substantial evidence to support ajury verdict. Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Where the evidence is such that fair-minded persons might reach different conclusions, then ajury question is presented, and the directed verdict should be reversed. Mankey v. Wal-Mart Stores, Inc., supra.
Viewing the evidence in the light most favorable to appellants, the record shows that, in January 2000, appellee in his capacity as appellants’ accountant advised appellants to stop collecting sales tax on equipment installed in new construction. The advice was initially rejected because appellants were not convinced that it was correct; was discussed further at subsequent meetings in February and March; and, after considerable disagreement and reluctance, was ultimately accepted and implemented in March 2000. In February 2003 appellants filed their counterclaim alleging appellee committed malpractice by negligently giving them incorrect tax advice. The question on appeal is whether the trial court was correct in ruling that the malpractice counterclaim was barred by the three-year statute of limitations because the incorrect advice was initially given in January 2000, just over three years before the claim was filed. We hold that it erred because fair-minded persons might conclude, on this record, that the statute of limitations did not begin to run until appellants accepted and implemented the advice in March 2000, just under three years before the counterclaim was filed.
Arkansas adheres to the “occurrence rule” in professional malpractice cases, which provides that a cause of action accrues when the last element essential to the cause of action occurs, unless the professional actively conceals the wrongdoing. Ragar v. Brown, 332 Ark. 214, 964 S.W.2d 372 (1998). Here, there was evidence that appellants did not accept the advice until, after some cajoling that extended into March 2000, during which time appellee repeated the advice and urged them to follow it, appellants relented, accepted the advice, and implemented it. Given the evidence that the advice was rejected when initially given in January 2000, was afterward repeatedly urged, and was not accepted until March 2000, we hold that the trial court erred in directing a verdict on this issue.
Reversed and remanded.
Robbins, Bird, and Glover, JJ., agree.
Neal and Baker, JJ., dissent. | [
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Josephine Linker Hart, Judge.
Amanda Yarborough and George Yarborough appeal from an order of the Faulkner County Circuit Court terminating their parental rights to their three minor children, A.Y., J.Y., and S.Y. On appeal, they argue that the trial court erred in finding that there was sufficient clear and convincing evidence to terminate their parental rights. We affirm.
At the hearing on the petition to terminate the Yarbor-oughs’ parental rights, forensic psychologist Dr. Paul DeYoub testified that he conducted psychological evaluations of Amanda Yarborough in 2002 and 2005. The trial court took judicial notice of the December 17, 2002, report, because it had previously been admitted into evidence. Dr. DeYoub stated that in 2002, he diagnosed Amanda with a “personality disorder” and a “mood disorder,” but in 2005 “upgraded” his diagnosis of a “mood disorder” to “bi-polar disorder.” He noted that the combination of a personality disorder and bi-polar disorder are “very resistant to treatment.” Amanda’s I.Q. in both evaluations was tested to be 85, which Dr. DeYoub assessed to be “low average.” He opined that while that level of intelligence allows her to “function,” her home schooling her children was a “terrible idea” because while Amanda could handle the task “academically,” she was “unstable,” and the children would “need time to be away from her.” Dr. DeYoub noted that her mental condition was worse because the environmental stressors — her children, her husband, and the continued DHS involvement — were still present. Further, testing revealed that Amanda perceived her children as being mentally ill, and she was prone to “over-medicate” them. He opined that the children have “become disturbed because she is disturbed.” He also noted a pattern where as her children get older, she “finds reasons to get them out of the house.”
Regarding George, whom Dr. DeYoub noted that he did not evaluate, he expressed uncertainty about whether George was a “stabilizing influence on the family.” While Amanda anticipated reuniting with him, she nonetheless claimed that George was an alcoholic, a methamphetamine addict, and an “abuser.” Amanda acknowledged that one of her older daughters had alleged that George had sexually abused her, but Amanda blamed the daughter for being a “seductive teenager.” Dr. DeYoub noted that since the 2002 evaluation, Amanda had increasingly come to regard “the children as the problem and herself as capable and competent.” He opined that generally Amanda’s situation with respect to her children and husband had gotten “worse,” there was little prospect for improvement, and she was “largely unfit as a parent because of her own . . . mental health problems.” Dr. DeYoub stated that Amanda’s prognosis in 2002 was “poor” and that it was borne out by the persistence of her problems in 2005. Regarding Amanda’s relationship with George, Dr. DeYoub stated that while he was “sure” that the children were “connected to their father,” the “dysfunctional marital relationship” had created a problem for the children.
DHS caseworker Laura Rogers testified that she first became involved with the Yarboroughs’ case in August of 2003 when five-year-old A.Y. was found at a convenience store, unsupervised. That began a case that was closed on July 13, 2004, but subsequently reopened on August 30, 2004, when it was reported that A.Y. had not been enrolled in school. Rogers stated that three separate reports were “found true for environmental neglect” on the family, as well as the educational neglect of A.Y. Despite being ordered by the court not to home school A.Y., Amanda had held the child out of school and had been found in contempt. Rogers noted that when A.Y. and J.Y. were taken into foster care, they were on seven and three psychotropic medications, respectively; but currently A.Y. required only three medications and J.Y. only one. Rogers recalled that the Yarboroughs had received parenting classes, and Amanda was getting counseling. Amanda told her that she moved from Conway to Jonesboro to get away from George, although she indicated that she was planning to move back in with him.
Rogers noted that Amanda seemed disinterested in interacting with her children during the visits, often spending much of the eighty minutes allotted for weekly visits talking on the telephone or with case workers. Rogers opined that Amanda had gotten “worse” since the children were first identified as being “at risk.” Rogers testified that she agreed with Dr. DeYoub’s opinion that Amanda was “largely unfit as a parent.” According to Rogers, since the children had been in foster care, they were “better off.”
Rogers opined that the boys were “more bonded” with George, and S.Y. was “more bonded” with Amanda. Nonetheless, she noted that there was still need for DHS involvement after four years, and the parents were “worse” than they were a year or two earlier. Rogers testified that the Yarboroughs had been provided with parenting classes twice, and subsequent to completing the classes, the children were again taken into DHS custody.
Michelle Whatley, a DHS child-abuse investigator, testified that she investigated the Yarboroughs pursuant to a report of child maltreatment in August 2004. She found the home “filthy,” “unsanitary,” and “unsafe.” She noted that the home was in substantially the same condition when similar complaints were lodged in 2003.
Amanda testified on her own behalf. She stated that she moved to Jonesboro “to get away from my husband, and also to get away from my family.” She stated that she currently lived in a three-bedroom apartment that was being paid for by George. Amanda admitted that she had been in counseling for nine years and that she was currently in counseling in Jonesboro. She stated that she was currently taking three medications for depression. Amanda attributed much of her problems as a parent to George, whom she accused of undermining her attempts to discipline the children. She stated that at times she was afraid of George and that there had been physical altercations in the past.
George testified that he was living in Greenbrier and was currently employed. He admitted that he had been incarcerated for committing domestic battery against Amanda. He testified that the domestic-battery charge arose from an incident when he came home from work and discovered that Amanda was playing computer games, a situation that he encountered “constantly.” He stated that he put a firecracker on her computer and told her that she needed to either cook supper or let him know. According to George, Amanda got angry and grabbed his shirt. The two scuffled and fell. Amanda took two of the children and left. J.Y. did not have a shirt and shoes on, so she left him, and George cooked supper. The police subsequently arrived and arrested him despite the fact that Amanda started the fight. He conceded, however, that he had consumed a ‘ ‘couple of beers” and ‘ ‘had been out in the sun too long” that day. George also admitted to previously being arrested for domestic violence in 2001, although he claimed that he was falsely accused because Amanda hit him with a telephone while he was trying to take it away from her. George stated that it was a “constant problem” to get Amanda to clean the house and wash clothes. George testified that he believed that Amanda “needs to stay in counseling” and become more “motivated” to take care of the house. He also admitted that his drinking accounted for some of the previous problems in his family but claimed he was now a “recovering alcoholic.” George conceded that his relationship with Amanda was “dysfunctional” but stated that he would give up the relationship in order to get his children back. He claimed that he was the parent that took care of the children for the last nine years.
Jaime Moore, Amanda’s twenty-four-year-old daughter, testified that she would be willing to take custody of the three minor children. She stated that she had been inappropriately touched by George when she was thirteen years old. Jaime also claimed that she had been “raped and molested” by friends of her mother’s, beginning when she was seven. She stated that she told her mother about the abuse, but her mother did not always believe her. When George molested her, she left the home. She claimed that although she told Amanda about the molestation, Amanda married George approximately two weeks later. Moore stated that when she lived with Amanda, she was placed on psychotropic medication and was currently taking Zoloft for depression. She stated that her younger sister, Jennifer, was also put on medication. Moore described the condition of her home when she was growing up as “horrible,” and she claimed that she took care of her younger sibling, including changing and feeding her, even though she herself was only five years old. She stated unequivocally that Amanda put her interests ahead of the interests of her children.
In her order terminating the Yarboroughs’ parental rights, the trial judge found “there is little likelihood that services to the family will result in successful reunification” and substantiated her conclusion based on the following specific reasons:
a. there have been multiple prior true reports of child maltreatment of these and older siblings by the parents;
b. there have been multiple prior protective services cases open on the family for environmental and educational neglect;
c. the psychological evaluations by Dr. Paul Deyoub concluded that the parents were chronically unfit and not likely to respond to treatment;
d. that the mother has been in counseling for nine (9) years to no effect;
e. the parents refuse to accept responsibility for their actions;
f. that the previous dependency/neglect case was open for 11 months and had to be reopened one month after it was closed;
g. the long-term history of alcohol and drag abuse; and
h. the pattern of domestic violence between the parents while the children were present.
On appeal, the Yarboroughs argue that the trial court erred in finding that there was sufficient clear and convincing evidence to terminate their parental rights. They contend that there was insufficient evidence that the children were out of their custody for twelve months, that they had failed to rehabilitate the home and correct the condition that caused the removal, and that they subjected the children to aggravated circumstances.
The grounds for termination of parental rights must be proven by clear and convincing evidence. M. T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177 (1997). 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 Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination of parental rights cases de novo. Id.
We note first that DHS has conceded two of the Yarbor-oughs’ subpoints, acknowledging that the children were not out of the home for more than twelve months and declining to challenge whether or not the environmental neglect had been remedied. DHS asserts, and we agree, that the grounds for termination were that the parents have subjected the children to aggravated circumstances. The Yarboroughs’ attempt to characterize this as merely “an additional ground” that was “duplicative to the ground that the parents did not remedy their home nor their parental behavior” is simply mistaken — it was the entire basis for the termination of their parental rights. Accordingly, our focus will be on whether the trial court’s findings relative to this ground are supported by the evidence.
In this case', the trial court terminated the Yarboroughs’ parental rights pursuant to Arkansas Code Annotated section 9-27-341 (b)(3) (A) and (b)(3)(B)(t*)(a)(3) (Repl. 2002). The relevant subsections of the statute provide as follows:
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by continuing contact with the parent, parents, or putative parent or parents;
(B) Of one (1) or more of the following grounds:
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(3) Have subjected the child to aggravated circumstances;
In our juvenile code, “aggravated circumstances” means that “a child has been abandoned, chronically abused, subjected to extreme or repeated cruelty, or sexually abused, or a determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification[.]” Ark. Code Ann. § 9-27-303(6) (Repl. 2002). In the instant case, the trial court focused on the last definition of aggravated circumstances, that there is little likelihood that the services to the family will result in successful reunification. Because it is well-settled law that termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents, and will only be used where it is necessary to prevent the “destruction of the health and well-being of the child,” Johnson v. Arkansas Department of Human Servs., 78 Ark. App. 112, 119, 82 S.W.3d 183, 187 (2002), there must be more than a mere prediction or expectation on the part of the trial court that reunification services will not result in successful reunification. We hold that in this case, there was sufficient evidence that reunification services were unlikely to succeed.
With regard to Amanda, there was considerable expert testimony that she had deep-seated psychological problems, described by Dr. DeYoub as “very resistant to treatment.” These psychological problems prevented Amanda from becoming a fit parent in that they caused her to refuse to accept responsibility for her actions and seek inappropriate treatment for the behavior of her children that Dr. DeYoub believed that she engendered. Moreover, due to the long-term involvement of DHS with the Yarborough family, we have before us a record of repeated failures to remedy the problems that had required DHS involvement with the family. The Yarboroughs twice received parenting classes, yet still exhibited inappropriate parenting. Amanda admitted to receiving counseling for more than nine years; however, in the expert opinion of Dr. DeYoub, Amanda was getting “worse.” Dr. DeYoub’s assessment was shared by caseworker Laura Rogers, who had significant on-going contact with Amanda in the course of her long association with the Yarborough family. Given this long history of failure, we cannot help but conclude that the trial court did not err in finding that “there is little likelihood that services to the family will result in successful reunification.” Ark. Code Ann. § 9-27-303(6).
We are mindful that the trial court’s findings with regard to Amanda do not apply with equal force or validity as to George. George, however, was not represented by separate counsel either at the termination hearing or on appeal, and no argument was made either at the trial-court level or to this court that he should be treated differently. It is axiomatic that we will not make an appellant’s argument for him.
Further, we note that the Yarboroughs fail to effectively challenge most, if not all, of the eight specific findings of fact that the trial court made in support of termination. The one finding that they specifically attack, “that the mother has been in counseling for nine (9) years to no effect,” is challenged by way of an assertion that DHS did not offer “one shred of evidence related to Mrs. Yarborough’s counseling” and is simply not well grounded in fact. Amanda’s counseling was addressed by the testimony of Dr. DeYoub and Laura Rogers, as well as Amanda herself. Nowhere can we find that counseling was judged to be effective. Furthermore, while the Yarboroughs attempt to challenge on appeal Dr. DeYoub’s qualifications to give expert testimony on this issue, we note that his credentials were not challenged at that hearing. Failure to timely raise this argument to the trial court waives this argument on appeal. J. E. Merit Constructors, Inc. v. Cooper, 345 Ark. 136, 44 S.W.3d 336 (2001).
Affirmed.
Crabtree and Glover, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellants Clare Martin, as trastee of the Clare Martin Trust, and Jack Martin, as trustee of the Jack Martin Trust, brought suit seeking a declaratory judgment to determine the validity of certain amendments to restrictive covenants that were adopted by vote of appellees David Shew, Hillary Shew, Ben Melhng, and Susan Melling, owners of two-thirds of the property affected by the covenants. The trial court found that the modified restrictions were valid and enforceable. Appellants raise five points for reversal. We affirm.
The facts are largely undisputed. In March 1999, MMI, Inc., owned a 54.32-acre piece of property and decided to subdivide the property into a subdivision named “Oak Valley Estates.” The property was divided into five ten-acre tracts with metes-and-bounds descriptions. The survey of the subdivision was recorded. Protective covenants and restrictions were adopted but not filed of record for Oak Valley Estates. The covenants covered topics such as the size of residences to be built, set-back lines, and whether mobile or manufactured homes would be allowed. The covenants also provided for amendments to the scheme if approved by two-thirds of the property owners.
In March 2001, MMI revised the survey of Oak Valley Estates whereby Tract 4 was divided between Tract 3 with a combined total acreage of 16.9 acres and Tract 5 with a combined total of 16.41 acres. Onjune 15, 2001, MMI revised the restrictive covenants for Oak Valley Estates by allowing Tract 3 to be subdivided into two eight-acre tracts and Tract 5 to be subdivided into three five-acre tracts. The amended covenants were otherwise unchanged. In July 2001, MMI filed a survey showing Tract 5 divided into three tracts of land — Tract X, Tract XX, and Tract XXX — and provided for a sixty-foot road and utility easement along the eastern boundary of Tract 5. The survey is shown as approved by the Baxter County Planning Board and signed by Boyce Drake, chairman of the planning board.
MMI made the first conveyance when Tract 2 was sold on June 29, 2001. Tract 2 was ultimately conveyed to the Shews on August 15, 2002. Tract 3, as modified by the 2001 amendment, was conveyed to the Shews on August 3, 2001. The Mellings purchased Tract 1 on November 9, 2001. In August 2002, MMI conveyed Tract 5 to appellants by a “correction” deed containing a metes-and-bounds description of Tract 5 and referencing the original 1999 survey. In March 2003, appellees, who constituted the owners of more than two-thirds of the property, amended the covenants to prevent any further subdivision of the tracts.
On October 2, 2003, appellants filed this action for declaratory judgment as to the validity of the March 2003 amendments to the restrictive covenants. Appellants alleged that the 2003 amendments were ineffective because Tract 5 had already been divided. Appellees answered and denied that appellants had the ability, after the 2003 amendments to the restrictive covenants, to divide Tract 5 into three separate lots. At the hearing, the court heard the arguments of counsel as to the effect of each document at issue, but no testimony was presented.
The trial court issued an order in which it found that the original protective covenants and restrictions were ineffective because they had not been filed of record as required by law. The amended covenants filed of record on June 15, 2001, were found to place appellees on notice that Tract 5 was subject to being divided into three parcels. The court concluded, however, that appellants did not divide Tract 5 into three parcels prior to appellees’ filing the amended covenants prohibiting the further division of Tract 5 because there was no sale of the subdivided Tract 5 that made reference to the July 2001 survey showing the division into three lots. A timely notice of appeal followed.
Appellants raise five points for reversal. However, the case essentially turns on one issue: whether there was a division of Tract 5 prior to appellees filing the restrictions to prevent further division in March 2003. All of appellants’ arguments concern various factors to be considered in answering that single question.
In bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous. Schueck v. Burris, 330 Ark. 780, 957 S.W.2d 702 (1997). At issue in this case is interpretation of a protective or restrictive covenant on the use of land. Restrictions upon the use ofland are not favored in the law. Forrest Constr. Co., Inc. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001); Faust v. Little Rock Sch. Dist., 224 Ark. 761, 276 S.W.2d 59 (1955). Further, a restrictive covenant will be strictly construed against limitations on the free use ofland. Forrest, 345 Ark. at 9, 43 S.W.3d at 145; Casebeer v. Beacon Realty, Inc., 248 Ark. 22, 449 S.W.2d 701 (1970). All doubts are resolved in favor of the unfettered use of land. Forrest, 345 Ark. at 9, 43 S.W.3d at 145; Casebeer, 248. Ark. at 25, 449 S.W.2d at 703.
Any restriction on the use ofland must be clearly apparent in the language of the asserted covenant. Forrest, 345 Ark. at 9, 43 S.W.3d at 145; Harbour v. Northwest Land Co., Inc., 284 Ark. 286, 681 S.W.2d 384 (1984). Where the language of the restrictive covenant is clear and unambiguous, application of the restriction will be governed by our general rules of interpretation; that is, the intent of the parties governs as disclosed by the plain language of the restriction. Forrest, 345 Ark. at 9, 43 S.W.3d at 145; Clifford Family Ltd. Liab. Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998) (quoting Barber v. Watson, 330 Ark. 250, 953 S.W.2d 579 (1997)).
Under the facts of this case, we conclude that the trial court did not err in finding that there was no division of Tract 5 prior to the amendment to the restrictive covenants prohibiting further division of Tract 5. There is no dispute that, under thejune 15, 2001, amendments to the restrictive covenants, MMI had the right to divide Tract 5 into three smaller tracts. It is also clear that MMI took steps toward dividing Tract 5 prior to any conveyances. It had a survey done showing Tract 5 divided into three smaller tracts and had it approved by the planning commission and recorded. However, approval of the plat by the planning commission did nothing more than entitle MMI to place the survey of record. Rickman v. Mobbs, 253 Ark. 969, 490 S.W.2d 129 (1973). Without a sale being made with reference to the revised July 2001 plat, Tract 5 remained undivided, and appellants owned the entire tract. See City of Sherwood v. Cook, 315 Ark. 115, 865 S.W.2d 293 (1993).
Appellants argue that the recording of the July 2001 survey was a division of Tract 5 pursuant to Ark. Code Ann. § 14-18-101(a) (Repl. 1998), which provides that “owners ofland lying beyond the confines of municipal corporations, which have not theretofore been subdivided as additions or subdivisions of any city or town, may have their lands surveyed and divided into numbered plots by a competent surveyor, who shall make a plat thereof.” However, the trial court found that, because the 2002 conveyance from MMI to appellants did not convey the property encompassing Tract 5 by reference to the July 2001 survey, the division was never effective. This finding is not clearly erroneous and is supported by Ark. Code Ann. § 14-18-102, which makes the legal description for property platted pursuant to section 14-18-101 the legal description to be used in all instruments relating to the land. The 2002 conveyance only referred to a metes-and-bounds description of Tract 5 (and one-half of Tract 4) from the 1999 survey.
After the conveyance in 2002, appellants took no further action to divide Tract 5 into three smaller tracts. They could have replatted Tract 5 prior to the 2003 amendments. Compare Ingram v. Wirt, 314 Ark. 553, 864 S.W.2d 237 (1993). They were also on notice that the restrictive covenants could be amended by the requisite number of landowners and are, therefore, bound by such later amendments. See Clifford Family Ltd. Liab. Co., 334 Ark. 64, 971 S.W.2d 769. Because there was no effective division of Tract 5 after the conveyance to appellants, the circuit court was not clearly erroneous in declaring that the amendments to the restrictive covenants adopted by appellees were valid and enforceable.
Affirmed.
Gladwin, Grifpen, and Neal, JJ., agree.
Roaf, J., concurs.
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Wendell L. Griffen, Judge.
This is the second appeal in this child-support modification case. Appellant James Huey is the custodial parent of the parties’ daughter, Lauren (d.o.b. 3/2/87). Appellee Sandra Huey (Sheiron) is the noncustodial parent. The procedural history of this case was briefly recited in the previous appeal as follows:
The parties were divorced in December 2001. Appellant is retired and receives social security income for himself and Lauren. He also owns stocks valued at approximately two million dollars. Appellee is a physician with her own family practice. In addition, she owns a chicken farm and numerous stocks. Appellant was initially awarded custody of Lauren, and appellee was ordered to pay child support of $132 per week and to pay an additional $85 per month for one-half of Lauren’s health-and dental-insurance premiums.
See Huey v. Huey, 90 Ark. App. 98, 204 S.W.3d 92 (2005).
After appellee’s request for reconsideration was denied on December 12, 2001, she filed a motion to reduce her child-support obligation and to abate her obligation to pay insurance premiums. Appellant thereafter filed a motion for contempt for appellee’s failure to pay any child support after the entry of the divorce decree and for failure to pay her share of Lauren’s health costs. Appellee was determined to be in contempt for failure to pay these costs as ordered.
In the first appeal, we affirmed the trial court’s findings that a change of circumstances occurred warranting modification of child support, but reversed the trial court’s reduction of child support from $132 per week to $24 per week. We reversed because the trial court failed to consider appellee’s income for the first quarter of2003, as mandated by Administrative Order Number 10 of the Child Support Guidelines. In reversing, we cited to authorities that made it clear the trial court was to consider all sources of appellee’s income.
On remand, the trial court considered appellee’s income and expenses for the first quarter of 2003, concluded that appellee’s medical practice and horse farm operated at a loss during that period, and thus, determined that child support should remain at $24 per week, the minimum allowed pursuant to the Child Support Chart. Appellant again appeals based on the amount of child support awarded.
We affirm that portion of the trial court’s order awarding child support of $24 per week for part of 2002. However, we reverse the trial court’s order of child support and remand for the trial court to enter an award of $135 per week beginning January-2003. We hold that the trial court erroneously concluded that appellee experienced a negative income during the first quarter of 2003 and improperly assessed additional expenditures that had already been accounted for in appellee’s income report.
On remand after the first appeal, the trial court entered “additional findings” in letter form on July 14, 2005, as follows:
I. Findings of Fact
A cartful review of [appellee’s] income and expenses for the first quarter of2003 indicate she continued to suffer a net loss. The “Deposit Detail” exhibit indicates income during that period of $64,500.00. The “Expenses by Vendor Summary” exhibit indicates those expenses to be $39,238.61, after deduction of chemotherapy incurred by the husband of [appellee]. However, the “Payroll Summary” exhibit indicates expenses of $18,160.17, after deduction of chemo-related payments. This amount is not included in the “Expenses by Vendor Summary.” Further, a comparison of those income and expenses with the 2002 income tax return convinces the Court that many other expenses were not included in the “Expenses by Vendor Summary” exhibit. Those include insurance other than health, telephone, utilities, postage and legal and professional services. These items above amounted to $28,000.00 in 2002, one-fourth of which would be $7,000.00. In fact, if the first quarter of [appellee’s] 2003 income and expenses are multiplied by four, there is very little difference from the totals indicated in the 2002 tax return. [Appellee’s] medical practice suffered a loss that year, even after subtracting depreciation.
It is not disputed that [appellee’s] medical practice suffered losses in 2001 and 2002. The Court finds that losses continued through the first quarter of2003.
II.
The 2002 tax return indicates [appellee’s] farm suffered a loss in 2002, even after excluding depreciation. She testified that the farm continued to lose money in 2003, and no evidence to the contrary was submitted.
III.
The evidence submitted does not indicate there is equity in either the medical practice or the farm. [Appellee] is operating on borrowed money and owed approximately eight hundred thousand dollars at the time of the trial.
IV.
The only other asset of [appellee’s] is the Edward Jones account in the amount of ninety thousand dollars. She received several hundred thousand dollars of her portion of marital property. Only $90,000.00 is left and she hopes to use that for retirement. There is no evidence that such account is producing any income.
Conclusions of Law
I.
The Supreme Court’s Administrative Order No. 10 requires this Court to consider every resource available to appellee. It has done so, wA finds no resources with positive values.
(Emphasis added.) These findings were later adopted in a written order dated October 18, 2005, from which appellant now appeals.
Child-support cases are reviewed de novo on the record. Cole v. Cole, 89 Ark. App. 134, 201 S.W.3d 21 (2005). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Id. When the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. Id.
We recognized in the first appeal, and appellant does not dispute, that appellee experienced a negative income during 2001 and 2002. Accordingly, we affirm that portion of the trial court’s order awarding child support of $24 per week from December 6, 2002, through the end of December 2002. However, we reverse that portion of the trial court’s order relating to the child support award for 2003, and remand for the court to order an award of $135 per week beginning the first week of January 2003.
The trial court first erred in determining that appellee continued to suffer a negative income during the first quarter of 2003. In the prior appeal, we expressly recognized appellee’s testimony that her medical practice would experience a loss in 2003 was speculative and contrary to the information regarding her expenses and receipts during the first quarter of 2003. Nonetheless, on remand, the trial court failed to recognized that appellee’s own evidence demonstrates that she had a positive income for the first quarter of 2003.
In determining appellee’s income on remand, the trial court examined appellee’s 2002 tax return and improperly determined that certain expenses that were present on the tax return were not present on appellee’s expense summary for the first quarter of 2003, entitled “Expenses by Vendor Summary.” The Vendor Summary was prepared by appellee for the purpose of obtaining a $600,000 loan from the Portland Bank, and on' its face, included expenses that the trial court stated it did not contain — namely, payroll expenses and nonpayroll expenses, such as telephone services, utilities, postage, and professional services.
The trial court erroneously extrapolated and added approximately $7,000 in additional expenses that were already accounted for in the Vendor Summary report. The effect was to artificially inflate appellee’s expenditures and, as a result, to artificially reduce her income. Once the duplicated expenses are removed from the calculation, appellee’s records clearly demonstrate that her medical practice produced positive income for the first quarter of 2003. Further, common sense dictates that a person does not secure a $600,000 loan based on negative income.
Moreover, we are not inclined to agree with the trial court that the fact that appellee’s horse farm operated at a loss warrants a decrease in child support where she otherwise has positive income from her medical practice. We cannot overlook the fact that appellee’s farm is a voluntary operation on which she expended a substantial amount of money, while at the same time she failed to pay child support, failed to pay her share of the cost of her daughter’s health insurance, and failed to even offer her daughter free medical care in her own clinic. For example, according to appellee’s tax return, in 2002, she spent $43,075 on supplies for her horses and $1,106 on veterinary fees during the same time period in which she asserted that she could not pay child support. We cannot affirm an order that allows discretionary expenditures to circumvent the noncustodial parent’s child-support obligation.
Based on our de novo review of appellee’s proof of her actual income and expenses, and taking into consideration appellant’s concession during oral arguments regarding a calculation error, we determine appellee’s income for the first quarter of 2003 to be $791.32 per week. According to the Child Support Chart, the presumptive amount of weekly child support for that income is $135. Thus, we remand for the trial court to enter an order awarding child support beginning January 2003 in the amount of $135 per week.
Finally, both parties in this case request attorney’s fees and costs. As appellee did not prevail, she is not entitled to attorney’s fees or costs. We agree that appellant should be awarded $1,000 in attorney’s fees for prevailing on this appeal.
Affirmed in part; reversed and remanded in part.
Robbins and Crabtree, JJ., agree.
In his brief, aPPellant asserted that aPPellee’s income was $2,282.07 Per month, as follows:
First Quarter 2003 receipts $64,500.00
Less nonpayroll expenses -39,238.61
Less payroll expenses -18,160.17
Less one-half of Lauren’s health insurance ($85/month) -255.00
First Quarter 2003 net income $ 6,846.22
Divided by three for monthly income $ 2,282.07
As appellant correcdy notes, child support at this level would be set at $99 per week because the weekly income would be $526.55 ($2,282.07/4.334 = $525.65). However, during oral arguments, appellant noted that a mistake was made in these calculations because the full expense for ten months of the State Volunteer Mutual Insurance Company was listed as $4,918, instead of the quarterly amount of $1,475.40 ($491.80 x 3=11,475.40).
Accordingly, assuming this insurance costs is a nonpayroll expense, the figures should be adjusted as follows:
First Quarter 2003 receipts $64,500.00
Less nonpayroll expenses -35,796.01
Less payroll expenses -18,160.17
Less one-half of Lauren’s health insurance ($85/month) -255.00
First Quarter 2003 net income $10,288.82
Divided by three for monthly income $ 3,429.60
The monthly income of$3,429.61,in turn, equals $791.32 weekly. The presumptive weekly child support at this income level is $135.00. See Admin. Order No. 10, Child Support Chart. | [
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Josephine Linker Hart, Judge.
A Van Burén County jury convictedjason Gregory Hull of second-degree sexual assault and sentenced him to fourteen years in the Arkansas Department of Correction. On appeal he argues that the trial court erred in denying his motion for a directed verdict and in refusing to grant him access to Arkansas Department of Human Services’ records. We affirm.
Hull first argues that the trial court erred in denying his motion for a directed verdict because “there are so many elements which serve to create doubt that. . . basic fairness would preclude conviction in light of the many inconsistencies in the State’s case.” He acknowledges that the scope of the directed verdict made at trial was limited to assertions that the absence of scientific or DNA evidence, conflicts in the witnesses’ testimony, and the unreliable victim testimony caused the evidence to be so deficient that a “reasonable person could not conclude beyond a reasonable doubt” that he was guilty. Neither at trial, nor on appeal, does he specifically reference any particular element of the offense for which the State failed to present proof. His argument is without merit.
We treat the denial of motions for a directed verdict as a challenge to the sufficiency of the evidence. Silverman v. State, 63 Ark. App. 94, 974 S.W.2d 484 (1998). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture. When reviewing the sufficiency of the evidence, it is only necessary for us to ascertain that evidence which is most favorable to the State, and it is permissible to consider only that evidence which supports the guilty verdict. Id.
First, it is well-established law that reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury and the jury’s conclusion on credibility is binding on this court. Id. Second, we are unable to find any real inconsistency in the testimony supporting Hull’s conviction. The ten-year-old victim testified that she was lying on the couch in the home ofjason Shelton when Hull pulled her pants and underwear down to her ankles and touched her “private spot” with his tongue. She confirmed that her knees were “apart” when Hull perpetrated the act. We note that Arkansas State Police child-abuse investigator Robert Leal testified that when he interviewed the victim, she described how her knees were spread apart and her pants were pulled down so that her ankles were held together, which is consistent with the victim’s testimony at trial.
Jason Shelton testified that on the day in question, he walked into his residence and observed Hull kneeling in front of his couch with the victim’s legs up in the air, her pants around her ankles, and Hull’s hands “under her butt” and his face “three or four inches at the most” away from her crotch. Van Burén County Sheriff s Deputy Paul Rice testified that on the day in question, he met with the victim and she told him that Hull “pulled down her pants and he had been playing with her privates.” Rice also stated that Hull admitted pulling down the victim’s pants, but explained that he had done so to examine a “bug bite.”
Hull next argues that the trial court erred in refusing to allow him to access the Arkansas Department of Human Services CHRIS (Children’s Reporting and Information) records. He acknowledges that the United States Supreme Court passed on this issue in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), and held that an in camera review of the confidential records when a criminal defendant seeks access to the records satisfied the requirements of the Sixth Amendment. Hull, however, urges us to rely, not on the holding in Ritchie, but instead on the dissent, which urges a more expansive interpretation of the State’s obligations in regard to the Confrontation Clause. We are unable to accede to this request. We cannot discern that Hull has asserted a separate Arkansas constitutional question in his argument, and we are bound by the decisions of the United States Supreme Court regarding the interpretation of the United States Constitution. Williams v. State, 254 Ark. 799, 496 S.W.2d 395 (1973). In accordance with the Supreme Court’s procedural blueprint as set forth in Ritchie, we have reviewed the sealed records that were reviewed in camera by the trial court, and we agree that they do not contain exculpatory evidence that would warrant their release.
Affirmed.
Glover and Crabtree, JJ., agree. | [
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Andre Layton Roaf, Judge.
A Union County jury convicted appellant Robert Heath Killian of delivery of a counterfeit controlled substance, delivery of a controlled substance, and two counts of the use of a communication facility. He was sentenced to a total of forty-five years in prison. On appeal, Killian argues that the trial court erred when it denied his motion to dismiss for lack of a speedy trial and when it denied his three motions for mistrial. We affirm.
Because Killian does not challenge the sufficiency of the evidence supporting his conviction, only a brief recitation of the facts related to the issues on appeal is necessary. On July 2, 2003, Killian was charged with delivery of a counterfeit controlled substance, delivery of a controlled substance, and two counts of the use of a communication facility. On July 22, 2005, immediately before his trial, Killian filed a motion to dismiss in which he argued that 781 days had elapsed since he was arrested on June 2, 2003. The trial court denied the motion to dismiss, citing several excluded periods and declaring that only 323 non-excluded days had passed since Killian’s arrest date.
During Killian’s trial, he made three motions for a mistrial. Killian first moved for a mistrial during voir dire when a prospective juror stated that he was employed as a supervisor at the jail and had seen Killian “come through [the] facility several times.” Killian again moved for a mistrial when the State’s confidential informant testified that he had seen Killian selling methamphetamine at a time not related to the offenses for which Killian was being tried. Killian last moved for a mistrial on the basis that the State, in its closing argument, had commented on Killian’s right not to testify. The trial court denied all three motions for mistrial.
For his first point on appeal, Killian argues that the trial court erred when it denied his motion to dismiss for violation of the speedy trial rule. Arkansas Rule of Criminal Procedure 28 governs speedy trials. Any defendant charged in circuit court shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months of the date he was arrested or the date the charges were filed, whichever is earlier, excluding any periods of necessary delay as authorized by Rule 28.3. Ark. R. Crim. P. 28.1(c) (2006); Ark. R. Crim. P. 28.2(a) (2006). Rule 28.3 governs the included periods and further provides that “such periods shall be set forth by the court in a written order or docket entry, but it shall not be necessary for the court to make the determination until the defendant has moved to enforce his right to a speedy trial pursuant to Rule 28 unless it is specifically provided to the contrary below.”
Here, Killian was arrested on June 2, 2003. His trial was held 781 days later on July 22, 2005. Killian filed his motion to dismiss for lack of a speedy trial on July 22, 2005, just before his trial began. His motion did not challenge any specific excluded period. Instead, Killian generally asserted that he had been denied a speedy trial based on the 781 days since his arrest. Immediately preceding the trial, the trial court held a hearing on Killian’s motion to dismiss. The trial court reviewed the docket and found a few periods that had been previously excluded and further excluded a few more. The trial court determined that only 323 non-excluded days had elapsed since Killian’s arrest and ruled that Killian’s trial was being held within the time allowed by Rule 28. During the hearing, Killian did not object to any of the excluded periods cited by the trial court or to the trial court’s calculation of the number of excluded days.
The State asserts that Killian’s speedy-trial argument is not preserved for appellate review. To preserve a speedy-trial objection for appeal, the defendant must make a contemporaneous objection at the hearing where the time is excluded. DeAsis v. State, 360 Ark. 286, 200 S.W.3d 911 (2005). The reason for requiring a contemporaneous objection is to inform the trial court of the reason for disagreement with its proposed action prior to making its decision or at the time the ruling occurs. Id. at 292. “The idea is to give the trial court the opportunity to fashion a different remedy.” Id. Here, the trial court expressly noted periods of exclusion during the hearing on Killian’s speedy-trial motion, and Killian never objected to any of these periods at the hearing when the trial court charged these periods to him.
Killian argues that DeAsis, supra, is distinguishable from the present case, because DeAsis involved a motion for a mental evaluation in which the trial court announced at the time the motion was made that a specific time period related to the motion for mental evaluation would be excluded and charged to the defendant. Here, only three of the six excluded periods announced in open court had had orders entered contemporaneously. The trial court did not announce in open court the additional disputed, excluded periods until the hearing on the speedy-trial motion. Killian challenges the exclusion of those three additional periods on appeal, and he asserts that a contemporaneous objection at this time was not necessary because the trial court announced these periods at the same time that it ruled on his motion for dismissal for lack of a speedy trial. Killian argues that, because these excluded periods had no prior orders or docket entries and were announced in open court only at the hearing, he was denied the opportunity to make a contemporaneous objection to the excluded periods at issue. Killian, however, cites no cases to support this argument.
The hearing on Killian’s motion to dismiss for lack of speedy-trial issue consisted of the following:
The Court: He was arrested June 2, 2003. Since that time I find a total of... Did you have 760 days?
State: I just figured up what was not excluded.
The Court: Okay. I have an excluded period of August 21 to September 25,2003.
State: I didn’t find that one.
The Court: There was a plea agreement filed on August 21,2003. We continued it to September 25, 2003, for the plea, I’m excluding that. September 11, 2003 to March 25,2004.
State: Yes, sir.
The Court: March 26,2004 to July 29,2004.
State: Yes, sir.
The Court: July 29,2004 to August 19,2004.
State: Yes, sir.
The Court: He didn’t show August 19, 2004, a Bench Warrant was issued and he was arrested February 15, 2005, and then he appeared February 17, 2005, and it was continued to May 3, 2005 with an excluded period. Now the only questionable period is March 24, 2004 to July 29, 2004 and I’m excluding that because that is when we had the letter from the Gyst House, when he was accepted to the Gyst House.
State: I thought I read the docket sheet to reflect that there was an excluded period to that in any event.
The Court: There was initially. Any way that is a total of 323 days. We are on the 323rd day. The [m]otion for dismissal on speedy trial is denied.
Here, Killian filed a general speedy-trial motion that asserted only that 781 total days had elapsed since he was arrested and did not delineate any periods that he challenged. At the hearing, Killian did not contemporaneously object to any of the excluded periods announced by the trial court, and thus did not inform the trial court of the reason for his disagreement with its proposed action prior to or at the time it ruled on the matter. Contrary to Killian’s assertion, he was not denied the opportunity to make a contemporaneous objection, because he could have made this objection when the trial court announced the specific disputed periods of excluded time or when it ruled on the matter. The trial court was therefore never informed of the reasons that Killian disagreed with its exclusion, or advised whether he disputed all or some of the exclusions, nor was the court given the opportunity to “fashion a different remedy.” Accordingly, we agree that under these circumstances, Killian’s speedy-trial issue is not preserved for appellate review.
Killian’s second argument on appeal is that the trial court erred when it denied his three motions for mistrial. A mistrial is a drastic remedy only to be used when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction to the jury. DeAsis, su-pra. The decision to grant a mistrial is within the sound discretion of the trial court and will not be overturned absent a showing of abuse or manifest prejudice to the appellant. Id.
First, Killian moved for a mistrial during voir dire. A prospective juror, Jimmy Sanders, stated that he was employed as a supervisor at the jail and had seen Killian “come through [the] facility several times.” Killian moved for a mistrial, and the trial court asked if any of the jurors had heard the remark. The trial court then instructed any jurors who had heard it to disregard it. The record is not clear as to how many, if any, of the prospective jurors heard Mr. Sanders’s remark.
In Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004), an officer testified that he recognized Parker because the defendant had been “in and out of the Dumas jail.” The trial court denied Parker’s motion for mistrial and admonished the jury to disregard the testimony. The supreme court held that the trial court acted within its discretion and that the admonition removed any prejudice. Generally, an admonition to the jury cures a prejudicial statement unless the statement is so inflammatory that justice could not be served by continuing the trial. Parker, supra. The supreme court noted that it took into consideration whether the prosecutor deliberately induced a prejudicial response. Id.
Here, Sanders’s comment was not in response to a question by the prosecutor but Mr. Sanders was instead responding to a question by Killian’s attorney. Sanders did not indicate what, if any, crimes Killian may have been charged with or why he might have been in jail. Thus, we cannot say that Sanders’s comment was so prejudicial that it precluded Killian from obtaining a fair trial; moreover, any prejudice that might have resulted from the comment was cured by the trial court’s admonition to the jury.
Killian again moved for a mistrial when the State’s confidential informant, Leroy Williams, testified that he had seen Killian selling methamphetamine at a time not related to the offenses for which Killian was presently being tried. The trial court admonished the jury that the trial was about the two counts that Killian was charged with and that the jury was to disregard Williams’s comment about another possible criminal incident.
This court has held that any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in some prejudice to the defendant. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003); Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002). The trial court, however, is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Smith, supra. The general rule is that a cautionary instruction or admonishment to the jury can make harmless any prejudice that might occur from an inadvertent reference to a prior conviction. Id.
Here, the reference was not to a prior conviction but to another possible crime that Killian might have committed. The State asked Williams how he became involved in the case against Killian. Williams replied that he had “been knowing Mr. Killian for some time, seen him in certain places and . . . seen him sell somebody else some meth.” The trial court explained to the jury that the trial was limited to the crimes that Killian had been charged with and that it should disregard Williams’s unsolicited statement about another possible criminal incident. The State’s question was not intended to induce a prejudicial response. We cannot say that Williams’s comment was so prejudicial as to preclude Killian from obtaining a fair trial; likewise, any prejudice that might have resulted from the comment was cured by the trial court’s admonition to the jury.
Finally, Killian argues that the trial court should have granted a mistrial based on a statement made by the State in its rebuttal closing argument to the jury. In arguing that Williams was a credible witness, the State made the following statement:
[WjiUiams gained nothing out of this other than our appreciation. . . . The work he does is good. You are the judges of credibility. You didn’t hear anything from [Williams’s] mouth or from anybody else’s mouth in here except for [defense counsel’s] that brought that into issue.
(Emphasis added.) Killian’s attorney asked to approach the bench at this point, but the trial court told him “no.” After the jury retired for its deliberations, Killian’s attorney moved for a mistrial on the basis that the State had commented on his right not to testify. The trial court denied the motion for mistrial after it accepted the State’s explanation of its argument, which was that no witness had brought into issue Williams's credibility. The trial court noted that the argu ment was that no one had impugned Williams’s character and that the State’s argument was directed toward the testimony itself and not toward Killian.
A motion for mistrial based on an improper closing argument must be made at the time the objectionable statement is made, rather than waiting until the end of the State’s argument. Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). A mistrial motion that is based on improper argument is untimely when it is made after closing argument and out of the jury’s presence. Id. Motions and objections must be made at the time the objectionable matter is brought to the jury’s attention or they are otherwise waived. Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000). Here, Killian moved for a mistrial after the closing argument and outside the presence of the jury. Although the trial court initially told Killian’s counsel that he could not approach the bench, Killian was nevertheless required to make his record but instead said nothing further to apprise the trial court of the nature of his objection or that he wished to move for mistrial. While Killian’s argument was thus untimely, see id., even if we treat his motion as preserved for appellate review, we would conclude that the State’s comments did not refer to Killian’s failure to testify. Killian argues that the comments were a “clear reference to [Killian’s] failure to take the stand.” However, the State asserted only that none of the testimony presented at trial called into question the truthfulness of Williams’s testimony. Taking the context in which the comments were made into consideration, the State did not suggest that Killian had not testified. The State never referred to Killian and simply noted that none of the testimony from Williams, or anyone else, had called into question Williams’s credibility. This is not an improper comment directed toward Killian’s failure to testify.
Affirmed.
Bird and Baker, JJ., agree. | [
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Karen R. Baker, Judge.
Appellant Barbara Bingle challenges the decision of the Workers’ Compensation Commission finding that appellant was able to return to work on August 14, 2001, and that appellees Quality Inn and Union Standard Insurance Co.’s refusal to pay appellant’s medical bills and attorney’s fees previously ordered was not willful. We originally ordered rebriefing in this case in No. CA04-1142 (Apr. 5, 2006). On resubmission, we reverse in part and affirm in part.
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. Crossett Sch. Dist. v. Gourley, 50 Ark. App. 1, 899 S.W.2d 482 (1995). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Wright v. ABC Air, Inc., 44 Ark. App. 5, 864 S.W.2d 871 (1993). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). The Commission is required to weigh the evidence impartially without giving the benefit of the doubt to any party. Keller v. L.A. Darling Fixtures, 40 Ark. App. 94, 845 S.W.2d 15 (1992).
The Commission also has the duty of weighing the medical evidence as it does any other evidence. Roberson v. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997). The Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). When the Commission denies benefits upon finding that the claimant failed to meet his burden of proof, the substantial evidence standard of review requires that we affirm if the Commission’s decision displays a substantial basis for denial of the relief. Cooper v. Hiland Dairy, 69 Ark. App. 200, 11 S.W.3d 5 (2000). In addition, the Commission cannot arbitrarily disregard any witness’s testimony. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001).
Appellant Barbara Joyce Bingle, age forty-four, was employed by appellee Quality Inn as a housekeeper when she sustained an accidental injury to her right knee on May 30, 1999. On August 12, 1999, Dr. Bud Dickson identified the injury as traumatic pre-patellar bursitis and performed an excision on the right knee. Appellant returned to light-duty work on or about August 25, 1999.
In an opinion filed February 2, 2000, an administrative law judge found that appellant proved she sustained an injury to her right knee on May 30, 1999; that appellant was entitled to temporary total disability compensation from August 12, 1999, through September 13, 1999; and that appellant proved she was entitled to medical treatment and referrals from Dr. Bud Dickson. No appeal was taken from the administrative law judge’s opinion.
Appellant continued to follow up with Dr. Dickson. Dr. James Mulhollan performed arthroscopic surgery on appellant’s right knee on April 11, 2001. Dr. Mulhollan indicated that appellant would return to restricted work on April 16, 2001, and then to full work duties on April 23, 2001. However, on April 28, 2001, appellant sought emergency treatment, and the emergency physician took her off work that date until seen by Dr. Mulhollan.
April 28, 2001, was the last day of work for appellant. A pre-hearing order was filed with the Commission on June 26, 2001. Appellant claimed that she continued to require medical treatment, that her authorized treating physician had declined to provide further treatment, and that she was entitled to a change of treating physician in close proximity to her residence. She also stated that she had been rendered totally disabled since the April 28, 2001 emergency-room visit and that appellees were liable for the emergency-room treatment as well as temporary total disability benefits and change of treating physician all of which had been controverted. Appellees contended that they were providing reasonably necessary medical treatment through Dr. Mulhollan.
Subsequently, appellant presented on her own to Dr. D’Orsay Bryant, III, at Tri-State Orthopaedic and Sports Medicine Center, on July 10, 2001. Dr. Bryant performed arthroscopic surgery on appellant’s knee on July 13, 2001. On August 14, 2001, Dr. Bryant wrote that appellant was doing well with no complaints and that follow-up for the patient would be “as needed.”
On October 30, 2001, the administrative law judge filed an opinion stating that appellant was temporarily totally disabled for the period beginning April 29, 2001, and continuing through the end of her healing period or until she returned to work, whichever occurred first. He also found that medical treatment for Dr. Bryant was reasonably necessary, and determined that appellees were to pay all reasonable hospital and medical expenses arising out of the injury of May 30, 1999. In an opinion dated August 6, 2002, the Commission affirmed the award of additional benefits and designation of Dr. Bryant as appellant’s authorized treating physician.
Another pre-hearing order was filed with the Commission on February 11, 2003. Appellant claimed that she remained within her healing period and was entitled to continued temporary total disability compensation. She further asserted that appellees failed and refused to pay for her reasonably necessary medical treatment as previously ordered and that appellees’ failure to comply with those orders had resulted in her being denied access to reasonably necessary medical treatment by her authorized physician. These claims were based on appellant’s assertion that Dr. Bryant refused to see her for treatment until her accumulated charges had been paid.
Appellees acknowledged that two bills had not been paid, but that those bills had been placed in line for payment along with a 20% penalty and attorney’s fee. They explained that their failure to pay these bills was a result of a serious illness by the adjuster handling the claim. Although the adjuster continued to work during the treatment of her illness prior to her passing, she became increasingly disoriented. These two bills had been overlooked during that time, but all other bills had been paid. When appellee Union Standard Insurance Company realized that the illness of the adjuster required another individual to work the files originally assigned to her, it hired Ms. Hill, at least in part, to begin working these numerous files. Ms. Hill testified that she received these files in December 2002, and that appellant’s file was included in that distribution. She described the difficult process, required to determine which bills had been paid. This process included sorting through the duplicate bills, contacting the individual physicians’ offices, determining correct balances, and maintaining contact with appellant’s attorney. Ms. Hill was unable to identify the exact date that she began working appellant’s file because of the number of files she was processing; however, it was undisputed that the two overlooked bills were paid on February 12, 2003. One bill was submitted by the physician on July 24, 2001, and the other was submitted on September 4, 2001, from the facility where the surgery was performed.
Despite the delay in the payment of these two submitted charges, the Commission found that appellees’ failure to timely pay the two bills was neither willful nor intentional to require the imposition of the 36% penalty pursuant to Arkansas Code Annotated section 11-9-802 (e) (Repl. 2002). Although the delay in payment was significant, the Commission found that the Commission’s opinion affirming the administrative law judge’s original award was not final until September 6, 2002, after the thirty days allowed for an appeal had expired. See Ark. Code Ann. § 11-9-711(b) (Repl. 2002). Pursuant to Arkansas Code Annotated section ll-9-802(c), appellees had fifteen (15) days to pay the award of temporary total disability. They did not do so, but paid a 20% penalty pursuant to the statute. The Commission stated that although reasonable minds could find that appellees’ actions in this case were negligent, that the 36% statutory penalty was not warranted because the record did not show that appellees acted willfully and intentionally in failing to pay the medical bills submitted to them.
The issue before us is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; even if a preponderance of the evidence might indicate a contrary result, if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. St. Vincent Infirmary Med. Ctr., supra. Nothing in the record indicates that appellees intentionally structured the processing of appellant’s claims to delay the payment of the two medical bills. To the contrary, the testimony specifically set forth appellees’ acknowledgment that the illness of the adjuster was affecting the processing of claims including appellant’s file and that steps were taken to address the delays. Appellees also ensured on their own initiative that the 20% penalty was paid. Accordingly, we hold that substantial evidence supports the Commission’s disposition of the contempt issue and affirm that portion of the decision.
However, we must reverse the Commission’s finding that appellant was entitled to temporary total disability only through August 14, 2001. In reaching its decision, the Commission noted that Dr. Bryant assigned a permanent anatomical rating and opined that appellant had reached maximum medical improvement on April 15, 2003, not August 14, 2001. The Commission reasoned that appellees implicitly contended that appellant reached the end of her healing period on August 14, 2001, noting that Dr. Bryant testified that the healing time for surgery would be four to six weeks and that the time period of July 13, 2001 through August 14, 2001 closely corresponded with the projected healing time for surgery. It further dismissed appellant’s assertion that she was unable to timely return to Dr. Bryant because of appellees’ failure to timely pay the outstanding balance at his office stating that the record supported the conclusion that she did not try to see her treating physician until her knee was painful and swollen in February 2002.
On appeal to this court, appellees argue that the Commission properly inferred from Dr. Bryant’s constructive release of appellant that she had reached the end of her healing period, or that it was imminent, when he saw her on August 14, 2001. Appellees cite no law supporting the premise that our statutory or case law regarding the provision of workers’ compensation benefits recognizes the constructive release of a patient or the inference from such a release that the patient has reached the end of her healing period. Perhaps one practical effect of a failure to timely pay outstanding medical bills could be a delay in obtaining the statutorily required medical opinion identifying the date of maximum medical improvement and assigning an impairment rating.
Nevertheless, our review of the workers’ compensation statutes and their interpretation by case law leads us to reject any suggestion that a party may prove or disprove the end of a healing period through a constructive release of a patient. Section ll-9-102(16)(B) of Arkansas Code Annotated (Repl. 2002) provides that medical opinions addressing compensability and permanent impairment must be stated within a reasonable degree of medical certainty. The legislative declaration found in section 11-9-1001 admonishes that any liberalization or broadening or narrowing of the extent to which any physical condition or injury should be excluded from or added to coverage by the law is the sole province of the Arkansas legislature.
While the Commission has the authority to accept or reject medical opinions, and its resolution of the medical evidence has the force and effect of a jury verdict, see Poulan Weed Eater, supra, the Commission cannot arbitrarily disregard any witness’s testimony. See Freeman v. Con-Agra Frozen Foods, supra. In this case, the Commission rejected Dr. Bryant’s medical opinion assigning an impairment rating and finding maximum medical improvement on the date of April 15, 2003, and substituted that medical opinion with its own finding of a constructive release of the patient. Neither the Commission nor this court has the authority to extend or limit coverage by finding a constructive release when the statute specifically requires a medical opinion regarding impairment and compensability to be within a reasonable degree of medical certainty. Without this authority, the Commission’s substitution of the medical opinion with its own finding of a constructive release was arbitrary. Accordingly, we must reverse and remand on that issue.
Reversed and remanded in part; affirmed in part.
Gladwin and Robbins, JJ., agree. | [
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Josephine Linker Hart, Judge.
Ervin Ray Sparkman and Aline Sparkman appeal from an order of the Fulton County Circuit Court terminating their parental rights to their daughter, E.S. On appeal, they argue that the trial court clearly erred in: 1) finding that ADHS met its burden to establish the grounds for termination of their parental rights by clear and convincing evidence; and 2) taking judicial notice of all of the testimony of Lisa Hancock, which took place prior to the termination hearing, because they were denied access to Hancock’s records prior to the previous testimony and therefore did not have the opportunity to properly cross-examine this witness. We affirm.
On May 12, 2003, an emergency order was entered, placing E.S. in ADHS custody. The Sparkmans waived probable cause. The subsequent adjudication hearing was begun on June 17, 2003, but continued five times, finally concluding on May 14, 2004. After extensive testimony from no less than twenty-six witnesses, E.S. was adjudicated dependent/neglected. In the adjudication order, the trial court found that Ervin had sexually abused E.S. Further, it found that Aline was “afraid of her husband” and that she had failed to protect E.S. from Ervin. All of the testimony was incorporated into the termination-of-parental-rights proceedings.
On May 23, 2005, the trial court filed its order terminating the Sparkmans’ parental rights. It stated that at the adjudication hearing, it found that Ervin had sexually abused E.S., that Aline was afraid of her husband and that she failed to protect E.S., and that Aline would be “unwilling and incapable” of protecting her daughter in the future. It further found that Ervin had subjected E.S. to aggravated circumstances based on his sexual abuse of E.S., and that Aline had made it “very clear” to the court that she had “no intention of protecting the juvenile from Ervin.”
On appeal, the Sparkmans first argue that the trial court clearly erred in finding that ADHS met its burden to establish the ground for termination of the parental rights by clear and convincing evidence. They divide this argument into four sub-points, which we will take up in turn. We note that the grounds for termination of parental rights must be proven by clear and convincing evidence. M.T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 952 S.W.2d 177 (1997). 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 Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination of parental rights cases de novo. Id.
First, the Sparkmans argue that ADHS failed to present clear and convincing evidence that there is “a potential harm to the safety of the child” caused by returning E.S. to Aline’s custody. They assert that the record is “devoid of any shred of evidence which show affirmative acts” that Aline took to “place the child in harm’s way,” and it is uncontested that Aline is a “non-offending spouse.” Accordingly, they contend that the finding that Aline would not protect E.S. is based on nothing more than speculation and conjecture. We disagree.
At the termination hearing, Aline was asked directly if she would keep Ervin away in order to take care of E.S. She answered: “It’s just hard. I don’t know. Put it this way, right now that decision would probably be no.” Throughout the proceedings, Aline steadfastly refused to believe that Ervin was responsible for committing the sexual abuse of E.S. that was proven at the adjudication hearings. We believe the current case is analogous to Wright v. Arkansas Department of Human Services, 83 Ark. App. 1, 115 S.W.3d 332 (2003), where we affirmed the termination of a mother’s parental rights even though she apparently did not abuse her child. While she may not have actually abused her child, she nonetheless chose to stand by the perpetrator, her boyfriend, “until the State proves something.” We held that “the rights of parents are not proprietary and are subject to their related duty to care for and protect the child and the law secures their preferential rights only so long as they discharge their obligations.” Id. (quoting Jones v. Jones, 13 Ark. App. 102, 680 S.W.2d 118 (1984)). Furthermore, in Camarillo-Cox v. Arkansas Department of Human Services, 360 Ark. 340, 201 S.W.3d 391 (2005), the supreme court held that marriage to a sex offender manifested “incapacity or indifference” to remedy a situation that warranted a child not being returned to the home, despite testimony in that case that the mother would supervise the child or force her husband to move out. Here, Aline testified that she did not intend to be nearly so willing to protect E.S. Accordingly, we hold that there is no merit in the Sparkmans’ argument.
The Sparkmans next argue that ADHS failed to present clear and convincing evidence that it made meaningful efforts to rehabilitate Aline “to enable her to remove the perpetrator or keep him out of the home.” We note, however, that the Sparkmans failed to appeal from the permanency-planning order in which the trial court found that ADHS had made reasonable efforts to deliver reunification services. Failure to appeal this finding waives this issue for appeal. Lewis v. Arkansas Dep’t of Human Servs., 364 Ark. 243, 217 S.W.3d 788 (2005). We note further that Aline was employed and that Ervin left the marital home for a period of time, only to be welcomed back. We are aware of no services that ADHS could have offered that would have prevented Aline from making that choice.
For their third sub-point, the Sparkmans argue that ADHS failed to present clear and convincing evidence that it made reasonable efforts to rehabilitate Ervin. They contend that because Ervin was found to be the perpetrator of the abuse, “the ADHS seemingly washed their hands of any effort to comply with statutes.” We hold that there is no merit to this argument. Ervin was found by the trial court to have subjected E.S. to sexual abuse, which ourjuvenile code designates as “aggravated circumstances.” Ark. Code Ann. § 9-27-303(6) (Repl. 2002). When a parent subjects a child to aggravated circumstances, it relieves ADHS of the burden of providing reunification services. Ark. Code Ann. § 9-27-341(b) (3) (B)(ix)(b) (Repl. 2002).
Finally, the Sparkmans argue that ADHS failed to present clear and convincing evidence that it made reasonable efforts to reunite the family as required by our juvenile code. Citing Arkansas Code Annotated section 9-27-303 (46) (A) (i) (Repl. 2002), they contend that statute defines reasonable efforts as “efforts to preserve the family prior to the placement of a child in foster care to prevent the need for removing the child from his or her home and efforts to reunify a family made after a child is placed out of home to make it possible for him or her to safely return home,” and they assert that ADHS had the responsibility to “make real meaningful and reasonable efforts to maintain family ties to whatever extent is possible in each case.”
We believe that this final subpoint is merely reiteration of the Sparkmans’ previous subpoints, and insofar as it tries to address the reasonable-efforts finding, it is similarly barred. However, we note further that the statutory section on which the Sparkmans attempt to rely is simply not dispositive of this situation. As we stated previously, “the rights of parents are not proprietary and are subject to their related duty to care for and protect the child and the law secures their preferential rights only so long as they discharge their obligations.” Wright v. Arkansas Dep’t of Human Sews., supra. By the time ADHS became involved in this case, it was too late to prevent Ervin from sexually abusing E.S. At that point, the only option available to ADHS was the removal of the child from the home. Furthermore, we are very mindful of the fact that Aline refused to make a firm commitment to undertake the duty of assuring E.S.’s safety in the future. We hold that the trial court did not err in finding sufficient grounds for the termination of the Sparkmans’ parental rights.
The Sparkmans next argue that the trial court erred in taking judicial notice of all of the testimony of Lisa Hancock, which took place prior to the termination hearing, because they were denied access to Hancock’s records prior to the previous testimony, and therefore, they did not have the opportunity to properly confront this witness. The Sparkmans concede that they were given access to Hancock’s records two weeks prior to the termination hearing. However, they were not able to use those records to cross-examine Hancock because ADHS failed to call her as a witness even though she was listed on its witness list. Without citation of authority, they assert that “the burden ought not to shift to Appellants that they should have to foresee that the State would not call Hancock, and that Hancock would have to be called by the Appellants in their case in chief at the Termination Hearing, only to properly cross-examine her on testimony from months, and possibly years earlier because the State failed to meet previous discovery requests.” They assert that they were prejudiced because “Hancock’s testimony carried great weight in the Adjudication and Termination stages of these proceedings.” We disagree.
We review assertions of evidentiary error under an abuse-of-discretion standard. See Arkansas Dep’t of Human Servs. v. Huff, 347 Ark. 553, 65 S.W.3d 880 (2002). The circuit court has broad discretion in its evidentiary rulings; hence, the circuit court’s findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. See id. Our juvenile code allows the trial court to take judicial notice of prior testimony and pleadings if the parents are represented by counsel for those proceedings. Ark. Code Ann. § 9-27-341 (d)(2).
Lisa Hancock is a licensed professional counselor at the Woods and Associates Counseling Clinic. Pursuant to a referral from ADHS, she became E.S.’s counselor. Hancock began treating E.S. on a weekly basis, beginning shortly after E.S. was taken into ADHS custody. She testified on August 11, 2003, and April 9, 2004, during the adjudication phase of the proceedings. In her August 11, 2003, testimony, Hancock opined that E.S. had been severely sexually abused and was suffering from post-traumatic stress disorder. She based these opinions on specific statements that were made by E.S. during her therapy sessions. Hancock was cross-examined extensively on the contents of her progress notes, and after she concluded her testimony, the Sparkmans orally moved to be provided a copy of her case file. The trial judge agreed to order production of the file. When Hancock took the stand during the April 9, 2004, setting, the substance of her testimony related to E.S.’s progress and how she related to Aline during a supervised visit. Again, Hancock was cross-examined extensively. The Sprakmans did not object to any portion of Hancock’s testimony or argue that they were in any way inhibited by the lack of her case file in conducting their cross-examination.
Consequently, the essence of the Sparkmans’ argument is that this case should be reversed because Hancock did not testify at the termination hearing. We note however, that the Sparkmans were afforded the opportunity to subpoena Hancock, and they simply did not do so. Moreover, they did not ask for a continuance. We will not reverse absent a showing of greater diligence on the part of the appellants to secure Ms. Hancock’s attendance at the hearing. See Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994).
Affirmed.
Vaught and Baker, JJ., agree. | [
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John E. Jennings, Judge.
Larry Maynard was convicted in Baxter County Circuit Court of delivery of a controlled substance, after a jury trial. The State’s evidence included the testimony of an accomplice, William Cunningham. The sole argument on appeal is that the evidence corroborating the accomplice’s testimony was insufficient as a matter of law. We affirm.
At the outset we note that Maynard did not raise the issue of the sufficiency of the corroborating evidence at the trail court level, by motion for directed verdict or otherwise. Furthermore, he acquiesced in the court’s instruction which left this issue to the jury. Although Harris v. State, 262 Ark. 506, 558 S.W.2d 143 (1977) is authority for the proposition that under these circumstances we need not reach the issue of the sufficiency of the corroboration, we nevertheless decide this case on the merits, as did the supreme court in Harris.
The requirement that an accomplice’s testimony be corroborated is statutory. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides in part:
A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof.
The case law dealing with the application of this statute was well set out in King v. State, 254 Ark. 509, 494 S.W.2d 476 (1973):
By its own language, the statute only requires that there be corroboration by evidence tending to connect the defendant with the commission of the offense and that this evidence go beyond a showing that the crime was committed and the circumstances thereof. We have, therefore, consistently held that the corroborating evidence need not be sufficient in and of itself to sustain a conviction, but it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime.
While the corroborating evidence must do more than raise a suspicion of the defendant’s guilt, it need not be direct, but may be circumstantial, so long as it is substantial, and tends to connect the defendant with the commission of the offense. Even though one circumstance of a combination of several circumstances might not be suffi cient, all of the circumstances in evidence may constitute a chain sufficient to present a jury question as to their adequacy as corroboration of the accomplice. The question of sufficiency of the corroborating evidence to justify submission of the question of a defendant’s guilt must, of necessity, be governed by the facts and circumstances of the particular case, having regard for the nature of the crime, the character of the accomplice’s testimony and the general requirements with respect to corroboration. Where the circumstantial evidence tending to connect the defendant with the offense is substantial, the question of its sufficiency, along with the testimony of the accomplice, becomes one for the jury. (Emphasis in original and citations omitted.)
This last principle is perhaps sometimes overlooked. The sufficiency of the corroborating evidence will frequently be a question of fact, for the jury, rather than a question of law for this court. See McClure v. State, 214 Ark. 159, 215 S.W.2d 524 (1948). See also Comment, The Impact of the 1976 Criminal Code on the Law of Assessorial Liability in Arkansas, 31 Arkansas Law Review 100 (1977). This is the reason for AMCI 402 and 403, the vehicles through which the trial court is obliged to present the issue to the jury. On appeal, our inquiry is, or should be, not whether we view the corroborating evidence as sufficient, but whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient. And in determining whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient, we need only consider testimony lending support to the jury verdict and may disregard any testimony that could have been rejected by the jury on the basis of credibility. Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985).
In this case Maynard and Cunningham were under investigation by the police for selling drugs. An informant, Charles Beta, was used to make the drug purchases. Maynard was charged for a delivery of marijuana to Cunningham that took place on February 25, 1984. On that day Cunningham was arrested as he returned home from what he testified was a trip to see Maynard to get a new supply of marijuana to sell. Cunningham’s car was searched, under a warrant, and a large plastic bag containing 34 small bags of marijuana was found. Eleven of Maynard’s fingerprints were found on five bags. Cunningham’s fingerprints were found on none of the bags. Cunningham testified that Maynard knew he was suspected of dealing in drugs and that in January he asked Cunningham to go into business with him. Maynard would supply drugs and refer customers to Cunningham. Cunningham would be paid on a commission basis. Cunningham further testified that he obtained about a pound of marijuana a week from Maynard for resale, that Maynard weighed and bagged the marijuana, and that he sold to customers who said “Larry sent me,” a signal prearranged by Maynard. He testified that Maynard came to his house the week of February 17 to pick up money in order to go north to buy more drugs. He also testified that on February 25 he went to Maynard’s and obtained the 34 bags of marijuana subsequently found in his car.
Beta testified that on February 17 he attempted to buy marijuana from Maynard, but Maynard told him he was not selling and referred him to Cunningham. He said that he bought a quarter ounce of marijuana from Cunningham on February 17, after he told him that he knew Maynard. Beta testified that he had purchased drugs from Maynard in the past, had seen marijuana weighed and bagged at Maynard’s house on several occasions, and that Cunningham had never had to weigh or bag the marijuana he sold. He also testified, without objection, that Maynard and Cunningham were working together.
Maynard admitted handling the bags of marijuana but said this was only because he was trying to decide which one to buy. He admitted to making a trip north, to Illinois, in February, but testified that this was to pick up a jeep, not to buy drugs. Maynard testified that he had no scales, but the lady with whom he lived, Jane Chastain, testified that there was a set of scales there, which were used only for cooking.
Laying aside Cunningham’s testimony, surely the corroborating evidence tends to connect Maynard with the commission of the crime. On these facts the sufficiency of the corroborating evidence was a fact question for the jury to decide. The jury’s finding that the corroborating evidence was sufficient is supported by substantial evidence.
Maynard relies heavily on Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978) and Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984). Neither case is controlling. Holloway was a burglary case. There was no accomplice and therefore no issue as to the sufficiency of corroborating evidence. The issue in Holloway was whether the presence of one fingerprint on a piece of broken glass found outside a home which had been burglarized was substantial evidence to support a subsequent burglary conviction. We held that it was not. Here the conviction does not rest upon one fingerprint. It rests upon the testimony of the accomplice Cunningham, as corroborated by the fingerprint evidence, which is much more persuasive here, as well as the testimony of Beta, Chastain, and Maynard himself.
In Pollard, the supreme court reversed a conviction for manufacturing marijuana, holding that the corroborating evidence presented only suspicious circumstances. Here, however, we are persuaded that the corroborating evidence does more than merely raise a suspicion that Maynard may be guilty. It tends to connect him with the commission of the offense, as required by the statute.
Affirmed.
Cracraft, J., concurs.
Coulson and Mayfield, JJ., dissent. | [
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Tom Glaze, Judge.
This appeal arises from a post- decretal divorce action wherein the appellant/father filed an action seeking custody of the parties’ minor children, twin sons, ages four, and another son, age seven. Appellant contends the trial court erred in finding the evidence was not sufficient to warrant a change of custody. We agree and therefore reverse.
First, we recognize the oft-stated rule that this Court will not reverse the chancellor unless it is shown that the lower court decision is clearly contrary to a preponderance of the evidence. Particularly where the credibility of witneses appearing before the chancellor is concerned, this Court attaches substantial weight to the chancellor’s findings on material issues of fact. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The primary consideration in awarding the custody of children is the welfare and best interests of the children involved, and other considerations are secondary. Id. These same standards are applicable in a change of custody case. See Bond v. Rich, 256 Ark. 51, 505 S.W.2d 488 (1974); and Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983).
From our review of the entire record, we believe the evidence clearly and decidedly preponderates in favor of a change in custody. In this custody case, there is an unusual amount of consistent testimony, at least on an essential factual issue of importance here. Particularly, appellee concedes a style of life since the parties’ divorce that includes entertaining overnight male visitors when her three sons are at home. She admits sexual activity with these men during these visits. In fact, appellee continued such conduct after appellant filed this action and up to one week prior to trial. The evidence in this respect involves appellee’s relationships with two men — a married man, Mark Cress, and Jeffrey Bradbury. She first became acquainted with Bradbury sometime in the fall of 1981. Apparently, they saw each other for five to six months. He said that he had stayed at appellee’s apartment when the children were there and engaged in sexual relations with her during that period of time. He also related occasions when appellee and the children spent the night with him in Little Rock, Arkansas. After Bradbury and appellee stopped seeing each other, she commenced her affair with Cress during the summer of 1982. Cress admitted he had spent the night at appellee’s home when the children were present, and that he had been in her home every day, including weekends. He conceded that he engaged in sexual activity with her when the children were at home, but he could not give an exact number of occasions. He stated that he did not remember observing appellee preparing the children for church, nor did he remember her taking them. Cress also admitted there were occasions when he and appellee left her home in the morning to take the three boys to their babysitter. He explained these were occasions when he had parked his truck somewhere else or when it was “broken down.” Finally, appellee testified that she had engaged in sexual relationships eight or ten times with Mr. Cress at her home when the children were there. The most recent occurrence was a week prior to trial. She stated that “nothing ever happened in front of my children,” but she also indicated, “I’m not saying that they . . . that they don’t know. I’m just saying that I don’t know that they know.” Appellee testified that she did not have any plans “to stop that type activity.” Appellee did indicate that, if she were so instructed by the court, she would refrain from sexual intercourse with males in the home when the children were present.
Appellant’s testimony enlarged on that given by appellee, Bradbury and Cress. He enumerated countless times that he had observed Bradbury and Cress at appellee’s home when the children were present. He stated that on one occasion appellee admitted that Bradbury had been staying in her home. Appellant also testified critically about specific matters concerning appellee’s failure to properly clothe and care for the boys. He related that until he discussed the matter with appellee, she had failed to properly treat one son’s case of scabies. Appellant concluded that he would provide more for the boys in the way of clothes and physical things and that they would be brought up in a more moral atmosphere. If given custody of the children, appellant intends to live in a farmhouse located about a half-mile from his parents’ home. His extended family, including his mother and sister-in-law, have volunteered to assist him with the children. The sister-in-law, Mary Scherm, testified that appellant cooks dinner for the boys and that he provides them with a good environment.
At the conclusion of trial, the trial judge concluded that the evidence did not justify a change in custody, but he did order that appellee, while a single person, shall not permit any man romantically involved with her to stay overnight at her residence while the children are there. Obviously, in making such order, the chancellor recognized the precarious situation in which the children have been placed. Aside from any moral argument, appellee has had a relationship with three men since her divorce, and the children have experienced contact with at least two of them. Appellee’s amenability to having men in the house on a regular, overnight basis provides the children with an impermanent, unstable situation. Appellee’s actions during the two years preceding this action have been neither wholesome nor in the best interests of her children. Appellee clearly voiced no intention to change her promiscuous lifestyle unless ordered to do so by the court. Obviously, such an order places the court and the appellant in a position to continuously monitor appellee’s conduct, which is a situation we feel is not demanded by the facts in this case. There is no evidence in the record indicating that since the parties’ divorce decree appellant could not provide a good, stable environment for the children. To the contrary, the appellant, with the assistance of his extended family, is in a position to provide not only a good home, but also the physical and moral care these young children require. Of course, all of the evidence in this record is not unfavorable to the appellee. However, considering all circumstances in this case, we believe the greater weight of the evidence compels the conclusion that the children’s best interests will be served by placing them in the custody of the appellant.
In reversing and remanding this cause, we direct that the trial court consider, the parties’ present circumstances in establishing visitation rights for the appellee.
Reversed and remanded.
Mayfield, C.J., and Cooper, J., dissent. | [
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Donald L. Corbin, Judge.
Appellant, Alton Bohan-non, appeals a decision of the chancellor requiring appellant to pay appellee, Jewell Bohannon, alimony in the sum of $400.00 per month and the award of possession of the marital home to appellee. We affirm the chancellor’s decree in both respects.
At the time of the hearing on November 17, 1983, appellee was seventy years of age and the parties had been married for 48 years. The record reflects that appellee was in poor health, unable to work and had a monthly income of $141.00. Appellee’s testimony established her monthly expenses at over $500.00, which figure excluded gasoline, car upkeep and insurance expenses. Appellant did not choose to testify, the proof of more than three years separation having been stipulated by the parties and verified by appellee in her testimony. It was also stipulated by the parties that appellant’s monthly income amounted to $1,291.00
It is well settled that while chancery cases are tried de novo on appeal, the findings of a chancellor will not be reversed unless clearly against a preponderance of the evidence. Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); A.R.C.P. Rule 52(a). The award of alimony in a divorce action is not mandatory but is a question which addresses itself to the sound discretion of the chancellor. We do not reverse the chancellor’s determination unless we find a clear abuse of that discretion. Weathers v. Weathers, 9 Ark. App. 300, 658 S.W.2d 427 (1983); Neal v. Neal, 258 Ark. 338, 524 S.W.2d 460 (1975). Among the factors considered by the courts in fixing the amount of alimony are the financial circumstances of both parties, the financial needs and obligations of their past standard of living, the value of jointly owned property, the amount and nature of the current and anticipated income of each, the extent and nature of the resources and assets of each that is spendable, the amounts, after entry of the decree, which will be available to each for the payment of living éxpenses, the earning ability and capacity of both husband and wife, property awarded or given to one of the parties by the court or the other party, the disposition made of the homestead or jointly owned property, the condition of their health and medical needs, the relative fault of the parties and their conduct before and after separation to each other and to the property of one or both, the duration of the marriage and amount of child support. Boyles v. Boyles, 268 Ark. 120, 594 S.W.2d 17 (1980). In Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982), the Arkansas Supreme Court deleted the relative fault of the parties as a factor considered by the courts in fixing the amount of alimony. It has also been stated that the primary consideration is the ability of the husband to pay regardless of what other factors may indicate. Boyles, supra. Although appellant in the instant case had the opportunity to present evidence of his financial condition, he elected not to testify. From our de novo review of the evidence presented, we cannot say that the chancellor’s award of alimony was an abuse of discretion.
Appellant also contends that the court erred in awarding appellee the use and possession of the marital home. The abstract of the record reflects that a decree of separate maintenance was entered on May 20, 1981, wherein appellee was granted separate maintenance. The decree recites that the parties, together with their then respective attorneys, were present and that the parties had agreed in open court upon a settlement of their property rights, among other things. Pursuant to this agreement,. appellee was placed in possession of four acres and a residence, title to which was in the name of appellant. The agreement was approved by the court and incorporated in the decree. In his complaint for divorce, appellant alleged that property rights had been adjudicated and settled between the parties. Appellee, in her response to appellant’s complaint for divorce, stated that a decree of separate maintenance previously issued by the trial court on May 20, 1981, incorporating a property settlement agreement should be enforced and continued; and additionally, stated that if the court didn’t enforce the agreement, that additional property issues existing between the parties should be settled. On the date set for hearing, appellant’s attorney announced that three issues were to be decided. These included the divorce, alimony and attorney’s fees. The record reflects that appellant’s attorney did not raise the issue of possession of the marital home at this time. This argument was raised for the first time on appeal. We do not consider matters raised in such a manner. Bull v. Brantner, 10 Ark. App. 229, 662 S.W.2d 476 (1984).
Affirmed.
Cooper and Mayfield, JJ., dissent. | [
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Tom Glaze, Judge.
This appeal is from appellant’s conviction of possession with intent to deliver a controlled substance and criminal use of a prohibited weapon, for which he was sentenced to twenty years and five years respectively, to run concurrently. Appellant raises nine points for reversal.
The facts leading to appellant’s arrest are undisputed. On April 25, 1982, the appellant was a passenger in a car stopped by Ashdown police officer, Greg Fox, and Sevier County deputy, John Sullivan, who was visiting Fox and was riding patrol with him. Sullivan was not in uniform, but he was armed. Fox stopped the car after he observed it weaving within its lane. While Fox was running a check on the license of Jimmy Doss, the driver, Sullivan asked Doss if he could look in the trunk. Doss gave him permission to open the trunk, and Sullivan found amj removed an ice chest of beer. Fox testified that when the beer was found, he decided to take all four occupants of the car to the station for a breathalyzer test. Fox saw and removed a Crown Royal sack from the floor of the car and found inside it three boxes of bullets. When he questioned the appellant about the gun that went with the bullets, appellant told Fox it was under a jacket on the backseat. While Fox was retrieving that gun, Sullivan shouted to alert Fox that appellant had a pistol in his hand. When appellant failed to drop the gun after Fox’s second or third command to do so, Sullivan grabbed the gun from his hand. The officers then removed guns from the handbags of the two female passengers and transported all four people to the Ashdown jail.
While Sullivan was locking Doss’s car before leaving it on the roadside, he saw and opened a leather pistol case and found inside a white powdery substance that was later identified as methamphetamine. The car was taken to the City Barn where a search was conducted and various other items found, including hypodermic needles, two weight scales, and two sifters.
The appellant filed pretrial motions to suppress items seized and a motion in limine requesting that the State not be allowed to question appellant at trial about prior drug-related convictions. Items removed from the car when it was searched at the Car Barn were suppressed, but the trial court denied the motion dealing with the methamphetamine. In addition, the court ruled that cross-examination on appellant’s prior convictions would be permitted.
We will discuss the appellant’s nine points for reversal in the order he presented them. Appellant first contends that the trial court erred in ruling on his motion in limine that evidence of his prior drug-related convictions would be permitted on cross-examination for impeachment purposes. Appellant contends that the potential prejudice greatly outweighed any probative value. The appellant further contends that the court’s ruling forced him to give up his right to testify. This same argument was made by defendants in two cases that this Court decided on the same day, Bell v. State, 6 Ark. App. 388, 644 S.W.2d 601 (1982), and Williams v. State, 6 Ark. App. 410, 644 S.W.2d 608 (1982). In both cases, we found that the trial courts had not abused their discretion in ruling that the State would be permitted to impeach the defendant’s testimonies under Rule 609 of the Arkansas Uniform Rules of Evidence. In both, we relied upon Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982), in which the Supreme Court upheld denial of the defendant’s motion in limine and the introduction of evidence of prior convictions under Rule 609. In Smith, the Supreme Court noted that the question of admissibility under Rule 609 must be decided on a case-by-case basis. Id. at 69, 639 S.W.2d 350; see also Washington v. State, 6 Ark. App. 85, 638 S.W.2d 690 (1982). As in Bell and Williams, in the instant case, we do not find that the trial court abused its discretion in denying appellant’s motion in limine or that the court’s ruling deprived him of his right to testify.
Appellant’s second point for reversal is that the court erred in not suppressing any evidence that resulted from Deputy Sullivan’s participation in the search and arrest. The incidents occurred in Ashdown, which is in Little River County. Sullivan is a deputy in Sevier County and was riding with Officer Fox only because the two are friends and former coworkers. Because Sullivan was outside his jurisdiction as a deputy, according to appellant, he had no authority to search the vehicle to find the chest of beer in the trunk. It was finding the beer that led Fox to arrest appellant and the others, according to Fox’s testimony. Appellant claims the original search was void and that all evidence seized as a result of that search should have been suppressed. A similar objection was urged in Logan v. State, 264 Ark. 920, 576 S.W.2d 203 (1979). Logan was arrested in St. Francis County by a Crittenden County deputy sheriff, J.M. Davis, who was accompanied by a St. Francis County deputy sheriff, Sam Hughes. Logan argued on appeal that the arrest made by Davis was illegal and, as a consequence, all items seized and his confession were inadmissible as fruits of the illegal arreest. The Supreme Court found the arrest to be legal because Davis was accompanied by Hughes who “was also present in his capacity as a deputy sheriff and participated in making the arrest.” Id. at 923, 576 S.W.2d at 205. We find the facts in the instant case even stronger than the facts in Logan, because here, Fox undisputedly initiated the stop and made the arrest in his own county. Sullivan merely assisted him.
Appellant’s third point for reversal is that the trial court erred in not suppressing evidence seized as a result of an illegal arrest. In our examination of the abstract, we fail to find any obj ection to evidence based upon an illegal arrest. It is well settled that we do not consider issues or objections raised for the first time on appeal. Brown v. State, 5 Ark. App. 181, 636 S.W.2d 286 (1982).
Appellant’s fourth point for reversal is that the trial court erred in not suppressing appellant’s statement because he was under the influence of alcohol and drugs to the extent that his statement was not voluntarily and knowingly made. The car in which appellant was a passenger was stopped at about 11:30 P.M., and he was questioned and a statement taken about twelve hours later. Officer Fox testified that he could not smell alcohol on appellánt, but that appellant “was rocking from heel to toe under the influence” when the car was stopped. Fox said that his speech was slurred. Deputy James Crouse, who was on duty at the sheriff’s office the night Beck was brought in, testified that on that night, the appellant “just stood there,” but that the next day appellant was upset and was beating on a door in the sheriff’s office. Crouse said, “He appeared to be something . . . people had told me . . . that they thought he was coming down off some type of high or something.
At the pretrial suppression hearing, the appellant claimed that he had not slept for a week, that he had consumed a quart-and-a-half of whiskey each day of that week and that he had ingested over a half a gram of crystal amphetamine when he was arrested. He claimed not to have been aware of what was happening for eight days after his arrest. Federal Agent Larry Carver, one of the officers who took appellant’s statement, testified that appellant told him he had been up for several days and had taken some drugs, but Carver said that appellant could understand what Carver was saying, could respond in an understandable fashion to what was said, and in Carver’s opinion “understood what was going on.”
Our appellate courts have repeatedly held that when testimony conflicts on the issue of voluntariness, it is for the trial court to weigh the evidence and resolve the credibility of the witnesses. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982); Marbley v. State, 9 Ark. App. 190, 656 S.W.2d 717 (1983); and Profit v. State, 6 Ark. App. 51, 637 S.W.2d 620 (1982). We have also held that the defendant’s testimony regarding his interrogation is not entitled to more weight than that of the officers. Id.
The appellant compares his circumstances to those.of the defendant in Townsend v. Sain, 372 U.S. 293 (1963), in which the Court set out standards for determining when a confession is inadmissible as a result of coercion. Townsend is clearly not applicable to the facts at bar because Townsend confessed to three murders after a police doctor allegedly gave him an injection of scopolamine, a “truth serum.” The appellant in the instant case does not allege that he was coerced into making a statement nor that he was drugged by the participating officers.
Appellant’s fifth point for reversal is that the trial court erred in allowing testimonies of Laura Dickinson and Doyne Branch or, in the alternative, in failing to grant appellant a continuance. Appellant based his objection to these witnesses’ testimony upon the State’s failure to disclose the names of the witnesses until the day before trial. We note that appellant filed his motion for discovery only two days before trial, so we are unable to see how the appellant was prejudiced or how the prosecution could have complied any sooner. In Laura Dickinson’s case, because she was a co-defendant of appellant, she would not have been a potential witness for the State until two days before trial, when a motion for severance (which appellant joined in filing) was granted. In Doyne Branch’s case, appellant’s argument is based upon a hearing that occurred in chambers immediately before the trial began. Counsel for appellant objected to Branch’s testifying that he had test fired the weapon. The prosecutor responded that Branch would not testify that he test fired the weapon, but only that “This is a machine gun.” Nevertheless, Branch did testify that he test fired it, but his test resulted in the gun firing only one time, rather than several times, automatically. We fail to see how this testimony prejudiced the appellant at all. In fact, the testimony was more favorable to the appellant than to the State.
On the question of a continuance, a trial court has broad discretion in determining whether to grant a continuance. Christian v. State, 6 Ark. App. 138, 639 S.W.2d 78 (1982). The trial court’s refusal to grant a continuance will not be reversed absent a clear abuse of discretion amounting to a denial of justice, and appellant has the burden to demonstrate such abuse. Id. It is also settled law that in the absence of a showing of prejudice, we cannot say the refusal of a continuance is error. Id. The appellant has not demonstrated that the trial court abused its discretion or that he was prejudiced by the denial of a continuance.
The appellant’s sixth point for reversal is that the court erred in admitting into evidence the weapons removed from the purses of Laura Dickinson and Sonya Orlovic. The appellant alleged that the weapons were not relevant to any charge filed against him and that the prejudice greatly outweighed the probative value. However, the State, citing Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982), contends that the weapons were properly admissible as part of the overall circumstances of the crime. In Harshaw, a defendant objected to the admission of testimony of acts that had been committed by three others. The Supreme Court found the testimony admissible because it linked the defendant to the crime and was therefore relevant to him. The Court quoted the following from Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977):
[W]hen acts are intermingled and contemporaneous with one another, evidence of any or all of them is admissible to show the circumstances surrounding the whole criminal episode.
Harshaw at 485, 631 S.W.2d at 303. We believe the rule in Harshaw controls here and, therefore, agree that the trial court correctly admitted the weapons seized from Dickinson and Orlovic.
Appellant’s seventh point for reversal is that the trial court erred in admitting documents pertaining to chain of custody of the methamphetamine, because the documents had not been disclosed to appellant in discovery. Although we find in the abstract of record that appellant objected to admission of the documents, his objection was not based on these grounds. It is well settled that appellant cannot change his grounds for objection on appeal. Wilson v. State, 9 Ark. App. 213, 657 S.W.2d 558 (1983).
Appellant’s eighth point for reversal is that the trial court erred in allowing Doyne Branch to give opinion evidence without being qualified properly as an expert witness. Branch is an agent with the United States Treasury Department’s Bureau of Alcohol, Tobacco and Firearms. He testified that the weapon removed from under appellant’s coat in the back seat of the car was an automatic weapon. Appellant based his objection on the fact that Branch’s familiarity with firing the weapon did not qualify him to testify about design characteristics and functions of automatic weapons. Rule 702 of the Arkansas Uniform Rules of Evidence provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Mr. Branch testified that he had worked for the Bureau for thirteen years. He testified that he had attended Automatic Weapons School, was qualified to use an automatic weapon, and had fired between twenty and twenty-five different automatic weapons. Whether a witness qualifies as an expert is a matter to be decided by the trial court, and in the absence of abuse of that discretion, we will not reverse the trial court’s decision. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980); Harper v. State, 7 Ark. App. 28, 643 S.W.2d 585 (1982). We are unable to see that the trial court abused its discretion in finding Branch an expert or in permitting him to testify that the weapon in question was an automatic weapon.
Appellant’s last point for reversal is that the trial court erred in denying appellant’s motion for a directed verdict because the State failed to show that the weapon that was the basis of one of the charges against appellant was actually an automatic weapon. The statute under which appellant was charged provides:
“Machine Gun” applies to and includes a weapon of any description by whatever name known, loaded or unloaded, from which more than five [5] shots or bullets may be rapidly, or automatically, or semi-automatically discharged from a magazine, by a single function of the firing device.
Ark. Stat. Ann. § 41-3157 (Repl. 1977).
Two people, Sgt. Buck Bailey and Branch, both test fired the weapon, according to Branch’s testimony. The gun would only fire one time. It would not eject a round or fire automatically. Once the spent shell was manually ejected, the gun would fire again. However, Branch explained that the gun was loaded with “a 30-caliber luger which is a different size than the 30 mouser. The bullets would fit in the chamber. . .and would fire but it would not work automatically.” Branch obtained the right caliber of ammunition from headquarters in Washington, D.C., but the gun would still fire only one time. He explained that stale ammunition was a likely explanation for the failure of the gun to operate automatically. He said the ammunition was some that had been confiscated and was probably too old to work. He opined that with proper ammunition, he had “no doubt that it would fire fully automatic.”
We believe the trial court properly denied a directed verdict under these facts. In addition to his explanation that stale ammunition would account for the gun’s not operating properly, Branch also testified that he could find no other, obvious reason for the gun’s not working properly. Having qualified as an expert, Branch’s testimony and opinion established at least a fact question for the jury concerning whether the seized weapon was a machine gun. Appellant offered no evidence to rebut Branch’s opinion, and the jury clearly resolved that fact question against the appellant.
Affirmed.
Cracraft, C.J., and Cloninger, J., agree.
Supplemental Opinion on Denial of Rehearing November 7, 1984
680 S.W.2d 110
1. Appeal & error — rehearing — full consideration on appeal. — The appellate court denies appellant’s petition for rehearing on one point because that point was fully considered on appeal.
2. CRIMINAL PROCEDURE — DISCOVERY — FAILURE OF PROSECUTOR to make proper discovery answers. — A prosecuting attorney’s failure to make proper discovery answers, although serious, is not reversible error absent a showing of prej udice to the defendant.
3. Criminal procedure — discovery — trial court’s discretion. — Under Ark. R. Crim. P. 19.7 the trial court has the discretion to exclude or to admit material not disclosed through discovery based upon the likelihood that prejudice will result.
Petition for Rehearing; denied. | [
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Melvin Mayfield, Judge.
Appellant has appealed a Workers’ Compensation Commission decision holding that a joint petition settlement, approved by the Commission, eliminates the Commission’s jurisdiction over any additional claim for the same injury or any results arising from that injury.
Appellant sustained a broken hip in a compensable accident that occurred on November 30,1981. In 1972, while. working for a different employer, she lost several fingers in another work-related accident and was given a 100% impairment rating to her hand. After she filed a claim for her hip injury against the employer, the carrier, and the Second Injury Fund, a joint petition agreement with the employer and carrier was filed and granted by an administrative law judge. A hearing was then held to determine whether claimant was entitled to additional benefits from the Second Injury Fund. The law judge held that he had jurisdiction to hear the claim but that there was no Second Injury Fund liability because the second injury was independently disabling. On appeal the Commission reversed the law judge and held that it had no further jurisdiction over the claim because of the allowance of the joint petition.
Even though claimant’s joint petition specifically stated that she did not waive any rights against the Second Injury Fund and even tnough such a provision was also included in the administrative law judge’s opinion approving the joint petition, the Commission held that Ark. Stat. Ann. § 81-1319(1) (Repl. 1976) effectively eliminated any further jurisdiction of the Commission. That statute provides:
(1) Joint petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction oyer any claim for the same injury or any results arising from same. [Emphasis added.]
The unanimous opinion of the Commission states: “We strongly feel that Ark. Stat. Ann. § 81-1319(1) is controlling and that the clear and unambiguous language of said statute prohibits the claimant in this case from now proceeding against the Second Injury Fund.” Appellant argues that the statutory language means that the joint petition is final only as to the parties who participated in it, and that the Commission’s interpretation violates the purpose of the law. We do not agree. The statute is clear and unambiguous in stating that a joint petition eliminates the Commission’s jurisdiction over the claim. Any other interpretation would have to ignore the plain meaning of the words used by the legislature. We think the Commission’s interpretation was correct.
Affirmed.
Cooper and Cloninger, JJ., agree. | [
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Tom Glaze, Judge.
Appellants were convicted in Saline County Circuit Court of terroristic threatening in the first degree, a violation of Ark. Stat. Ann. § 41-1608 (Supp. 1983). They raised three points for reversal: (1) the trial court erred by refusing to allow the felony information to be read to the jury; (2) the charge of terroristic threatening is not supported by the proof; and (3) the trial court erred by refusing to give an instruction to the jury on voluntary intoxication as a defense for appellant Hershell Davis.
The essential fact of this case, the commission of the terroristic threat by the appellants, is not disputed by them. The terroristic threat occurred during a car chase on a dark, deserted, winding county road. According to the testimony of the victims, the appellants tried to run them off the road and into a ditch. At the end of the three-mile chase, appellant Jim Davis pulled his van alongside the victims’ automobile, and appellant Hershall Davis leaned out of the van and struck the automobile twice on its roof with a leg from a chair. Appellants testified that they thought they were being followed by some men who had, earlier in the evening, attacked them with bottles and a club at a local parking lot. They stated that appellant Hershell Davis struck the car to ward off another attack by their former assailants. The occupants of the car were, in fact, a woman and her three children, the youngest an eight-year-old boy. The terror that gripped this innocent family during this ordeal is manifest in their testimony. They managed to evade the appellants and made their way home, where they called the sheriff’s department.
Deputy sheriffs arrested the appellants at a local pool hall. The arresting officer testified that appellant Hershell Davis “appeared to be a whole lot” intoxicated. Appellant Hershell Davis testified that he was “pretty bad drunk” on the night in question. Appellant Jim Davis stated that he was not drunk during this time.
Appellants cite no authority that directly supports their first argument for reversal — the trial court’s refusal to allow the felony information to be read to the jury. The appellants argue that if the jury had been made aware of the statements contained in the information, then they could have used the information as a prior inconsistent statement to show inconsistencies in the victims’ testimonies. Appellants cite two cases that hold it is not error for the prosecutor to read the felony information to the jury. Graham v. State, 202 Ark. 981, 154 S.W.2d 584 (1941); Malone v. State, 202 Ark. 796, 152 S.W.2d 1019 (1941). Such cases, however, simply fail to support appellants’ argument. Assignment of error by counsel in briefs unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that the assignments of error are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). In any case, the appellants had the opportunity to show inconsistencies in the victims’ testimonies on cross-examination; their failure to do so cannot be attributed to the trial court’s refusal to allow the information to be read to the jury.
Appellants also argue that the charge of terroristic threatening was not supported by the proof adduced by the State. Ark. Stat. Ann. § 41-1608 states that a person commits terroristic threatening in the first degree if, with the purpose of terrorizing another person, he threatens to cause death or serious physical injury or substantial property damage to the property of another person. The Commentary to § 41-1608 states that its main application is to conduct creating a prolonged sense of terror. Appellants argue that while they may have sparked a short-lived sensation of terror in the woman and her children, the State did not prove that they instilled a prolonged sense of terror in them. In essence, appellants argue that the State charged them with terroristic threatening but, instead, proved that they had committed assault in the third degree [Ark. Stat. Ann. § 41-1607 (Repl. 1977)]. The short answer to this argument is that it was flatly rejected in Warren v. State, 272 Ark. 251, 613 S.W.2d 97 (1981). There, the Arkansas Supreme Court interpreted § 41-1608 and held:
While we strictly construe a penal statute, we find no language which requires terrorizing over a prolonged period of time.
Id. at 233, 613 S.W.2d at 98.
In Warren, the defendant was convicted of terroristic threatening because he pointed a rifle at two men-and threatened to shoot them. If this conduct was prolonged enough to sustain a conviction of terroristic threatening, then, a fortiori, the appellant’s conduct in this case — a car chase lasting over three miles in which appellants tried to run the victims into a ditch — was certainly prolonged enough.
Appellant Hershell Davis’ final allegation of error below is the trial court’s refusal to give the jury an instruction on voluntary intoxication as a defense for him. In Arkansas, voluntary intoxication is a defense to a crime requiring a specific intent where the accused was so drunk as to be incapable of forming the necessary intent. Varnedare v. State, 264 Ark. 596, 573 S.W.2d 57 (1978). Because terroristic threatening requires a purposeful mental state, the defense of voluntary intoxication is available to appellant Hershell Davis. See Johns v. State, 6 Ark. App. 74, 637 S.W.2d 623 (1982). This defense is available only if there is evidence from which a jury might find that appellant was intoxicated to such a degree as to be unable to form the requisite intent to commit the crime. In this respect, appellant was required to show that he was incapacitated by drinking alcohol — not merely that he drank alcohol — to obtain an instruction on voluntary intoxication as a defense. Bailey v. State, 263 Ark. 470, 565 S.W.2d 603 (1978); Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 324 (1982). Appellant’s evidence proves only that he had been drinking beer and that he appeared intoxicated to the officer who arrested him one hour after the chase incident. Appellant’s own testimony proves that he was not incapacitated at the time the crime was committed. At trial, he gave a detailed account of the events of the evening before, during and after the terroristic threat. During the car chase, appellant Hershell Davis had sufficient physical coordination to lean halfway out of a van moving at forty-five miles per hour and twice club the victims’ automobile with a chair leg. Because appellant Hershell Davis did not sustain his burden of proof on this point, the trial court did not err in refusing to give the jury an instruction on voluntary intoxication.
In sum, we affirm the decision below.
Affirmed.
Cracraft and Corbin, JJ., agree.
The Arkansas Criminal Code defines “purposefully” as follows: a person acts purposefully with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Stat. Ann. § 41-203(1) (Repl. 1977). | [
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George K. Cracraft, Judge.
The sole issue on this appeal from a declaratory judgment is what the rights are of the junior liénholder who has not been made a party to an action foreclosing a first mortgage lien after the sale. The trial court declared that none of the rights of the junior lienholder were affected by the foreclosure to which he was not a party and after the sale became prior and paramount to those of the purchaser. While we agree that a junior lienholder was a necessary party to that action and his rights were not immediately affected by the decree, we do not agree that his lien became paramount to the rights of the purchaser.
The matter was submitted to the trial court on stipulated facts. On June 24, 1980 Larry W. Treadwell and Elaine Treadwell executed in favor of the appellants a first mortgage on a tract of land to secure the unpaid portion of the purchase price. The Treadwells defaulted on the note and appellants commenced this action in foreclosure on March 11,1981. No lis pendens was filed. On March 25,1981 the appellee Lenora Titsworth obtained a judgment for personal injuries against the Treadwells. The appellants were not aware of the judgment and did not make the appellee a party to the foreclosure action. The foreclosure decree was entered in October 1981 and the land was sold at judicial sale to the appellants on November 5, 1981 for the full amount of debt, cost and attorney’s fees. The appellee had no knowledge of the foreclosure action until after the sale.
On learning of the judgment in favor of appellee the appellants sought to bring her into the action but that motion was denied because more than ninety days had expired since the entry of the decree. Appellee subsequently caused a writ of execution to be issued on the property. The appellants then brought this action for a declaratory judgment to determine the rights and liabilities of the respective parties and seeking a stay of further proceedings in execution pending that determination. When the trial court declared that the right of the junior judgment creditor was superior to that of the appellants, this appeal followed.
It is well settled that, where the owner of real estate has executed a first mortgage on his property, after maturity and before his equity of redemption is foreclosed in equity he retains only the equitable right to perform the conditions of the mortgage. The equity of redemption is considered to be the real and beneficial estate, tantamount to the fee. It is descendible by inheritance and alienable by deed or mortgage the same as if it were an estate of inheritance, and may be taken on execution by judgment creditors. Any person who acquires a claim on the equity of redemption has the same right as the original mortgagor to redeem the legal title in order to protect his interest. State, Use of Ashley & Watkins v. Lawson et al, 6 Ark. 269, 2 Eng. 269 (1846); German National Bank v. Barham, 57 Ark. 533, 22 S.W. 95 (1893). Unquestionably junior lienholders ought to be made parties to the foreclosure of the first mortgage in order both to protect their rights and to foreclose their interest in the equity of redemption. Where, as in this case, a junior lienholder is not made a party to foreclosure of the first mortgage, he is not bound by the decree and neither his right to redeem nor his claim on the equity of redemption is extinguished. His status is the same as if there had been no foreclosure action. Smith v. Simpson, 129 Ark. 275, 195 S.W. 1067 (1917).
It is well settled that in such circumstances a subsequent lienor or grantee of the equity of redemption can only claim the right to redeem from the foreclosure sale. This right must be exercised by tendering into the court the entire amount of the debt for which the mortgage was foreclosed within a reasonable time of the sale. Skelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S.W.2d 425 (1946); Harrison v. Bank of Fordyce, 178 Ark. 760, 12 S.W.2d 400 (1929); Prouty v. Guaranty Loan & Trust Co., 174 Ark. 12, 294 S.W. 362 (1927); Smith v. Simpson, 129 Ark. 275, 195 S.W. 1067 (1917); Longino v. Ball-Warren Commission Company, 84 Ark. 521, 106 S.W. 682 (1907); Livingston v. New England Mtge. Security Co., 77 Ark. 379, 91 S.W. 752 (1906); Dickinson v. Duckworth, 74 Ark. 138, 85 S.W. 82 (1905); Allen v. Swoope, 64 Ark. 576, 44 S.W. 78 (1898).
The difficulty in each case arises in determining how long this right to redeem by a junior lienholder continues to exist. In Skelly Oil Co. v. Johnson, supra, it was stated that in the absence of a statute equity will allow redemption “within a reasonable time,” and what is reasonable depends on the pleas interposed, the facts and equities in each case.
It is clear from these cases that a junior lienholder such as this appellee who comes into court for the purpose of asserting his lien upon the equity of redemption must first exercise his right to redeem by tendering the proceeds of the entire debt for which the first mortgage was foreclosed within a reasonable time to be set by the court. This cause is therefore reversed and remanded for a determination by the court of a reasonable time during which this right may be exercised and entry of a decree which provides that if that right is not exercised within a reasonable time, the title acquired by the appellants at the foreclosure sale will be vested in them free and clear of the judgment lien of the appellee.
Reversed and remanded.
Cooper and Cloninger, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
Sheldon Rand was one of several partners who owned a shopping center in Little Rock. The Fausett Company was the rental agent for the shopping center and also acted as the real estate agent for the partnership when the shopping center was sold in October of 1979.
After the sale, Rand brought suit against Fausett in the Circuit Court of Pulaski County alleging that he was entitled to $33,600.00 as his pro rata share of the selling price which Fausett had collected but refused to distribute to him.
Fausett’s answer alleged that one of the tenants of the shopping center was Shelly Rand’s Phase II, Inc., a store owned by Rand which had gone out of business owing the shopping center $8,265.63 for monthly rentals and other fees and dues, and that Rand had agreed this amount could be deducted from his portion of the money from the sale of the shopping center. The answer also alleged that even if Phase II was a corporation Rand conducted the business in such a manner that its corporate entity should be disregarded and Rand held individually responsible for the corporation’s debt to the shopping center.
Rand subsequently filed a motion for summary judgment which was granted by the court and from which Fausett brings this appeal.
Fausett points out the familiar rules of law pertaining to motions for summary judgment: Summary judgment should be allowed only when it is clear there is no issue of fact to be litigated; the burden is upon the moving party to demonstrate that there is no genuine issue of material fact; and even if the facts are not in dispute, if reasonable minds might differ as to conclusions to be drawn from those facts, summary judgment may not be entered. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W. 2d 660 (1975); Brown v. Aquilino, 271 Ark. 273, 608 S.W. 2d 35 (Ark. App. 1980).
It is Fausett’s argument that there are genuine issues of fact as to whether Rand agreed to the deduction of the amount owed by Phase II from his partnership distribution and as to whether Rand should be individually responsible for the obligations of Phase II on the basis that there should be a disregard of the corporate entity of Phase II.
In deciding the motion for summary judgment the trial court had before it in addition to the pleadings, answers to interrogatories, answers to requests for production of documents, responses to requests for admissions, affidavits, depositions, and many exhibits attached to the affidavits and introduced as part of the depositions. From these matters, the evidence with regard to Fausett’s contention that Rand agreed to the deduction of the amount owed by Phase II, can be summarized as follows:
Edward K. Willis, president of Fausett Company, testified in a deposition taken May 29, 1980, that there was a sale under consideration in 1978. At that time he talked with Rand and they agreed that if the sale could be closed at the price that was in the offer, the sellers would guarantee the rents and other expenses owed by Phase II. The resolution of the financial matters involved would be accomplished by the deduction of an amount equal to approximately @8,000.00 from Rand’s proceeds. That was a negotiated amount and represented roughly half of the money owed by Phase II at that time. That sale did not go through, but the shopping center was subsequently sold to a different buyer under an almost identical set of circumstances. Willis testified that when this subsequent sale was being negotiated he talked to Rand and the terms for the previous sale were still agreeable as to the money owed by Phase II. After the sale was closed in October or November of 1979, he talked to Rand over the telephone about the final distribution of the proceeds due him from the sale. He said Rand told him to put it in a letter and a letter from Willis to Rand was made an exhibit to the deposition. The letter said that pursuant to their telephone conversation of that day Rand’s share of the distribution from the sale of the shopping center was $33,600.00 less delinquent rents due by Phase II in the amount of $7,621.88, delinquent common area maintenance fees of $40.00, and delinquent merchants’ association dues of $603.75, all of which totaled $8,265.63, leaving a net amount due to Rand of $25,334.37.
Willis further testified in his deposition that Rand was entitled to $25,334.37 but he did not get it because he did not sign the letter of December 3, 1979, which says in the final paragraph: “By our respective signatures, we are releasing any and all claims we have or may have in connection with the Galleria partnership or your lease with the Galleria Shopping Park.” Willis said the letter was mailed to Rand because Willis wanted Rand’s signature to acknowledge that the mathematical computations were correct.
In an affidavit attached to Rand’s motion for summary judgment he admitted receiving the letter of December 3, 1979, but said the $8,265.63 was not his obligation but the obligation of Phase II.
We think the above evidence presents a genuine issue of fact. Rand contends the Statute of Frauds, Ark. Stat. Ann. § 38-101 (Repl. 1962), applies to any agreement to deduct Phase II’s obligations from his share of the proceeds of the sale. It is our view, however, that the issue presented by the evidence is whether there was a new and original undertaking by Rand. Such an undertaking would not come within the provisions of the Statute of Frauds and since it would result in the sale of the shopping center there would be consideration to both Rand and Fausett. Rand would get his portion of the selling price but would give up the amount deducted. Fausett would receive the real estate agent’s commission but according to the evidence would have to advance the amount owed by Phase II so the sale could be closed.
In Tyson v. Horsley, 141 Ark. 545, 217 S.W. 776 (1920), there was testimony that Tyson had a claim on the land of John Elby for the payment of Elby’s debt to him and that Horsley promised if Tyson would release his claim and allow Horsley to sell Elby’s land, Horsley would pay Tyson the amount Elby owed him. Acting upon this agreement, Tyson released Elby and charged the account to Horsley. The court held that this evidence made an issue for the jury as to whether or not there was an original undertaking by Horsley upon a sufficient consideration to pay Tyson the debt due him by John Elby, and said:
In Jonesboro Hardware Co. v. Western Tie & Timber Co., 134 Ark. 543, we said: “We have several times held that a parol promise to pay the debt of another is not within the statute of frauds when it arises from some new and original consideration of benefit or harm moving between the newly contracting parties. We have also held that a waiver of legal right is a sufficient consideration to support a promise to pay the debt of another.”
See also Brown v. Morrow, 124 Ark. 480, 187 S.W. 449 (1916) and Frame v. Whittam, 181 Ark. 768, 27 S.W. 2d 990 (1930).
We find, therefore, that the summary judgment should be reversed and the case remanded for a trial on the issue above discussed but we do not find that there is an issue to be litigated as to whether the corporate entity of Phase II should be disregarded and Rand held individually responsible for its obligations.
In that regard there is evidence in the record that Shelly Rand’s, Inc. is a sixteen year old corporation with two shareholders. Sheldon Rand owns ninety-seven percent of the stock and his wife owns three percent. He is President. His wife is Secretary and Treasurer. There are no other officers or directors. The corporation owns and operates seven ladies’ ready-to-wear stores in the Central Arkansas area. Two of them operate under the name Lisa’s Closet and the rest operate under the name Shelly Rand’s.
Phase II is a separate corporation. Its correct legal name is Phase II, Inc. That was the name of the tenant in the shopping center lease. The trade name listed in the lease, however, was Shelly Rand’s Phase II but the sign at the store and the advertising just said Phase II. In Rand’s deposition he testified that Phase II was formed because it was a new type of business and he wanted to limit his own liability and the liability of the Shelly Rand corporation. Fausett’s president, in his deposition, said he knew Phase II was a corporation but that Rand was a one-man show, operated several corporations, and operated them as he saw fit.
In its argument that the evidence presents a genuine issue of fact as to whether the corporate entity of Phase II should be disregarded and Rand held individually responsible for its obligations, Fausett cites three cases. Black & White, Inc. v. Love, 236 Ark. 529, 367 S.W. 2d 427 (1963); Plant v. Cameron Feed Mills, 228 Ark. 607, 309 S.W. 2d 312 (1958); and Rounds & Porter Lumber Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1 (1949). In each of these cases one corporation was held liable for the obligations of another corporation. Of course, our question here is whether there is a genuine issue of fact concerning the responsibility of Sheldon Rand — an individual — for the obligations of Phase II. We note, however, that each of the cited cases contains the statement: “It is only when the privilege of transacting business in a corporate form has been illegally abused to the injury of a third person that the corporate entity should be disregarded.” That statement is in agreement with three cases cited by Rand which refused to hold a stockholder liable for the obligation of a corporation. In each of those cases the court held that such liability will be imposed only where the corporate structure has been illegally or fraudulently abused to the injury of a third person. Banks v. Jones, 239 Ark. 396, 390 S.W. 2d 108 (1965); Parker, Inc. v. Point Ferry, Inc., 249 Ark. 764, 461 S.W. 2d 587 (1971); and Thomas v. Southside Contractors, Inc., 260 Ark. 694, 543 S.W. 2d 917 (1976). For a general discussion, see 1 Fletcher, Cyclopedia of the Law of Private Corporations, § 41.3 (Supp. 1980).
We do not find any evidence that the corporate form of Phase II was illegally or fraudulently abused by Rand to any injury alleged by Fausett in this case. In the first place, the evidence in the record shows that Fausett is a corporation and that the corporation was one of the members of the partnership which originally owned the shopping center. But Fausett was not Phase II’s landlord and Phase II has never owed Fausett any rent. Fausett is not here as a partner. Its president testified, “We’re not suing Mr. Rand for back rent due, whether it’s Phase II, him corporately or personally or whatever.” And in the second place, Fausett — whether as one of the partners owning the shopping center or as the rental agent for the owners — knew that Phase II was a corporation. Fausett’s president testified, “In my mind there is no question that we have a tenant that’s Phase II, Inc., and that we’re dealing with a corporation.” Regardless of his testimony that Mr. Rand was a one-man show, the president of Fausett testified, “We should have required a personal endorsement. ... And it was a mistake, obviously now, not to have done that.”
The case must be reversed for a trial on the first issue discussed. As the record stands there is no genuine issue of fact to be tried on the second issue discussed. Also, since Fausett admits Rand is entitled to $25,334.37 of the money it is holding from Rand’s share of the distribution from the sale of the shopping center, there is no issue to be tried with regard to that amount. Under Rule 56(d) of the Rules of Civil Procedure if judgment is not rendered on a motion for summary judgment the court should “make an order specifying the facts that appear without substantial controversy” and upon trial “the facts so specified shall be deemed established.” Young, Adm’r. v. Dodson, 239 Ark. 143, 388 S.W. 2d 94 (1965); Bonda’s Veevoederfabriek, Etc.v. Provimi, Inc., 425 F. Supp. 1034 (1976).
Reversed and remanded for further proceedings consistent with this opinion. | [
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James R. Cooper, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission which affirmed the Administrative Law Judge’s determination that, at the time of his death, Jerry Clanton was acting as an employee of the Benton County Office of Emergency Services and that therefore the State of Arkansas was liable for Workers’ Compensation benefits for his widow and two minor children.
On April 7, 1977, Mr. Clanton and Mr. Charles Hardy, Pea Ridge City Administrator, and also a volunteer fireman were contacted at the Pea Ridge City Hall by Sam Spivey, the Fire Chief, and told that water was needed to fight a grass or brush fire at a farm some 4 1/2 miles out of town. The owner of the farm was a subscriber to the volunteer fire department and paid a monthly fee on his city water bill as did other subscribers. Mr. Spivey testified that when he told Hardy and Clanton this Clanton volunteered to take the fire truck to the fire. Spivey gave him directions by walkie-talkie and when Clanton arrived at the fire he started the pump at the back of the truck. The truck began to roll down a hill, Clanton chased it, and he was crushed against a tree by the truck, sustaining injuries which caused his death two days later.
At the time of his death, Mr. Clanton was a full-time salaried employee of the City of Pea Ridge. He was also a member of the Pea Ridge Volunteer Fire Department, and was a qualified and registered emergency services worker with the Benton County Office of Emergency Services.
The question before the Administrative Law Judge and the full Commission was whether the Office of Emergency Services, State of Arkansas, or the City of Pea Ridge and its carrier, Home Insurance Company, was liable for the payment of benefits to the surviving widow and two minor children.
The City of Pea Ridge, through Home Insurance Company (both appellees here), provides Workers’ Compensation insurance for certain city employees. Volunteer firemen are not included. Arkansas Statute Annotated § 11-1955 (c) (Repl. 1976) provides as follows:
For the purpose of Workmen’s Compensation coverage in cases of injury or death of an individual, all duly registered and qualified emergency service volunteer workers shall be deemed State employees within the meaning and requirements of Act 462 of 1949 as amended by Act 373 of 1951 [§§ 13-1402 — 13-1407, 13-1409 — 13-1413] and shall receive compensation, and their survivors shall receive death benefits in like manner as regular State employees for injury or death arising out of and in the course of their activities as emergency services volunteer workers.
The City of Pea Ridge and Home Insurance denied coverage on the premise that Mr. Clanton’s death arose out of and in the course of his duties as an emergency services worker, and therefore he was covered as a State employee. The State argued that Mr. Clanton’s death arose out of and in the course of his duties as a full-time salaried employee of the City of Pea Ridge.
The Administrative Law Judge found that on April 7, 1977, the relationship of employer-employee existed between the deceased and the Benton County Office of Emergency Services and that his death arose out of and in the course of his duties as an emergency services worker. The fall Commission agreed with the Administrative Law Judge and affirmed his decision.
The State of Arkansas, through the Public Employees Claims Division, argues that the decision that at the time of his death-Mr. Clanton was acting as an emergency services worker is not supported by substantial evidence. Appellant further argues that the evidence is clear that Mr. Clanton’s activities at his death were a function of a department of the City of Pea Ridge.
On appeal we must view the evidence in the light most favorable to the Commission’s decision and uphold that decision if supported by substantial evidence. Warwick Electronics v. Devazier, 253 Ark. 1100, 490 S.W. 2d 792 (1973). Before we may reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have reached the conclusion arrived at by the Commission. Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W. 2d 692 (Ark. App. 1980).
In this case Mr. Clanton had several jobs with different supervisors. He was an employee of the Pea Ridge Water, Street and Sewer Department, but was on call 24 hours a day to do whatever was needed to be done for the city. He was a volunteer fireman, serving under Mr. Spivey, the volunteer fire chief. He was also a member of the Benton County Office of Emergency Services under the direction of Mr. True, County Director.
At the time of his death, Mr. Clanton was four and one-half miles out of Pea Ridge, on the land of Mr. Webb, a subscriber to the Pea Ridge Fire Service, in possession of a fire truck owned by the City of Pea Ridge, he was there in response to a request by Mr. Spivey, the fire chief. No person with supervisory authority over him was present. Mr. Clanton turned on the pump to supply water to the firefighters, and was injured moments later when he tried to stop the runaway fire truck. Mr. Clanton died two days later from these injuries.
In Southern Farm Bureau Cas. Co. v. Tuggle, 270 Ark. 106, 603 S.W. 2d 452 (Ark. App. 1980), this Court outlined several factors to be considered in determining whether an employer-employee relationship exists:
(1) the right to terminate employment before the job is finished;
(2) the amount of compensation being calculated on a time basis;
(3) which party furnished materials and equipment;
(4) and the employer’s ability to exercise some degree of control of the manner of doing the work.
Both parties agree that these factors provide the answer to the issue in this case, although they obviously disagree as to what the answer is. In the normal case where the question arises as to the existence of the employer-employee relationship, the four factors enumerated would be helpful. Here, however, neither party denies the existence of the relationship with some employer — they disagree as to which employer.
At the time of his death, Mr. Clanton could have been fired by the city, relieved as a volunteer fireman, or taken off the list of emergency services workers, with each action being taken by a different supervisor.
His pay was not calculated on a time basis, but he could have drawn $3-00 per run if he went to the site as a volunteer fireman. He was paid a monthly salary by the City of Pea Ridge.
The fire truck belonged to the City of Pea Ridge, but was used by the volunteer fire department under the direction of the fire chief, who was also a volunteer.
As to control, we note that his immediate supervisor in the water, sewer and street department, the mayor, city manager, or fire chief could have exercised control over him at the time of his death had they been present. Likewise, had the director of emergency services been present, he could have exercised a degree of control over Clanton.
In short, consideration of these four factors in iight of the facts of this case is not very helpful.
The Emergency Services Act, Ark. Stat. Ann. § 11-1936(a) (Repl. 1976) defines emergency services as:
... the preparation for and carrying out of all emergency functions, by existing State and local governments other than functions for which military forces are primarily responsible, to prevent, minimize and repair injury and damage resulting from disasters caused by enemy attack, natural causes, man-made catastrophes or civil disturbances. ...
Subsection (b) of the same act provides:
“Disaster” means any tornado, storm, flood, high water, earthquake, drought, fire, radiological incident, air or surface borne toxic or other hazardous material contamination, or other catastrophe, whether caused by natural forces, enemy attack or any other means, occurring anywhere in the State, which, in the determination of the Governor, is or threatens to be of sufficient severity and magnitude to warrant State action or to require assistance by the State to supplement the efforts and available resources of local governments and relief organizations in alleviating the damage, loss, hardship or suffering caused thereby, ....
As mentioned earlier, the Act provides workers’ compensation coverage as State employees for emergency service workers injured or killed in the performance of emergency service duties. The Commission decided that Mr. Clanton’s death was the result of and in the course of his employment as such a worker. After analyzing the facts, and the Act, we conclude that there is no substantial evidence in the record to support this finding by the Commission. We reach this result for two reasons.
First, Mr. Clanton’s activities prior to his death did not involve a response to directions from the emergency services director; there had been no disaster declared, and, in fact, there was no disaster or catastrophe as contemplated by the Emergency Services Act. We recognize that firefighting is specifically included in the list of functions which are designated as emergency services, but from a reading of the Act it is clear that this type fire was not the type contemplated by the Act. The testimony revealed the fire to have been a small grass or brush fire, covering two or three acres. There was no testimony indicating that it threatened lives or substantial property. The fire could have become such a threat, and possibly could have eventually reached the level of a “catastrophe” or “disaster” but it had not done so at the time of the accident. We do not believe that the Legislature intended, by the inclusion of “firefighting” in the list of emergency services, to make every fire, of whatever size, intensity, and location, a “disaster” under the Emergency Services Act.
Second, at the time of his death, Mr. Clanton was not involved in firefighting, either as an emergency services worker or as a member of the Pea Ridge Volunteer Fire Department. He was present at the fire, during normal working hours for the city, following a request by the volunteer fire chief, made in the presence of the City Administrator. He was killed while trying to preserve the city-owned equipment from damage. The Arkansas Supreme Court, in Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S.W. 2d 468 (1964), recognized that the protection of the employer’s property was a legitimate duty of an employee. In that case, the employer went outside his employer’s service station to secure some property during a storm, and he was injured when a gust of wind blew him into the air, carrying him some seventy-five feet before dropping him on the concrete. In that case, the Court stated:
... Certainly, there was a duty upon Adams, as an employee, to protect the property of his employer, and the protection that Adams was seeking to afford, could not have been done without leaving the building. The acts being performed were as much a part of his duties as though he had been waiting on a customer when the wind struck.
In Bell v. Lindsey Wilson College, 490 S.W. 2d 145 (Ky. 1973), the Kentucky Court of Appeals held that injury or death resulting from an effort by an employee to save or protect the employer’s property arises out of and in the course of his employment. In that case, the employee was working as a truck driver for a college. He was directed to take the college-owned truck with a load of college-owned lumber to the college president’s farm and store it in a barn on the land. The employee lived on the farm and sharecropped. While burning off a field, an activity which was personal to him, the fire spread and engulfed the barn. The employee got the keys to the truck and attempted to save it. He was killed trying to remove the truck from the barn. The Court found that his death arose but of and in the course of his employment with the college, and referred to Larson, Workmen’s Compensation Law, Vol. I, § 28.11, p. 452.71, which states:
Under familiar doctrines in the law relating to emergencies generally, the scope of an employee’s employment is impliedly extended in an emergency to include the performance of any act designed to save life or property in which the employer has an interest. ... It is too obvious for discussion that emergency efforts to save the employer’s property from fire, theft, runaway horses, destruction by strikers, or other hazards are within the course of employment.
Ordinarily, our procedure would be to remand the case to the Commission for a determination as to whether Mr. Clanton was acting as an employee of the City or of the volunteer fire department, but in this case the Commission could make only one finding — that Mr. Clanton was protecting the property of his employer at the time of his death. Therefore, the case is reversed and remanded to the Commission with directions to enter an order holding the City of Pea Ridge and its carrier, Home Insurance Company, liable for the payment of workers’ compensation benefits to Mr. Clanton’s widow and children in the manner prescribed by law. See Doyle’s Concrete Finishers v. Moppin, 268 Ark. 167, 594 S.W. 2d 243 (1980).
One other point was raised by appellee and must be dealt with. Appellee argues that, since Mr. Clanton was a municipal employee, the action of the Commission is not subject to judicial review under the provisions of Ark. Stat. Ann. § 81-1351 (Repl. 1976) as it existed at the time the claim was filed. That statute did provide that the action of the Commission with respect to a claim by an employee of a municipality was final and not subject to judicial review. The Legislature amended the statute by Act 597 of 1979 and deleted the section prohibiting judicial review in such cases. This claim was filed in 1977, and the Commission issued its opinion in October of 1980. Appellee urges that this modification of the statute affects substantial rather than procedural rights, and that a judicial review would violate the prohibition against such changes in substantial rights found in Ark. Stat. Ann. § 1-104 (Repl. 1976). We disagree. Appellee has cited us to no authority supporting the contention that this change affects substantial rights, and we do not think that it does. The change was a procedural one affecting the manner in which one could enforce the substantive rights conferred on claimants and employers under the Workers’ Compensation Act.
Reversed and remanded.
Mayfield, C.J., would reverse and remand for the Commission to determine whether Mr. Clanton was an employee of the city or the volunteer fire department. | [
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JOHN B. Robbins, Judge.
Appellant Donnie Eugene Hudson was convicted by a jury on two counts of delivery of a controlled substance (prophylhexedrine) on September 22, 1994. He was sentenced as a habitual offender to five years in the Arkansas Department of Correction on each count, with the sentences to run concurrendy. Appellant contends on appeal that the evidence was insufficient to support the jury’s verdict and that the trial court erred in overruling his motion to dismiss. We find no error and affirm.
In reviewing the sufficiency of the evidence on appeal, we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Ramey v. State, 42 Ark. App. 242, 863 S.W.2d 839 (1993). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. McCullough v. State, 44 Ark. App. 99, 866 S.W.2d 845 (1993).
Frankie Hart, Detective Sergeant of the Rogers Police Department, testified that in 1990 he was working undercover with the 19th Judicial Drug Task Force in the Siloam Springs area. He testified that he made contact with the appellant through a confidential informant, Lee Elmore, on October 8, 1990. On October 12, 1990, Detective Hart and the informant went to the apartment of Stacy Warder, the appellant’s girlfriend, and discussed a drug transaction with the appellant. Detective Hart testified that shortly after he arrived the appellant mixed some water and a powdery substance in a spoon, drew some of the solution into a syringe, and injected the solution into appellant’s left arm. Further testimony indicated that the appellant removed a plastic bag from a basket, located on a shelf in the living room, and handed it to Detective Hart. Hart testified that the bag contained an off-white powdery substance, which the appellant represented to be three-and-a-half grams of methamphetamine. Detective Hart paid the appellant $250.00 for this substance, which later test results revealed to be prophylhexedrine.
On October 22, 1990, Detective Hart informed the appellant that he was interested in purchasing “a couple of eight-balls” of methamphetamine. The appellant contacted Hart by calling him on Hart’s pager the next day, October 23, 1990. Hart went back to Stacy Warder’s apartment and made contact with the appellant. Appellant went to the same shelf and basket in the living room and retrieved three plastic packets. Appellant stated that the packets weighed a total of eight-and-one-half grams. However, Detective Hart brought his own scales to weigh the substance because of the appellant “cheating or shorted” him in the past. Hart’s scales revealed the substance only weighed five grams, and later tests revealed that substance was in fact prophylhexedrine. Hart paid the appellant $250.00 for three-and-one-half grams and the appellant gave Hart the other one-and-one-half grams to make up for another deal that was “short.”
The appellant argues on appeal that the State’s evidence was insufficient because it rested solely on the testimony of Detective Hart. He contends that the testimony of the confidential informant, Lee Elmore, and the appellant’s wife, Retha Hudson, contradicted Hart’s testimony, therefore the evidence was insufficient. However, decisions regarding the credibility of the witnesses, and the weight to be given their testimony, are for the trier of fact to resolve. Neble v. State, 26 Ark. App. 163, 762 S.W.2d 393 (1988). We find that there was substantial evidence to support the jury’s verdicts.
Appellant’s second point is that the trial court erred in failing to dismiss the charges against him. He argues that because the legislature “dropped” prophylhexedrine from the statutory schedule of controlled substances after the date of the offense, the delivery of prophylhexedrine was effectively decriminalized and he could no longer be convicted of the charged offenses. Appellant failed to cite the previous or current statutes that he alleges were changed and “decriminalized” his conduct. We note on this point, however, that there is a general statute that deals with retroactivity, Ark. Code Ann. § 1-2-120(b) (1987), which states:
(b) When any criminal or penal statute is repealed, all offenses committed or forfeitures accrued under it while it was in force shall be punished or enforced as if it were in force, notwithstanding the repeal, unless otherwise expressly provided in the repealing statute.
We find that appellant’s argument has no merit and the motion to dismiss was properly denied.
Affirmed.
Cooper and Stroud, JJ„ agree. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case was injured in the course of his employment with the appellee, Freeland Pulpwood. He filed a claim for benefits and asserted that he was totally and permanendy disabled. After a hearing, the Commission found that the appellant was not totally and permanendy disabled, but had instead sustained a permanent partial disability of 17% to the body as a whole. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in failing to find that he was totally and permanently disabled. We reverse and remand because the Commission’s findings are insufficient to justify the denial of benefits.
When the Commission denies compensation, it is required to make findings sufficient to justify that denial. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). A satisfactory, sufficient finding of fact must contain all the specific facts relevant to the contested issue or issues so the reviewing court may determine whether the Commission has resolved these issues in conformity with the law. Id. The Commission must find as facts the basic component elements on which its conclusion is based. Cagle Fabricating & Steel, Inc. v. Patterson, 309 Ark. 365, 830 S.W.2d 857 (1992).
A finding of fact sufficient to permit meaningful review is a “simple, straightforward statement of what happened . . . not a statement that a witness, or witnesses, testified thus and so.” Wright v. American Transportation, supra, 18 Ark. App. at 21. In the case at bar, the Commission adopted the opinion of the Administrative Law Judge as its own. That opinion is almost exclusively a recitation of testimony, rather than findings based on that testimony. Almost every sentence is preceded by “claimant testified,” “Dr. Callaway opined,” or similar language and, consequently, we are unable to determine the facts on which the Commission relied in reaching its conclusion. Where, as here, the Commission fails to make specific findings of the fact on which it relies to support its decision, reversal and remand is appropriate.
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Pittman and Rogers, JJ., agree. | [
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John E. Jennings, Chief Judge.
Arthur B. Jessie appeals from a divorce decree of the Union County Chancery Court. He argues that the trial court erred in failing to dismiss the complaint for lack of personal jurisdiction over him. He also argues that the trial court lacked subject-matter jurisdiction because his marriage to appellee, Betty Jessie, was void and invalid. We disagree and affirm.
The parties were married in El Dorado, Arkansas, in July 1960. They then moved to Texas. A son, Jeff, was born there in 1961. The family, including her son from a previous marriage, moved frequently in the ensuing years, with her and the boys living at various times in Texas, Kansas, Oklahoma, and Arkansas while appellant worked in those states and in Louisiana, sometimes living with the family and sometimes living at the job site. After a serious illness, Jeff required special care. In 1969 they decided it would be best for Jeff to attend a special school in El Dorado, and the family set up its household there. After a year and a half, the family moved to another house in El Dorado which they rented for two years and then bought. Appellant testified that after the family relocated to El Dorado in 1969, he continued to live and work in Texas and never lived in Arkansas. He testified that he “maintained two households for thirty years” and provided support for his wife and son, visiting them regularly once a month or every six weeks. Appellee testified that appellant would “come in once a week or every two weeks” and she would do his laundry and prepare meals for him to freeze and take back with him.
Jeff died in 1993. In 1994 appellee filed for divorce in Union County, Arkansas. Appellant entered a special appearance and filed a motion to dismiss on the ground that the court lacked personal jurisdiction. He also argued that appellee had failed to obtain a divorce from her prior husband, William Kelly, before marrying appellant and that therefore the parties’ marriage was void. Appellant participated with counsel at a hearing on the motion to dismiss, but did not participate in the hearing regarding the divorce and division of marital property.
The chancellor found that appellant was personally subject to the court’s jurisdiction “as a result of his activities in Arkansas, including ownership of real and personal property in the State of Arkansas, his support of members of his family in the State of Arkansas for an extended period of time and the physical presence of [appellant] within the State on a regular and frequent basis since 1969 until the death of his son in 1993.”
Appellant argues that he is a nonresident of Arkansas and has been for many years, and that when appellee established her present domicile in Union County in 1969, he maintained and continued his established domicile in Texas, where he has continued to reside. He argues that the parties’ last marital domicile was outside of Arkansas, and that he has committed no “acts” in the state sufficient to confer jurisdiction under the long-arm statute.
The question of whether the trial court’s determination of personal jurisdiction over appellant was clearly erroneous must be answered in two parts. First is whether the long-arm statute providing for service of process on nonresidents was complied with. Appellant acknowledges that he was served pursuant to the statute. Our statute, codified at Ark. Code Ann. § 16-58-120 (1987), has been read by the supreme court to provide that any cause of action arising out of acts done by an individual in Arkansas, including matters concerning domestic relations, may be brought here although the defendant has left the state. Bunker v. Bunker, 261 Ark. 851, 552 S.W.2d 641 (1977). Whether the exercise of jurisdiction on the basis of acts done in this state is reasonable depends upon the facts of each individual case, with the principal factors to be considered being the nature and quality of the acts, the extent of the relationship of the defendant to this state, and the degree of inconvenience which would result to the defendant by being forced to stand suit in this state in that particular cause of action. Cotton v. Cotton, 3 Ark. App. 158, 623 S.W.2d 540 (1981).
If state law provides for personal jurisdiction, the next question to be answered is whether the exercise of that jurisdiction comports with federal constitutional requirements of the Due Process Clause of the Fourteenth Amendment. See Kulko v. California Superior Court, 436 U.S. 84 (1978). The constitutional standard for determining whether a state may enter a binding judgment against a non-resident defendant, set forth in International Shoe Co. v. Washington, 326 U.S. 310 (1945), requires that a defendant have certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. An essential criterion in all cases is whether the quality and nature of the defendant’s activity is such that it is reasonable and fair to require him to conduct his defense in that state. This “minimum contacts” test is not susceptible of mechanical application; a determination of “reasonableness” requires that the facts of each case be weighed to determine whether the requisite “affiliating circumstances” are present. See generally, Kulko, supra.
There can be no question that appellant in this case had substantial and regular contacts with the State of Arkansas. He owned real property here. He maintained a car registered in his own name here. He had a checking account here, supported his family here, and maintained his family’s home here. He made regular frequent visits to the family home where he would sometimes stay for several days and nights while his wife did his laundry and prepared two weeks’ worth of meals for him to take back to his trailer and job in Texas. Unlike the “appellant’s glancing presence” in the forum state in Kulko, appellant here “purposefully derive[d] benefits” from his activities in Arkansas, and we cannot conclude that the chancery court’s exercise of jurisdiction over him offends “traditional notions of fair play and substantial justice.”
Appellant also argues that the chancellor should have granted his motion to dismiss on the ground that there was no showing that a divorce decree was ever entered terminating appellee’s prior marriage to William Kelly, thus rendering the parties’ marriage void. The chancellor, in a temporary order, noted that at the hearing on the appellant’s motion, “no proof was submitted by [appellant] as to the invalidity of the marriage.” In the divorce decree, the chancellor found that appellee was married to William Kelly on November 26, 1958, filed an action for divorce on March 7, 1960, and that “no divorce therein was granted.” The decree further stated:
With regard to the challenge of subject matter jurisdiction of this Court, the Court finds that notwithstanding that the marriage of the parties was technically invalid as a result of the failure of the [appellee] to receive a final divorce from her previous husband, that if the invalidity of the marriage was to be asserted as a defense, such a defense would work an inequitable result and constitute a miscarriage of justice. Accordingly, by the conduct and actions of the [appellant], [appellant] is estopped from asserting such a defense, and the Court finds that it does have subject matter jurisdiction over the marriage and the dissolution of the marriage between the parties hereto. Such finding is based upon the extended duration of the marital relationship between the parties hereto for thirty-four (34) years, during which each party believed themselves to be legally and morally bound by matrimony one to the other, including the raising of a child together, the establishment of a home for [appellee] and Jeff Jessie, and the discharge of obligations and duties of a spouse as each party respectively understood those obligations.
Appellant argues that while the principle of estoppel would apply to prevent appellee from challenging the validity of the parties’ marriage, it should not apply to him.
Appellant testified that he first learned that there might have been a question regarding appellee’s prior marriage after she filed for divorce in 1994, when a search of the court records failed to produce a decree of divorce. Introduced into evidence were a verified complaint for divorce filed by appellee against William Kelly, along with a warning order, proof of publication and affidavit, and a copy of the chancery court docket. Appellee testified that she had engaged an attorney to help her obtain a divorce from Mr. Kelly, and the lawyer had indicated to her that he would take care of it and that she would not have to come to court. She testified that it was her understanding that “it had gone through” and that she had custody of her son born of that marriage. She testified that the first indication she had that perhaps the divorce hadn’t been made final was in 1994. She testified that Mr. Kelly deserted her when their son was three weeks old, that she never saw or heard from him again, had no idea as to his whereabouts, and filed for divorce some eighteen months later.
It has been held that, while a legal marriage cannot be created by estoppel, equity can require that parties be estopped from denying the validity of a marriage. Brown v. Imboden, 28 Ark. App. 127, 771 S.W.2d 312 (1989). While it is true that a bigamous marriage is void from its inception,
[I]t is a longstanding presumption of law that a marriage entered in due form is valid, and the burden of proving a marriage is invalid is upon the party attacking its validity. It is presumed that, when a man and woman are married, and one had a living spouse, the former spouse has been divorced at the time of the marriage.
Further, there is the additional presumption that the former spouse was dead at the time of the second marriage. The presumptions of divorce from or death of a previous spouse are so strong that they exist despite the fact that overcoming them involves proof of a negative, i.e., proof of no divorce and/or proof that the previous spouse is still living.
Clark v. Clark, 19 Ark. App. 280, 719 S.W.2d 712 (1986) (citations omitted). It has been held that even if the existence of the former spouse at the time of the second marriage was established by proof, and the clerk of the divorce court in the county of the purported divorce testified that careful examination of the records failed to produce any record of a divorce obtained in the prior marriage, such proof is not sufficient to overturn the second marriage, which is presumed to be legal. Estes v. Merrill, 121 Ark. 361, 181 S.W. 136 (1915). Applying these longstanding principles to the facts before us, we cannot say that the chancellor’s ruling was clearly erroneous.
Affirmed.
Rogers and Neal, JJ., agree. | [
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WENDELL L. Griffen, Judge.
Randy Johns appeals from the July 8, 1994, order by the Phillips County Chancery Court that he see that his two minor children attend Sunday School and church during his visitation every other weekend. Appellant and appellee were divorced November 10, 1988. The divorce decree awarded appellee permanent custody of the children subject to the reasonable visitation rights of appellant. On December 1, 1993, appellant filed a petition seeking a contempt citation against appellee for allegedly refusing to permit him visitation with the younger of the two children, Ryan Randall Johns. On January 7, 1994, appellee filed a response to that petition and asserted a counterpetition alleging, inter alia, that appellant had not complied with prior understandings regarding the children attending religious services during the time that they visited him. The chancellor conducted an evidentiary hearing on April 1, 1994, which resulted in the order to which appellant takes exception, specifically that portion of the order which reads as follows:
. . . the Defendant, Randy Johns, is hereby Ordered to see that the children attend Sunday School and Church while they are in his custody during his visitation.
Appellant argues that the chancellor abused his discretion in rendering this order because there was, according to appellant, no material change in circumstances which justified an order that he see that the children attend Sunday School or church services. Next appellant contends that the appellee was not ordered to see that the children attend Sunday School or church services while they were in her custody. Finally, appellant argues that although church attendance may well be a positive factor, the constitutional guarantee of freedom of religion found in the First Amendment to the Constitution of the United States means that noncustodial parents may not be compelled to see that their children attend church services and Sunday School during visitation.
This appears to be a case of first impression in Arkansas. However, the controlling principles of law that govern child custody and visitation disputes are well settled. Although this court reviews the evidence in appeals from chancery courts de novo, the decision of a chancellor is not reversed unless it is shown that it was clearly contrary to a preponderance of the evidence. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993); Larson v. Larson, 50 Ark. App. 158, 902 S.W.2d 254 (1995); Thigpen v. Carpenter, 21 Ark. App. 194, 730 S.W.2d 510 (1987). Special deference is shown to findings and rulings made by chancellors in child-custody matters because of the special care that is required and the unique opportunity of the chancellor to evaluate the evidence and assess the credibility of witnesses. Larson v. Larson, supra; Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995). And it is fundamental law in Arkansas that the primary consideration in both custody and visitation cases is the welfare and best interest of the child, with all other considerations being secondary. Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839 (1989); Welch v. Welch, 5 Ark. App. 289, 635 S.W.2d 303 (1982).
After conducting a de novo review of the evidence, consistent with the aforementioned principles of law, we conclude that the decision of the chancellor should be affirmed. Although the initial divorce decree and all other orders supplemental to it make no reference to church attendance, the record shows that appellee has been following a consistent course of religious instruction for the children at all relevant times since the divorce occurred. Appellee testified that the children had attended church with her on a regular basis, but that they do not attend church services when they visit appellant. Appellee also testified that when the older child, Casey, did not attend morning church services when she visited appellant,
. . . it is kind of difficult on Sunday nights, because she is laxed (sic) all day. As they get older, I am concerned about the teenage years, when they start wanting to kind of do what they want to do. I want that to be — you know — in their life when they’re little so they won’t — you know— depart from that. I think it’s very important that they have that in their life.
The chancellor was certainly justified in considering this concern expressed by the custodial parent about the need for consistency in the church-attendance routine, especially where there was no indication that the routine was in any way detrimental to the health and welfare of the children. See Clark v. Reiss, 38 Ark. App. 150, 831 S.W.2d 622 (1992).
Appellant’s argument that the chancellor abused his discretion by ordering appellant, and not appellee, to see that the children attend Sunday School and church services is unpersuasive because appellee testified that she had attended Sunday School and church services with the children for as long as they had been with her. That testimony was consistent and unrebutted. The chancellor had no reason to order the appellee to do what she had already undertaken to do, especially absent any proof that appellee would discontinue that practice. See McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994).
Appellant’s ffeedom-of-religion claim is without merit. The chancellor did not order him to attend religious services, but rather that he see that his children did so in order to maintain consistency in the religious regimen that their mother has set for them. Therefore, no limitation has been placed on appellant’s freedom of religion. Because the chancellor’s order imposes no duty on him to attend, appellant is free to attend or not attend the services with the children.
Appellant also argues that the chancellor’s order constitutes an impermissible encroachment on his visitation rights by requiring him to devote part of his visitation time to activities instituted by the custodial parent. We do not agree with that premise. Even if the requirement to see that his children attend Sunday School and worship does inconvenience appellant, that inconvenience does not justify setting aside the chancellor’s order when what the chancellor ordered is consistent with the best interest of the children. In visitation issues, the primary consideration is what is in the best interest of the children, not what is most convenient for the parent seeking to exercise visitation rights. Even parents who live with their children endure certain inconveniences and hardships related to the parenting function. The record contains no proof that the inconvenience appellant claims will ensue from complying with the chancellor’s order would rise to the level of a deprivation of a protected right. Also, appellant has offered no proof to establish that consistent Sunday School and worship attendance is contrary to the best interest of the children.
We note that there was no evidence disputing the testimony from appellee that appellant’s refusal to see that the children attend Sunday School and worship services during his visitation has begun to have undesirable effects on one of the children. Moral instruction is, like every other aspect of education, the result of accumulated and consistent effort over time. Because appellant has the right to visit his children every other week, his refusal to see that they attend Sunday School and worship services would mean they would miss half of the possible opportunities for the moral instruction that their mother has been trying to instill. Although we express neither approval nor disapproval for whatever religious beliefs the children may be learning, the fact remains that appellant offered no alternative method for instructing his children in moral values during the time that they would have otherwise been receiving that instruction through Sunday School and church attendance. Under these circumstances, we find that the chancellor acted within the discretion afforded him in making his order.
We reach our decision mindful that there are numerous situations similar to the one involved in this case where divorced parents may differ concerning the routine that their children should follow. We recognize that the children will necessarily become the objects of those differences in some, if not many, instances, and that it is not possible for appellate courts to craft hard and fast rules in individual cases that will fit every situation. We are sensitive to the unique difficulties that these disputes present for chancellors faced with pleas by parents with many motivating influences and children whose lives will turn on the decisions that are reached. Nevertheless, until controversies of this nature cease it will be necessary for someone to decide them. Chancellors are accorded considerable deference in their decisions concerning these matters precisely because they are, in the vast majority of instances, familiar with the factual background and procedural history of the cases. Their decisions will not be infallible; they are reviewable de novo by this court and subject to reconsideration at the trial level upon proof of a change in circumstances. However delicate the area of controversy may be, it is the manifest duty of chancery courts to resolve these disputes, and the fact that their decisions will displease one or even both parties must not become a reason for judicial inertia at times when action is both necessary due to the disputing parents and vital in order to protect the best interests of the children.
Affirmed.
STROUD, J., joins in this opinion.
Pittman, J., concurs.
Cooper, Rogers and Robbins, JJ., dissent. | [
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John Mauzy Pittman, Judge.
Terrence McClung appeals from his conviction of driving while intoxicated, for which he was sentenced to one day in jail, was fined $400.00, and had his driver’s license suspended for ninety days. He contends that the trial court erred in denying his motion to dismiss for violation of the speedy trial rules. We agree and reverse and dismiss.
On May 31, 1991, a judgment was filed in the Eureka Springs Municipal Court sentencing appellant for his convictions of driving while intoxicated and driving left of center. On May 31, 1991, appellant timely appealed those convictions by filing the municipal court record in the Carroll County Circuit Court. On June 30, 1992, appellant and his attorney appeared in circuit court and moved to dismiss the charges on grounds that he had not been provided with a speedy trial de novo. The court denied appellant’s motion because none of the documents perfecting appellant’s appeal reflected that they had been served on the prosecutor, who in this case was the Eureka Springs City Attorney. On April 22, 1993, the court entered a written order denying appellant’s motion and tolling the speedy-trial period until appellant properly notified the prosecutor. The order reflects that the city attorney had been present in court on June 30, 1992, when appellant’s motion was presented and denied.
Appellant’s trial in circuit court was finally held on December 30, 1994. Before trial, appellant again moved to dismiss the charges on speedy-trial grounds. Again, the motion was denied. After the trial, appellant was convicted of driving while intoxicated.
On appeal, appellant contends that the trial court erred in denying his motion to dismiss the charges. The State concedes error on this point. We agree and reverse and dismiss.
Rule 28.1(c) of the Arkansas Rules of Criminal Procedure provides that, subject to any excludable periods under Rule 28.3, a criminal defendant charged in circuit court and held to bail, or otherwise lawfully set at liberty, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months from the time provided in Rule 28.2. Our courts have held that the time period within which a defendant must be brought to trial upon appeal of a misdemeanor conviction to circuit court begins to run under Rule 28.2 on the day that the appeal is perfected. McBride v. State, 297 Ark. 410, 762 S.W.2d 785 (1989); Shaw v. State, 18 Ark. App. 243, 712 S.W.2d 338 (1986). The primary burden is on the court and prosecutor to assure that a case is brought to trial in a timely fashion. Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991); see Reed v. State, 35 Ark. App. 161, 814 S.W.2d 560 (1991). A defendant has no duty to bring himself to trial, Glover v. State, supra, and the time for trial commences running without demand by the defendant, Ark. R. Crim. P. 28.2; Raglin v. State, 35 Ark. App. 181, 816 S.W.2d 618 (1991). Once it has been shown that a trial is to be held after the speedy-trial period has expired, the State has the burden of showing that any delay was the result of the defendant’s conduct or that it was otherwise legally justified. Raglin v. State, supra; Reed v. State, supra.
Here, appellant perfected his appeal to circuit court on May 31, 1991, but his trial was not held until some three years and seven months later, on December 30, 1994. Therefore, the burden was on the State to show that at least two years and seven months of the delay was excludable. The State failed to meet that burden. We need not decide in this case whether appellant was required to notify the city attorney of his appeal in order to start the running of the speedy-trial period. This is true because, even if we were to assume that appellant did have some such burden, the city attorney was clearly aware of the appeal no later than June 30, 1992, yet appellant’s trial still was not held until two years and six months later. Of that thirty-month period, the record indicates only that the period from June 30 to August 7, 1992, was excludable and attributable to appellant. There appears in the record no reason why appellant’s trial could not have been held within twelve months of August 7, 1992. Therefore, we hold that the trial court erred in denying appellant’s December 1994 motion to dismiss.
Reversed and dismissed.
Griffen and Mayfield, JJ., agree. | [
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John F. Stroud, Jr., Judge.
This appeal results from an order of the Madison County Probate Court that terminated the guardianship of Jacob Aaron Hooks, a minor, and returned him to the custody of his mother, appellee, Ronya Annette Pratte. The appellants are Vaughan Benjamin Hooks, who claims that he is the natural father of Jacob, and Hooks’s mother, Sandra Clark Goodier, who served as Jacob’s guardian prior to the termination.
Appellant Hooks and appellee are Texas residents. They have never been married to each other but have lived together sporadically including the time period that Jacob was eight weeks old until he was ten months of age. In July 1992, appellee left Jacob in the care of Hooks’s mother, appellant Goodier, so that appellee could obtain treatment for her cocaine addiction. The following October, appellant Goodier, with the consent of appellee and Hooks, was appointed guardian of the person and estate of Jacob. Several months thereafter, appellee was seriously injured in a car accident and was hospitalized for two months.
Appellee first sought termination of the guardianship in January 1993 but later amended her petition to request a continuance of the guardianship and visitation in her. In February 1994, appellee filed an amended petition to terminate the guardianship, stating that her consent to the guardianship had been predicated on her need to seek rehabilitation from chemical dependency; that she understood that the guardianship would be voluntarily terminated following her rehabilitation; that she has resolved her substance abuse problem; that she is now married and part of a stable home and family; and that the interests of Jacob would best be served by terminating the guardianship and returning him to her. Appellee also stated in her petition that the paternity of Jacob had never been determined by a court of competent jurisdiction. Appellants Goodier and Hooks filed separate responses that denied the guardianship should be terminated. They both also alleged that Hooks is the natural father of Jacob and that the Texas birth certificate confirms this.
After a hearing on the merits of appellee’s petition, the probate court entered an interim order which held that paternity had not been adjudicated in Hooks and therefore he could not be included as a party. The court also held, however, that, if his paternity had been established in Texas, he could provide that information to the court. The court also ordered that a home study and drug-screening test be performed on appellee. The probate court terminated the guardianship of Jacob after the receipt of the home study and drug-screening test, finding that the circumstances that had led to the letters of guardianship being issued had changed to the extent that it would be in Jacob’s best interest to terminate the guardianship and to reunite Jacob with his mother, the appellee.
On appeal, appellants make several arguments in support of their contention that the probate court erred in dismissing appellant Hooks as a party to the termination proceeding. They claim that the probate court’s holding that an adjudication of paternity was necessary in order for Hooks to participate in the proceeding is clearly erroneous because Ark. Code Ann. § 28-65-207(b) (Supp. 1993) makes no distinction between a parent of a legitimate child and a parent of an illegitimate child. This section provides in part that “notice of the hearing of the application for the appointment of the guardian shall be served upon ... [t]he parents of the alleged ... minor ...” Appellants argue that the court’s order that appointed appellant Goodier as guardian recognized Hooks as the natural father of Jacob and, therefore, the doctrine of res judicata prevented the probate court from questioning Hooks’s status as a parent at the termination proceeding.
The only argument appellants raised at the termination hearing in support of their contention that an adjudication of paternity was unnecessary was their contention that Hooks was listed as the father on Jacob’s Texas birth certificate. Because no argument was made concerning the court’s earlier order or the doctrine of res judicata at the hearing, we find this argument is being raised for the first time on appeal. It has long been held that the appellate court will not consider arguments raised for the first time on appeal. See Kulbeth v. Purdom, 305 Ark. 19, 21, 805 S.W.2d 622, 623 (1991).
Appellants admitted that there had never been any adjudication of paternity but argued that it was not necessary because, under Texas law, Hooks is considered the father if his name appears on Jacob’s Texas birth certificate. The court stated that it would allow Hooks to remain a party to the termination proceeding if he could provide the court with any law to the effect that he would be an appropriate party. The court also stated that, if under Texas law Hooks’s name on the birth certificate was sufficient to establish paternity, Hooks needed to file the birth certificate and the statute with the court. Although Hooks later filed a copy of Texas Code Ann. § 12.02(a)(4) (West 1989), with the court, which did indicate a man is presumed to be the biological father of a child if he consents in writing to be named as the child’s father on the child’s birth certificate, there is no record that he filed a copy of Jacob’s birth certificate with the court. We therefore cannot say that the probate court erred in dismissing Hooks as a party.
Appellants also contend that the probate court erred in not making a determination of paternity. We do not address the merits of this contention, however, because appellants’ abstract does not show that the probate court was asked to make such a determination. It is fundamental that the record on appeal is confined to that which is abstracted, and the failure to abstract information pertinent to an issue precludes this court from considering the issue on appeal. Harvill v. Bevans, 52 Ark. App. 57, 60, 914 S.W.2d 784 (1996).
In connection with their first point, appellants also contend that the probate court violated Hooks’s rights to equal protection and due process as established by the United States Constitution when it dismissed him from the termination proceeding. Here again, we find that these arguments were not raised before the probate court. Even constitutional arguments being raised for the first time on appeal will not be considered. Moore v. State, 323 Ark. 529, 543, 915 S.W.2d 284 (1996).
For their second point, appellants contend that the probate court applied the wrong standard of proof in considering only whether the guardianship was still necessary. They assert that this court’s holding in In re Guardianship of Markham, 32 Ark. App. 46, 795 S.W.2d 931 (1990), requires that a petitioner must prove that the termination of a guardianship is in the child’s best interest before the guardianship of a minor can be terminated.
In In re Guardianship of Markham, supra, the appellants had voluntarily consented to an order appointing the appellee as the guardian for their daughter and had asked the appellee to raise the child. The appellants later sought termination; however, the probate court found that it was not in the child’s best interest to terminate the guardianship. The appellants argued that it was error not to terminate the guardianship because Ark. Code Ann. § 28-65-204 (1987) established a preference for a natural parent in the appointment of the guardian. On appeal, this court explained that Ark. Code Ann. § 28-65-401 (b)(3) (Supp. 1989) governs a proceeding to terminate a guardianship, that it allows the court to consider the best interest of the ward in deciding whether to terminate a guardianship, and that the rights of the natural parents are not proprietary. Our holding, however, should not be interpreted as providing the only guideline a probate court can consider in terminating a guardianship. Arkansas Code Annotated § 28-65-401 (b)(3) (Supp. 1993) provides that a guardianship may be terminated if, for any reason, the guardianship is no longer necessary or for the best interest of the ward.
In the case at bar, the probate court found that appellee had presented sufficient evidence to show that the guardianship was no longer necessary and that it would be in Jacob’s best interests to terminate the guardianship and to reunite him with his mother. Appellee testified that, when she entered the drug treatment program, she asked appellant Goodier to help take care of her son until she could get on her feet and could provide a stable home for him. Her testimony reflected that she has remained drug-free since she left that program, which had been approximately twenty months at the time of the hearing. She also testified that she has been happily married since October 1993 and helps her husband with work in renovating apartments and cares for his two sons that live with them. She also testified that they have prepared a room for Jacob next to hers, that Jacob has been to their house, and that his guardian, Ms. Goodier, has not indicated that she has any concerns about Jacob’s staying with them. She further testified that she and Ms. Goodier have “gotten along” most of the time during the course of the guardianship and that she has no problem with Ms. Goodier visiting Jacob. She further stated that she has been voluntarily paying Ms. Goodier support since September 1993. Although Ms. Goodier disagreed that she should be terminated as Jacob’s guardian, she admitted that appellee has been sending her money regularly since last September except for two months and that appellee is not the same person as she was when she left Jacob with her.
The court held that it found appellee to be honest and forthright with the court and that she had convinced the court that she has corrected the problems that she was having at the time the guardianship was established and is ready to assume the motherhood that she should have assumed earlier and to rear Jacob as her own child. Additionally, the drug screening and home study of appellee ordered by the court indicated that there was no evidence that appellee had taken any drugs and that appellee appeared to have a stable marriage, a mutually caring relationship with her stepchildren, and that Jacob appeared happy and quite comfortable in his mother’s care. From our review, we cannot say that the decision of the probate court to terminate the guardianship is clearly erroneous. Although probate proceedings are reviewed de novo on the record, the decision of the probate judge will not be disturbed unless it is clearly erroneous, and in making that determination, we give due regard to the opportunity and superior position of the trial judge to judge the credibility of the witnesses. In re Adoption D.J.M. of 39 Ark. App. 116, 121, 839 S.W.2d 535, 538 (1992).
Appellants, for their final point, contend that the probate court erred in applying Ark. Code Ann. § 9-10-113(b) (Repl. 1993) to the termination proceeding. This statute provides that a biological father, provided he has established paternity in a court of competent jurisdiction, may petition the chancery court, or other court of competent jurisdiction, wherein the child resides, for custody of the child. Appellants contend that the trial court erroneously relied on this “chancery” statute for requiring an adjudication of paternity in order to allow Hooks to participate in the termination proceeding. We are unable to address this point, however, because appellants’ abstract of the proceeding does not indicate that the probate court considered this statute in dismissing Hooks from the proceeding and appellants are raising this issue for the first time on appeal. As we have previously held, the record on appeal is confined to what is abstracted, see Harvill v. Bevans, 52 Ark. App. at 60, 914 S.W.2d at 787, and we will not consider arguments raised for the first time on appeal. Kulbeth v. Purdotn, 305 Ark. at 21, 805 S.W.2d at 623.
Affirmed.
Cooper and Robbins, JJ., agree. | [
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WENDELL L. Griffen, Judge.
Columbia Mutual Insurance Company has appealed the decision by the Jackson County Circuit Court finding in favor of Danny and Gail Sanford on their motion for summary judgment in their breach of contract lawsuit based on an insurance policy. Appellees suffered a fire loss to a poultry house on January 14, 1992. The house was covered by an insurance policy issued by appellant. Appellees filed a claim for total loss. Appellant denied the claim relying upon a “rebuilding clause” in the policy that provided that the amount of insurance applying to a covered structure shall be reduced to sixty percent of the face value if the damaged structure is not repaired or replaced at the same location within twelve months of the loss date. Consequently, appellant confessed judgment and paid appellees $42,000, plus pre-judgment interest. Appellant also confessed judgment for an additional $23,358.36 contingent upon appellees’ compliance with the rebuilding clause. After the parties submitted the dispute to the trial court on stipulated facts, the trial court denied appellant’s summary judgment motion. Instead, it entered judgment in favor of appellees and against appellant for $23,358.36, plus accrued interest and an attorney’s fee of $5,000, based upon its conclusion that the rebuilding clause is contrary to public policy. This appeal followed. We have concluded that the appellees were entitled to judgment as a matter of law, but we reach that result for reasons different from the trial court. Therefore, we affirm the judgment for appellees.
Appellees purchased farm property near Bradford, Arkansas, in October 1989, and purchased insurance from appellant shortly afterwards to cover two poultry houses on the property. One of the houses was partially destroyed by fire on January 14, 1992, along with all of the chicken house equipment within the part that was damaged. Appellees made demand upon appellant for $70,000, the face value of their coverage under the insurance contract, but their demand was eventually denied by appellant based on the language of the “rebuilding clause” in their policy which reads as follows:
In consideration of the premium, it is a condition of this insurance that each dwelling or other building structure covered under this policy is subject to the provisions of this Rebuilding Clause. In the event of loss or damage by peril insured against to any such dwelling or other building structure:
(a) if the loss or damage is not repaired or replaced by the insured for the same Occupancy and use within twelve (12) months of the date of loss or damage, at the same location described in the policy, the amount of insurance applying to such dwelling or other building structure shall be reduced to 60% of such amount and the liability of the Company shall not exceed the smaller of (1) the amount for which it would be liable in the absence of the Rebuilding Clause, or (2) the amount of insurance applying to such dwelling or other building structure reduced to 60% of such amount as specified above;
(b) if the loss or damage is repaired or replaced by the insured for the same occupancy and use within twelve (12) months of the date of the loss or damage, at the same location described in the policy, the liability of this Company shall not exceed the smallest of (1) the amount of insurance applying to the damaged or destroyed dwelling or other building structure, or (2) the actual cash value of that part of the dwelling or other building structure damaged or destroyed, or (3) the amount actually or necessarily expended in repairing or replacing the damaged or destroyed dwelling or other building structure.
Appellant contends that appellees did not comply with the rebuilding clause because they did not rebuild the damaged structure within twelve months of the January 14, 1992, fire loss. Accordingly, appellant tendered payment on December 11, 1992, for $42,000, plus pre-judgment interest, based on its view that the rebuilding clause provided that coverage would be reduced to sixty percent of the policy face value. Appellant also confessed judgment for an additional $23,358.36, the amount it calculated appellees would have been due upon complying with the rebuilding clause.
An insurer may contract with its insured upon whatever terms the parties may agree upon that are not contrary to statute or public policy. Shelter Gen. Ins. Co. v. Williams, 315 Ark. 409, 867 S.W.2d 457 (1993). The insured, by accepting the policy, is deemed to have approved it with all conditions and limitations expressed therein which are reasonable and not contrary to public policy. AETNA Ins. Co. v. Smith, 263 Ark. 849, 568 S.W.2d 11 (1978) (emphasis added). While we do not find the rebuilding clause itself to be against public policy, we do find the appellant’s reliance on the clause to be unreasonable under the facts of this case.
Although appellees submitted a timely estimate for $63,952 in repairs, appellant made no offer to pay that amount until December 11, 1992, almost one month before the end of the period allowed in the rebuilding clause for rebuilding the damaged structure. It is clear that when appellant confessed judgment relying on the rebuilding clause, the prescribed time for rebuilding had not yet elapsed. It is also clear that appellant had received information months beforehand that would have allowed it, under any reasonable analysis, to accept the claim so that appellees could begin to rebuild without risking a reduction in the amount that would be paid on their loss for failure to comply with the rebuilding condition. Using appellant’s reasoning, an insurer may withhold payment on an covered claim until the “eleventh hour” — in this case the eleventh month — and thereby force the insured to either comply in merely thirty days with the rebuilding condition or accept a forty percent reduction in coverage. We find appellant’s reliance on the rebuilding clause to be unreasonable in this case.
Affirmed.
Jennings, C.J., and Robbins, J., agree. | [
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Melvin Mayfield, Judge.
James Cole appeals from an order of the Saline County Chancery Court in a divorce action and argues that the chancellor erred in finding the proceeds in a Benton State Bank account, all property purchased by the appellee from this account, and the parties’ home to be the separate property of the appellee, Láveme Cole.
The parties were married in August 1971, and separated on April 14, 1994. The divorce was granted on August 8, 1994, after a hearing which specifically reserved issues of alimony and the division of certain personal and real property which the appellee claimed as her separate property.
At the hearing on the reserved issues, the appellee testified that she owned the Hornet Cafe when they were married; that she made all the payments on the cafe from her earnings; that in October 1984, she put the appellant’s name on the deed to the cafe on his promise to make a will leaving the property to her children; that appellant never made a will; and that in 1987, she sold the property, opened an account at the Benton State Bank in the name of James and Laverne Cole, and placed the money into that account.
In 1979, the appellee’s mother made a gift of sixty acres of family property to her children; a trust was created; and the property was sold through Richardson Place, Inc. Trust. She said she received $258,529.33 from the trust between 1986 and 1993; that she deposited some of the proceeds into the Benton State Bank account, used others to pay directly on a loan, and placed the rest directly into Certificates of Deposit.
In December 1986, the parties purchased a lot and paid for it with Richardson Place money. They began to build a house on the lot in January 1987, and the appellee paid for everything out of the account in the Benton State Bank. The parties borrowed $50,000 from that bank to complete the house because the appellee, who was not working, could not get a loan. The loan proceeds were deposited in the Benton State Bank account and when appellee received a check from the trust she took the check and endorsed it over to that bank to repay the loan. Later, the appellee added to the note to buy a van and to pay the parties’ income taxes, and the appellee is still paying on the note.
The appellant was laid off in 1989, and from then until October 1993, when he got a steady job, the appellee used substantial amounts of her distributions from the trust in order to support the parties.
On January 8, 1991, the appellee received a check from the trust in the amount of $15,000 made out to Laverne Cole and purchased a Certificate of Deposit in the names of Laverne or James Cole. On January 25, 1994, the appellee withdrew $17,027.81, representing the initial amount plus accrued interest, from the CD and placed it in a safe-deposit box in her name.
In 1993, the appellant received a settlement of a discrimination lawsuit and told the appellee to buy Wal-Mart stock. The appellee purchased 300 shares of Wal-Mart in their joint names for $8,176.25 and deposited $2,965.76 in the Benton State Bank. Later, appellant bought a riding lawn mower for about $2,000.
The appellee testified that the Benton State Bank account was just for Richardson Place money and the Hornet Cafe; that the parties referred to the account as the Richardson Place money; that she always treated the money as her money; and that until May 1993, when they deposited the “remains” of the setdement money in the account, the only money deposited in the account was the Richardson Place money and the Hornet Cafe money. The appellee said that the appellant’s name was on the account so that if something happened to her, he would have something, but that appellant never deposited any money in the account and wrote, at most, four or five checks on the account and only with her permission. She said that the parties had a joint checking account at Superior Federal into which they deposited their wages and from which they paid their bills. However, no house payments were made from this account.
The appellee testified further that the parties always filed joint income tax returns; that the money she received from Richardson Place had joint income taxes paid on it, but she paid all the taxes out of the Richardson Place money.
The appellant testified that he brought money into the cafe by working and that the appellee could not have made the payments on the cafe if he had not worked to keep “the rest of the place up.” He said that he considered the Richardson Place money to be “ours” and that he did not think Richardson Place was a gift from appellee’s mother, but thought the appellee and her sisters bought it from their mother.
On this evidence, the chancellor found:
7. That the Court finds that the home is the sole and separate property of the plaintiff, Laverne Cole. That Defendant deeded the home to the Plaintiff, Laverne R. Cole on September 23, 1992, Recorded in Book 364 Page 316, Records of Saline County Circuit Clerk; and there is no evidence to warrant setting aside the deed. That the description of said property is attached hereto as Exhibit “A”.
8. That the Court finds that all proceeds from the Richardson Place Trust and the Hornet Cafe which were deposited into Benton State Bank Account Number 51-76387, as well as all property purchased by plaintiff through this account are plaintiff’s separate property.
9. That the money defendant received from his settlement and the property that he purchased through this account, Benton State Bank Account Number 51-76387, are his separate property.
10. That the Court finds that even though both names are on the Benton State Bank Account No. 51-76387, it is clear that the plaintiff made the final decision on the use of the Richardson Place Trust funds and the Hornet Cafe funds, just as the defendant did his settlement funds. Even though there were times when plaintiff spent money on mutual family expenses, (income taxes and general living expenses while defendant was out of work), that decision was plaintiff’s. . . . Another factor that supports this decision is that the parties had another checking account at Superior Federal Bank that they used for every day business and that they deposited their paychecks into. It appears either party used this account as they saw fit.
11. That it was undisputed that when plaintiff added defendant to the Hornet Cafe, he was to execute a Will naming her children as his beneficiaries. Defendant never executed a Will naming the plaintiff’s children as beneficiaries to complete his part of the agreement and therefore the proceeds from the sale of said property is the sole and separate property of the plaintiff.
Appellant’s first argument on appeal is that the trial court erred in finding that the proceeds in the Benton State Bank account and items purchased from the account were non-marital property. Appellant says the parties treated the funds in the Benton State Bank account as marital property until marital difficulties arose and the appellee removed the remaining funds, placed them in a lock box, and claimed them as her own. Therefore, according to the appellant, the trial court should have found that the account, the proceeds removed from the account, and the items purchased from the account and used by the parties were marital property.
Once property, whether real or personal, is placed in the names of persons who are husband and wife without specifying the manner in which they take, there is a presumption that they own the property as tenants by the entirety, and clear and convincing evidence is required to overcome that presumption. McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991); Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). Clear and convincing evidence is evidence so clear, direct, weighty, and convincing as to enable the fact-finder to come to a clear conviction, without hesitance, of the matter asserted. Reed v. Reed, 24 Ark. App. 85, 749 S.W.2d 335 (1988). Tracing of money or property into different forms may be an important matter, but tracing is a tool, a means to an end, not an end in itself; the fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce. Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986).
On the evidence presented, we think the chancellor could have found that there was clear and convincing evidence to overcome the presumption that the Benton bank account was owned as tenants by the entirety. Because we review chancery cases de novo and reverse only if the chancellor’s findings are clearly erroneous or clearly against the preponderance of the evidence, we cannot say that the chancellor’s finding to this effect should be reversed. See Reed v. Reed, supra.
Appellant also argues the chancellor erred in finding that the real property was the appellee’s separate property.
The evidence shows that in 1991 the appellant, who was a truck driver, received a DWI charge. The appellee testified that the appellant had developed a drinking problem and she was concerned that he would be involved in an accident, that she would lose everything she had, that there would be nothing for the kids and not even a place for her. The appellee testified that she said:
Jim, you’re driving and you’re drinking and you’re going to have a wreck. We’re going to lose everything — I’m going to lose everything we’ve — I’ve put into this house and there’s going to be nothing left. Would you put the house in my name?
She said the appellant agreed. However, the appellant testified that he only “went along” with the appellee and that he did not realize he was signing his rights away to everything; that he did not understand what it meant; and that he just expected to get it out of his name in case he was sued.
Appellant argues on appeal that he transferred the property to the appellee only to protect their assets, not to release his interest in the property, and that the house is marital property.
Appellant cites Crowder v. Crowder, 303 Ark. 562, 798 S.W.2d 425 (1990), in support of this argument. Crowder also involved the division of real property in a divorce proceeding. In that case, Mr. Crowder executed a warranty deed on March 6, 1962, after he was involved in an automobile accident involving alcohol, transferring his interest in the property to his wife. Eight months later, he recorded the deed. The parties were divorced in 1989 and the chancellor found that, even though the husband signed the warranty deed, the property was marital property. Our supreme court affirmed the chancellor. The court held that a deed is inoperative unless there has been delivery to the grantee and a presumption of valid delivery attaches when the deed is recorded. This presumption is not conclusively established when there is proof of other factors pertaining to the deed which may rebut the presumption. The court héld the presumption of delivery was countered by Mrs. Crowder’s testimony that they “figured” he would sign it over to save his place, and she could sign it back to him. The court also noted that the parties continued to live in the home until the divorce proceeding and paid taxes, insurance, maintenance, and subsequent construction costs on the property from a joint checking account containing contributions from both parties.
To the contrary, in the instant case the appellant signed the deed in September 1992 and it was filed for record in the same month. Although appellant continued to live in the house, the appellee paid all real estate and personal property taxes, insurance, and the mortgage on the home from the Richardson Place Trust money. Moreover, there is no evidence that the appellee ever said she would deed the home back to the appellant.
We cannot say the chancellor’s finding that the real property is appellee’s separate property is clearly erroneous.
On cross-appeal, the appellee asks that if we reverse the chancellor we grant her alimony. Because we hold that the chancellor did not err in finding that the proceeds in the Benton State Bank account, all property purchased by the appellee through this account, and the parties’ home to be the appellee’s separate property, we do not reach this issue.
Affirmed.
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JAMES R. Cooper, Judge.
The appellants in this chancery case purchased from the appellee, First National Bank in Stuttgart, ten acres of land on which were located a store, a house, various outbuildings, and a large grain-storage facility. After occupying the property for several months the appellants learned that the appellee, Troy Mitchell, claimed to be the owner of the grain-storage facility and that he had a lease to keep the facility on the appellants’ land. Advised by the appellee bank that Mitchell had no valid lease or interest in the grain storage facility, the appellants disputed Mitchell’s claim. Mitchell subsequently brought suit to enforce the lease and, after a hearing, the trial court found that the grain storage bins were personal property belonging to Mitchell; that Mitchell would be permitted to remove the bins if he did so within 90 days; that the Bank will have breached its warranty if Mitchell removes the bins; and that the value of the bins is $3,500.00.
The appellants argue on appeal that the chancellor erred in finding that the bins are personalty, in finding the value of the bins to be $3,500.00, and in failing to enter judgment against the bank for their attorney’s fees incurred in defending title to the subject property. On cross-appeal, Mitchell argues that the chancellor erred in finding that the appellants were not bound by the lease, and in finding that the appellants were not liable for evicting Mitchell from the leased premises.
We first address the appellants’ contention that the trial court erred in finding that the grain-storage facility constituted personal property owned by the appellee, Troy Mitchell. The appellants argue that the grain bins were fixtures as evidenced by their very large size, their attachment to their footings by extremely large bolts, and expert testimony to the effect that the bins could not be moved unless they were dismantled and cut into smaller pieces with a cutting torch.
Although it is true that there are cases in which similar installations were found to have been fixtures, rather than personalty, see e.g., Corning Bank v. Bank of Rector, 265 Ark. 68, 576 S.W.2d 949 (1979); Barron v. Barron, 1 Ark. App. 323, 615 S.W.2d 394 (1981), it does not follow that such grain-storage facilities are fixtures as a matter of law. The question of whether particular property constitutes a fixture is usually a mixed question of law and fact. Corning Bank v. Bank of Rector, supra. In determining whether items are chattels or fixtures, it is necessary to consider: (1) whether the items are annexed to the realty; (2) whether the items are appropriate and adapted to the use or purpose of that part of the realty to which the items are connected; and (3) whether the party making the annexation intended to make it permanent. McIlroy Bank & Trust v. Federal Land Bank, 266 Ark. 481, 585 S.W.2d 947 (1979). In the case at bar it is clear that the original lessee of the property did not intend for the annexation to be permanent because the lease agreement expressly provided that the lessee should have the right to build a grain-storage facility on the property and, within 60 days of termination of the lease, “to remove from the premises all improvements placed thereon” by the lessee. Given this clear expression of the intent of the party making the annexation to treat the storage facility as a chattel, we cannot say that the chancellor clearly erred in holding that it was not a fixture. See Ark. R. Civ. P. 52(b).
The appellants next contend that the chancellor erred in assessing the amount of their damages arising out of breach of warranty by the appellee bank. The record clearly demonstrates that the bank agreed to sell to the appellants the subject property, including any attached fixtures or equipment, and that the grain bins were attached to the property under the terms of the agreement. The chancellor found that a breach of warranty would arise if Mitchell elected to remove the grain bins as permitted by the order appealed from and that, in such event, judgment should be entered in favor of the appellants for the value of the grain bins. The thrust of the appellant’s argument under this point is that the trial court erred in finding the value of the bins to be $3,500.00. The testimony in this regard was in sharp dispute, with the appellee Mitchell opining that the value of the bins was $90,000.00, while Cole Martin, who was the bank’s agent in the sale of the property to the appellants, testified that he viewed the grain bins as a liability with no value whatsoever. Furthermore, the record shows that the grain bins were in poor repair and inoperable, and that the appellants paid only $50,000.00 for the entire property, including a house and a store. In this context we think it significant that the store, which later burned, was itself insured for $50,000.00. Under these circumstances, giving due regard to the superior position of the chancellor to resolve disputes in the evidence and assess credibility, we cannot say that the chancellor clearly erred in finding the value of the grain bins to be $3,500.00.
Finally, the appellants contend that the chancellor erred in failing to enter judgment against the bank for attorney’s fees incurred in defending their tide to the property. We agree. Where, as here, there is a covenant to warrant and defend tide, the covenantee is entided to recover the costs and necessary expenses incurred in the bona fide defense of tide, including a reasonable attorney’s fee. Murchie v. Hinton, 41 Ark. App. 84, 848 S.W.2d 436 (1993). Although the record shows that the bank provided the appellants with an attorney during the first trial in this matter, it failed to provide a defense when it appeared that its interests were adverse to those of the appellants and a second trial was necessitated. We do not consider this partial participation in the appellants’ defense to be sufficient defense of title, see Murchie, supra, and in light of the appellants’ successful defense of their tide to the realty against Mitchell’s assertion of a leasehold interest, we reverse and remand for the chancellor to enter judgment against the bank for costs and necessary expenses, including a reasonable attorney’s fee.
On cross-appeal, the appellee, Troy Mitchell, contends that the chancellor erred in finding that the appellants were innocent purchasers for value and, therefore, not bound by the terms of the unrecorded lease between Mitchell and the bank’s predecessor in tide. It is undisputed that Mitchell’s lease was not recorded. Arkansas Code Annotated § 14-15-404(b) provides that:
No deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity, made or executed after Decern- ber 21, 1846, shall be good or valid against a subsequent purchaser of the real estate for a valuable consideration without actual notice thereof or against any creditor of the person executing such an instrument obtaining a judgment or decree which by law may be a lien upon the real estate unless the deed, bond, or instrument, duly executed and acknowledged or proved as required by law, is filed for record in the office of the clerk and ex officio recorder of the county where the real estate is situated.
The cross-appellant contends, however, that the appellants should have been held to be bound by the lease despite the lack of recordation because the circumstances were such to put them on notice of Mitchell’s lease. For this proposition he cites Affiliated Laundries, Ltd. v. Keeton, 270 Ark. 841, 606 S.W.2d 370 (Ark. App. 1980), where we held that the purchasers of an apartment complex had a duty to inquire as to the ownership of equipment in the laundry room. However, in Affiliated Laundries, supra, the purchasers were aware prior to closing that the laundry equipment was owned and maintained by someone other than the seller. Such actual notice was lacking in the case at bar and, in addition, we think that it was not readily apparent that the 70-foot-tall structure at issue in the case at bar was personalty. On our review of the record, we cannot say that the chancellor erred in failing to find that the circumstances were such as to put the appellants on inquiry.
Finally, the cross-appellant contends that the chancellor erred in finding that the appellants were not liable for damages arising out of an assertedly wrongful eviction of Mitchell from the leased premises. Insomuch as this argument is foreclosed by our holding that the appellants were not bound by the terms of the unrecorded lease, we need not address it.
Affirmed in part, reversed and remanded in part on direct appeal; affirmed on cross-appeal.
Stroud and Griffen, JJ., agree. | [
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JAMES R. Cooper, Judge.
The appellant was convicted by a jury of being a felon in possession of a firearm. He was sentenced to six years in the Arkansas Department of Correction and fined $8,000. On appeal, he argues that the evidence is insufficient to support his conviction. We agree and reverse and dismiss.
In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and affirm if the verdict is supported by substantial evidence. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992).
Dennis James Washington, a detective with the Hope Police Department, testified that on August 14, 1993, he and Officer Jeffrey Neel encountered the appellant and his three brothers standing outside a housing complex. He testified that the appellant was standing on the sidewalk in front of a blue vehicle. The appellant was holding an ax handle which he surrendered peacefully to the officer. Detective Washington testified that the appellant’s brother, Robert Argo, was standing near the vehicle holding a machete. He stated that Robert subsequendy threw the machete in the back floorboard of the vehicle and sat down in the back seat on the passenger side. Detective Washington asked Robert to exit the vehicle and then retrieved the machete. Detective Washington also retrieved two billy clubs from the vehicle and observed a .16 gauge shotgun in the middle of the front seat. He retrieved the shotgun and discovered that it was loaded.
Detective Washington testified that no one was inside the vehicle when he retrieved the items. He testified that the appellant and his brothers were standing around outside of the vehicle, and that no one admitted to owning the shotgun and that the vehicle belonged to the wife of one of the brothers. He further testified that the doors to the vehicle were not locked, that one door was open, that a window was down, and that all four individuals had access to the vehicle. He also testified that he did not see the appellant in actual possession of the shotgun. Detective Washington determined that all four brothers had felony records and arrested all of them as felons in possession of a firearm. Officer Neel’s testimony was substantially the same as Detective Washington’s testimony.
The appellant argues that the State failed to prove that he possessed the firearm. A showing of constructive possession, which is the control or right to control the contraband, is sufficient to prove a defendant is in possession of a firearm. Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994). Constructive possession can be implied where the contraband was found in a place immediately and exclusively accessible to the accused and subject to his control. Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991); Sinks v. State, 44 Ark. App. 1, 864 S.W.2d 879 (1993). Constructive possession may be established by circumstantial evidence, but when such evidence alone is relied on for conviction, it must indicate guilt and exclude every other reasonable hypothesis. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990).
Here, the appellant was not occupying the vehicle where the gun was found, he did not have exclusive access to the gun nor did he exercise any control over it, the gun was not found on his person or with his personal effects, and he did not own the vehicle in question or exercise control over it. Thus, we find that the evidence is insufficient to show that the appellant constructively possessed the shotgun. See Kastl v. State, 303 Ark. 358, 796 S.W.2d 848 (1990). Therefore, we reverse the appellant’s conviction.
Reversed and dismissed.
Robbins and Stroud, JJ., agree. | [
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JAMES R. COOPER, Judge.
The appellee in this civil case purchased a 1986 Lincoln Town Car from the appellant’s used car lot in April 1991. She subsequently brought an action alleging, inter alia, that the appellant intentionally misrepresented the automobile’s mileage at the time of the sale. After a bench trial the trial court entered judgment for the appellee in the amount of $5,000.00, plus costs and attorney’s fees. From that decision, comes this appeal.
For reversal, the appellant contends that the trial court erred in finding that he violated the mileage disclosure requirement of Ark. Code Ann. § 4-90-206(a) (Repl. 1991), and that the trial court erred in awarding $5,000.00 in damages. We find no error, and we affirm.
In his first point for reversal, the appellant argues that there is no substantial evidence to support the trial judge’s finding that the appellant intentionally violated the statute, and that Ark. Code Ann. § 4-90-206 cannot be satisfied by a showing of mere negligence. We address only the first part of this argument because it is dispositive of the entire issue.
Arkansas Code Annotated § 4-90-206(a) (Repl. 1991) provides that:
No person shall transfer a motor vehicle without disclosing in writing to the transferee the true mileage registered on the odometer reading or that the actual mileage is unknown if the odometer reading is known by the transferor to be different from the true mileage.
As used in Ark. Code Ann. § 4-90-206(a), “person” is defined as “an individual, firm, partnership, incorporated or unincorporated association, or any other legal or commercial entity.” Ark. Code Ann. § 4-90-201(3) (Repl. 1991).
In the case at bar, the record shows that the appellant was the owner of Ronald Colding Motors and that the appellant’s brother was employed as a salesman. Both the appellant and his brother dealt with the appellee at the time the automobile was purchased. The appellee testified that the appellant told her that the automobile was a “good, low-mileage” car, and that she noticed that the odometer reading was approximately 9,800 miles. The record further shows that the car was sold to the appellee after execution of an “Odometer Disclosure Statement” certifying that, to the best of the seller’s knowledge, the odometer reading of 9,892 miles reflected the actual mileage of the vehicle.
Although the appellant testified at trial that he knew at the time of the sale that the actual mileage of the vehicle was approximately 109,000 miles, he claims the error was caused by negligence. On these facts, we cannot say that the trial judge clearly erred in finding that the appellant intentionally misrepresented the vehicle’s mileage. Ark. R. Civ. P. 52(a).
Next, the appellant contends that the trial court erred in awarding damages in the amount of $5,000.00. We do not agree. Arkansas Code Annotated § 4-90-203 (Repl. 1991) provides that any person injured by violation of the odometer provisions shall recover the actual damages, together with costs and a reasonable attorney’s fee. At trial, the appellant himself testified that a 1986 Lincoln Town Car with 9,000 actual miles would be worth $6,000.00 more than an identical vehicle with 109,000 miles. The difference in value between the vehicle as warranted and its actual value is an appropriate measure of damages, see Currier v. Spencer, 299 Ark. 182, 772 S.W.2d 309 (1989), and on this record we cannot say that the trial judge clearly erred in setting damages at $5,000.00.
Affirmed.
Robbins and Stroud, JJ., agree.
Although not argued by the parties, we note that this definition of “person” is broad enough to encompass the acts of both the salesman and the appellant.
Given our holding that sufficient evidence exists to support the finding of intentional misrepresentation, discussion of lesser levels of intent is not required to resolve the issues before us. Nevertheless, we refer the reader to Hinson v. Eaton, 322 Ark. 331, 908 S.W.2d 646 (1995) for a comprehensive discussion of the level of intent necessary to satisfy the statute. | [
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Sam Bird, Judge.
This appeal is from an order denying appellant Jerome Graves’s motion, on the ground of fraud, to abate his child-support obligation for a child who was born to his ex-wife, appellee Loran Graves Stevison, a few weeks before the parties’ divorce was final. The Crittenden County circuit judge denied his motion on the basis of res judicata. We affirm the denial of appellant’s motion for two reasons not expressed by the judge.
The parties were married in September 1986 and separated in May 1987. On March 14, 1988, appellee filed for divorce and stated in her complaint that she was expecting a “child of the marriage.” Although appellant was served with process, he did not file an answer or otherwise defend the action. The child, Julia, was born on July 20, 1988. The judge granted appellee a divorce on August 10, 1988. Finding that the parties had one minor child, the judge awarded appellee custody of Julia and ordered appellant to pay child support in the amount of $20 per week. In a later URESA action from Tennessee filed in the Crittenden County Chancery Court, Case No. E89-1750, the Office of Child Support Enforcement (OCSE) .obtained a judgment against appellant for arrearages and an order requiring appellant to pay $20 per week for the support of the child.
On January 26, 2000, appellant filed a petition for relief from judgment in the original divorce action, alleging that, at the time of the divorce he did not doubt that he was Julia’s father but had since learned otherwise. He requested that he be relieved of his obligation to pay child support for Julia. To his complaint, appellant attached appellee’s affidavit, wherein she stated:
3. During the marriage, one child was born to me, namely Julia Renee Graves, born July 20, 1988. This child was listed as a child of the marriage in the divorce decree. However, Jerome Graves is not the father of Julia Renee Graves. Jerome Graves was Usted as the father of the child because we were still married at the time of her birth.
4. Julian Partee is the father of the child. He is also the father of my child Asia Graves, born May 31, 1989. I believe he lives in Memphis, Tennessee, but I do not know his address.
The OCSE’s action against appellant in E89-1750 was consolidated with this case, and the OCSE assumed the status of an inter-venor. Blood tests that were performed later determined that appellant is not Julia’s father.
Appellant argued below that, pursuant to Ark. R. Civ. P. 60(c)(4), he was entitled to have the determination of his paternity in the divorce decree set aside because appellee had committed intrinsic fraud. Formerly, a judgment could be set aside under that rule for extrinsic, but not intrinsic, fraud. Rule 60(c)(4) was amended in January 2000. The amendment abolished the traditional distinction between intrinsic and extrinsic fraud and provided that, after ninety days, a judgment may be set aside for “fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.” According to appellant, the amendment to the Rule made it possible for the court to set aside the determination of his paternity of Julia. The OCSE argued in response that the determination of the child’s paternity was res judicata and could not be relitigated by the parties. It also argued that, although Lord Mansfield’s Rule had been abrogated, the best interests of the child would not be served in this situation by relitigating her paternity. The OCSE further argued that appellant had failed to prove that any fraud, intrinsic or extrinsic, had occurred.
A hearing was held on the motion. The record does not reveal that any testimony was taken. On December 18, 2000, the judge issued a letter opinion, wherein he stated:
It is true, as defendant asserts, that fraud in procurement of the judgment is a defense against application of the doctrine of res judicata. Wells v. Ark. Public Service Commission, [272] Ark. 481, 616 S.W.2d 718 (1981). The query here, is the non-disclosure of plaintiff to defendant that he may not be the father, such fraud as to defeat the defense of res judicata? Clearly, prior to amendment of Rule 60(c), it was not, the extrinsic/intrinsic rule holding sway. Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950).
The holding, tone and tenor of OCSE v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999), suggests that this type fraud is tolerated in Arkansas, as well as other jurisdiction[s], on some public policy basis that children of such marriages are entitled to be supported. To this Court, it is bad policy to reward an adulterous, deceitful, nefarious, lying litigant to saddle an unsuspecting man with such a burden, but it appears to be the law, and this Court is obliged to enforce it, as distasteful as it is. It is not as though the child will remain in blissful ignorance of the true fact. Here, her mother has filed an affidavit, admitting her perjured testimony, and named the true father.
Defendant cites OCSE v. Mitchell, 61 Ark. App. 54, 964 S.W.2d 218 (1998), but that case dealt with a child out-of-wedlock, and Williams seems to hold cases of that sort are on a different footing than children born during a marriage.
In sum, the Court find[s] that Williams controls the outcome here, and the January, 2000 amendment to Rule 60(c) does not offer a reason to escape the effect of res judicata on the prior holding that defendant is the father.
The order denying appellant’s motion to abate child support on these grounds was filed on March 8, 2002. It is from that order that this appeal follows.
Arguments
Appellant contends on appeal as he did below that, pursuant to the January 2000 amendment to Ark. R. Civ. P. 60(c)(4), which abolished the distinction between intrinsic and extryisic fraud, he was entitled to relief from the judge’s finding that he is the father of the child and to abatement of his child-support obligation. He argues that judicial determinations of paternity are no exception to the remedy provided by Rule 60(c)(4) to litigants who have been defrauded. He also asserts that he did not have a fair opportunity to litigate the issue of paternity prior to the entry of the divorce decree because of the application of Lord Mansfield’s Rule, which has since been abrogated by Ark. Code Ann. § 16-43-901 (Repl. 1999). Appellant further contends that Office of Child Support Enforcement v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999), on which the judge relied, is factually and legally dis tinguishable from this situation. We need not decide these issues because Rule 60 does not apply in this case and appellant failed to establish fraud.
Rule 60(c)(4), Rule 55(c), and Fraud
Appellant’s reliance upon Rule 60 is misplaced because the divorce decree was a default judgment, to which Rule 60 does not apply. Although appellant was served with process, he did not file an answer or otherwise appear in the divorce action before the decree was filed. Arkansas Rule of Civil Procedure 55(a) states: “When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.” ' Rule 60(c)(4) expressly provides that it does not apply to default judgments:
(c) Grounds for Setting Aside Judgment, Other Than Default Judgment, After Ninety Days. The court in which a judgment, other than a default judgment [which may be set aside in accordance with Rule 55(c)] has been rendered or order made shall have the power, after the expiration of ninety (90) days of the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
(4) For misrepresentation or fraud (whether heretofore denominated intrinsic or extrinsic) by an adverse party.
Additionally, the Reporter’s Notes to Rule 55 state that it is “the exclusive basis for setting aside a default judgment” and that, “[a]s amended in 1990, Rule 60 does not apply to default judgments.” The court may, upon motion, set aside a default judgment previously entered for the reason of fraud. See Rule 55(c)(3). Unlike Rule 60(c)(4), Rule 55(c) was not amended to include intrinsic fraud as a basis for setting aside a judgment. Therefore, we conclude that extrinsic fraud is still required to set aside a default judgment.
Our next question is whether appellant established extrinsic fraud. In Ward v. McCord, 61 Ark. App. 271, 966 S.W.2d 925 (1998), we discussed extrinsic fraud, which was then required to set aside a decree under Rule 60(c)(4):
[T]he fraud for which a decree will be canceled must consist in its procurement and not merely in the original cause of action. First Nat’l Bank v. Higginbotham Funeral Serv., Inc., 36 Ark. App. 65, 818 S.W.2d 583 (1991). It is not sufficient to show that the court reached its conclusion upon false or incomplete evidence, or without any evidence at all, but it must be shown that some fraud or imposition was practiced upon the court in the procurement of the decree, and this must be something more than false or fraudulent acts or testimony the truth of which was, or might have been, an issue in the proceeding before the court which resulted in the decree assailed. Id. . . . The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof. [Id.] Whether the procurement of a judgment amounted to fraud upon the court is a conclusion of law. Hardin v. Hardin, 237 Ark. 237, 372 S.W.2d 260 (1963).
61 Ark. App. at 279-81, 966 S.W.2d at 928-30 (citations omitted). The only evidence offered by appellant was Ms. Stevison’s affidavit, quoted above. The record contains no testimony from the divorce trial or from the hearing on appellant’s motion. The conclusion is inescapable that appellant did not establish extrinsic fraud.
The standard of review of an order denying a petition to set aside a default judgment is whether the trial judge abused his discretion. Collins v. Keller, 333 Ark. 238, 969 S.W.2d 621 (1998); Layman v. Bone, 333 Ark. 121, 967 S.W.2d 561 (1998). Based on the foregoing considerations, the judge did not abuse his discretion in refusing to grant appellant’s motion.
Affirmed.
Robbins, J., agrees.
Griffen, J., concurs.
In 1915, Arkansas adopted Lord Mansfield’s Rule, which barred a husband and wife from testifying in a paternity proceeding as to the husband’s non-access during the period of conception. Thomas v. Pacheco, 293 Ark. 564, 740 S.W.2d 123 (1987).
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Larry D. Vaught, Judge.
This is a slip-and-fall case that .L'has previously been before this court. The central issue presented is whether the circuit judge erred in granting summary judgment to the appellees John Q. Hammons Hotels, Inc., and John Q. Hammons Hotels, L.P., after holding that an earlier Arkansas Workers’ Compensation Commission determination as to causation had a preclusive effect in this negligence action. As explained below, we hold that the judge did err, and we reverse and remand.
Procedural History
In April 1997, appellant Judy Beaver attended a seminar related to her work at the Holiday Inn Civic Center in Fort Smith. During a lunch break, Mrs. Beaver and some of her coworkers decided to eat lunch at the hotel’s restaurant. While approaching the buffet, she slipped on an allegedly wet floor. She grabbed a coworker as she fell and hit the floor with her right knee. Mrs. Beaver sought medical treatment in June 1997 and was diagnosed with a herniated disc. She then sought workers’ compensation benefits for a compensable back injury. Although she was initially awarded such benefits, the Commission reversed on two grounds: (1) she was not performing employment services at the time of the injury; (2) she failed to prove that her disc herniation resulted from the April 1997 fall.
Mrs. Beaver appealed both findings to this court. In Beaver v. Benton County Child Support Unit, 66 Ark. App. 153, 991 S.W.2d 618 (1999), we affirmed the Commission’s decision on the sole ground that there was substantial evidence to support the Commission’s finding that she was not engaged in employment services at the time she fell. We did not address the issue of causation.
In 2000, Judy and Jimmy Beaver sued appellees John Q. Ham-mons Hotels, L.P., the owner of the hotel; John Q. Hammons Hotels, Inc., the manager of the hotel; and several John Does, alleging that their negligence caused Mrs. Beaver’s injuries. Appellees moved for summary judgment, arguing that, because the Commission had determined that Mrs. Beaver had failed to prove physical harm resulting from the fall, she was collaterally estopped from litigating that issue in this action. The trial judge agreed and dismissed the claims against the hotel and its manager. We dismissed an appeal from that decision because the claims against the John Does had not been dismissed and, therefore, a final order was lacking. Appellants subsequently took a nonsuit of their claims against the John Does, and the circuit judge issued a final order of dismissal on the basis of collateral estoppel. This appeal followed.
Argument
Appellants argue that the trial judge erred in granting summary judgment to appellees because the Commission’s determination as to causation is not entitled to preclusive effect. They base their argument on the facts that the causation issue was not the sole basis for the Commission’s decision and that we did not address it in the appeal from the Commission.
Standard of Review
In reviewing summary-judgment cases, we determine whether the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Alberson v. Automobile Club Interins. Exch., 71 Ark. App. 162, 27 S.W.3d 447 (2000). The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id.
Collateral Estoppel
The doctrine of collateral estoppel or issue preclusion bars the relitigation of issues of law or fact actually litigated in the first suit. Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., 55 Ark. App. 275, 935 S.W.2d 289 (1996). When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim. Id.; Restatement (Second) of Judgments § 27 (1982). Collateral estoppel may be asserted by a stranger to the first judgment or decree but 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 in the earlier proceeding. Office of Child Support Enforcement v. Willis, 347 Ark. 6, 59 S.W.3d 438 (2001); Coleman’s Serv. Ctr., Inc. v. Federal Deposit Ins. Corp., supra. For collateral estoppel to apply, the following elements must be met: (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; (4) the determination must have been essential to the judgment. Van Curen v. Arkansas Prof. Bail Bondsman Licensing Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002). Decisions of an administrative board may be entitled to collateral estoppel effect. Id.
Additional considerations come into play, however, when the administrative board’s decision is based on two different grounds; this situation relates to the “essential to the judgment” requirement of collateral estoppel. Here, the circuit judge’s decision is not in keeping with either the first or the second Restatement of Judgments because we did not address the causation issue in the appeal from the Commission’s decision. Comment n to section 27 of the first Restatement of Judgments (1942), provided in part: “Where the trial court bases the judgment upon two alternative grounds, and an appellate court affirms the judgment solely on one of the grounds, the judgment is not conclusive in a subsequent action in which the other ground is in issue.”
Comment o to section 27 of the second Restatement provides that, if the appellate court upholds one of the determinations as sufficient and refuses to consider the other, the judgment is conclusive only as to the first determination:
If the judgment of the court of first instance was based on a determination of two issues, either of which standing independently would be sufficient to support the result, and the appellate court upholds both of these determinations as sufficient, and accordingly affirms the judgment, the judgment is conclusive as to both determinations. In contrast to the case discussed in Comment i, the losing party has here obtained appellate decision on the issue, and thus the balance weighs in favor of preclusion.
If the appellate court upholds one of these determinations as sufficient but not the other, and accordingly affirms the judgment, the judgment is conclusive as to the first determination.
If the appellate court upholds one of these determinations as sufficient and refuses to consider whether or not the other is sufficient and accordingly affirms the judgment, the judgment is conclusive as to the first determination.
It is true that the position adopted by the Restatement (Second) of Judgments § 27, Comment o (1982) has not been uniformly adopted. See 18 James Wm. Moore et al., Moore’s Federal Practice § 132.03[4][b] (3d ed. 2002); 46 Am. Jur. 2d Judgments § 591 (1994). However, it has been adopted by the Eighth Circuit Court of Appeals. See Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466 (8th Cir. 1994) (applying North Dakota law).
In 18 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure: Pas Judicata § 4421, at 568-70 (2d ed. 2002), the authors state:
The Restatement Second of Judgments has sought to create a new intermediate ground of its own. As a first proposition, it would . . . deny preclusion as to any of the independently sufficient findings of a trial court. This view has found support in state law. Two paths are then offered to justify preclusion in other circumstances.
On the first path, if an appeal is taken preclusion should attach to every ground that is in fact reviewed and affirmed by an appellate court. This result is justified on the ground that the fear of artificially forcing cautionary appeals is dispelled by the fact ° that an appeal was taken and review had. At the same time, it must be noted that this rule may have the converse effect of artificially discouraging appeals by parties who would choose to accept defeat in one case to avoid the risk of issue preclusion in another case. As to matters passed over by the appellate court, however, preclusion is not available on the basis of the trial-court decision. This result is supported by the fact that the appellate choice of grounds for decision has made unavailable appellate review of the alternative grounds.
The federal decisions agree with the Restatement view that once an appellate court has affirmed on one ground and passed over another, preclusion does not attach to the ground omitted from its decision.
In their brief, appellees rely on cases from other jurisdictions that do not follow the modern rule as set forth in the comments to section 27 of the second Restatement. Although the appellate courts of this state have not addressed the precise question presented in this appéal, the supreme court has relied upon section 27 of the second Restatement in other situations. See In re Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995); John Cheeseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993); Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985).
In the circumstances presented by this case, we believe it is appropriate to follow Comment o to section 27 of the Restatement (Second) of Judgments. Accordingly, we hold that the circuit judge erred in giving preclusive effect to the Commission’s causation determination.
Reversed and remanded.
Pittman and Robbins, JJ., agree. | [
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Olly Neal, Judge.
Appellant Jack Peterson, Jr., appeals from an order of the Washington County Circuit Court finding him guilty of driving while intoxicated, fifth offense, violating the implied-consent law, and revoking his suspended sentence for driving while intoxicated, fourth offense. For reversal, appellant challenges the sufficiency of the evidence to support his convictions and the revocation of his suspended sentence. Appellant also asserts that the trial court erred by allowing the jury to set his sentence by applying both the DWI sentencing enhancement provision and the general habitual offender enhancement statute. We conclude that there was sufficient evidence to support appellant’s convictions and the revocation of his suspended sentence; thus, we affirm on these points. However, we agree that the court could not use the habitual offender statute in conjunction with the DWI sentencing enhancement provision, and thereby we modify appellant’s sentence from fifteen to ten years’ imprisonment.
The facts of this case are as follows. At around 3:30 p.m. on December 5, 2001, Sergeant Robert Sanchez of the Springdale Police Department was dispatched to investigate an altercation at Harp’s North. En route, dispatch informed Sergeant Sanchez that one of the suspects had left in a white Camaro. Sergeant Sanchez observed the vehicle traveling west on Christian Street and followed the vehicle to the Union Drive Apartments. At the apartment complex, Sergeant Sanchez made contact with the driver. At trial, he identified appellant as the driver. Sergeant Sanchez suspected that appellant was under the influence of alcohol and asked for appellant’s identification. At that time, Officer Jeff Taylor arrived to assist Sergeant Sanchez. Officer Taylor had appellant perform a series of field sobriety tests. After appellant failed each test, he was placed under arrest and transported to the Springdale Police Department for a Breathalyzer test. At the station, appellant refused to submit to the Breathalyzer test. He was subsequently charged with driving while intoxicated, fifth offense, and violation of the implied consent law. The State also petitioned to revoke appellant’s thirty-six months’ suspended sentence for driving while intoxicated, fourth offense.
At appellant’s April 4, 2002, jury trial on the driving while intoxicated charge and violation of the implied-consent law, the court also considered the revocation of appellant’s suspended sentence. During the trial, Sergeant Sanchez testified that:
He [appellant] was pretty rattled trying to tell me about this fight and I noticed he had obviously been drinking, he had a strong odor of intoxicants coming from him and at that point I realized he was probably DWI. I think it was obvious in his demeanor that he’d been drinking. By his demeanor, I mean the way he was talking and he was extremely rattled.
Sergeant Sanchez also testified that during his contact with appellant he did not observe any drowsiness, nausea, or vomiting. He further testified that he did not have an opportunity to determine if appellant’s pupils were unequal in size or whether appellant had any unusual eye movements.
Officer Taylor testified that while talking to appellant he too noticed a strong odor of intoxicants coming from appellant’s person. He said that when questioned, appellant admitted to consuming two beers. Officer Taylor also testified that during his contact with appellant, he noted that appellant had slurred speech, unusual eye movement, and that he appeared confused.
Officer Taylor stated that he had appellant perform a series of field sobriety tests and that the first test was the horizontal gaze nystagmus test (HGN). Officer Taylor explained that there are six clues that he looks for during the test and that appellant faded the test after he found six of six clues. He stated that during the HGN test “I had lack of smooth pursuit of both eyes which means it was moving like windshield wipers. I had maximum deviation on both eyes. When I pulled it out to the maximum deviation both eyes were jerking, and then prior to onset forty-five degrees both eyes were jerking.”
Officer Taylor testified that the next test was the walk-and-turn test. He stated that he explained and demonstrated the test to appellant and that appellant said he could not perform the test even if he was sober. Officer Taylor went on to state that:
When he [appellant] started the test, he touched heel to toe, and on the fourth step he raised his arms to his side or actually about shoulder level. He was supposed to keep his arms to his side. He took ten steps instead of nine and then when he turned around he did the same thing. He took ten steps and raised his arms to his side or to his shoulders. He failed the walk and turn test in my opinion. There are eight clues we look for on that test. If they perform two of those clues they’re considered failing. The clues are failing to keep balance while walking, stepping off the line, taking an incorrect number of steps, raising arms for balance, failing to touch heel to toe, performing an improper turn, failing to complete the test, or failing to take all the required steps. He took too many steps and he raised his arms to his shoulder.
Officer Taylor explained that during the walk-and-turn test the subject is allowed to raise his arms six inches.
Officer Taylor testified that prior to performing the one-leg stand test, appellant informed him that his left leg was bad and that he gave appellant the option of choosing which leg h¿ wanted to stand on. He stated that appellant chose to stand on his left leg. Officer Taylor further stated that appellant “stood there for about three seconds and started hopping a little bit and then put his foot down and switched legs and then raised his left leg and stood on his right leg for about five seconds before putting it down again.” Officer Taylor testified that because appellant hopped and put his foot down, he failed the test. Based on the totality of the circumstances, Officer Taylor stated that he placed appellant under arrest for driving while intoxicated. Officer Taylor testified that when appellant indicated he did not understand the “implied consent warning,” he read the warning to appellant. He stated that after having the warning read to him several times, appellant still did not understand the warning. Officer Taylor testified that due to appellant’s failure to understand, his only option was to enter a refusal into the Breathalyzer. Officer Taylor testified that he also read the “right to another test form” to appellant. He stated that appellant refused to sign the form and that he refused to initial as to whether he understood the form.
The jury returned a guilty verdict, and the court revoked appellant’s suspended sentence, finding that appellant had violated the terms and conditions of his suspended sentence. He was sentenced as a habitual offender to fifteen years’ imprisonment for driving while intoxicated, fifth offense, and violation of the implied consent law, and was sentenced to three years’ imprisonment for the revocation of his suspended sentence. The court ran the sentences consecutively.
In his first point for reversal, appellant asserts that the trial court erred in failing to grant his motions for directed verdicts. A motion for directed verdict is a challenge to the sufficiency of the evidence. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Turner v. State, 349 Ark. 715, 80 S.W.3d 382 (2002). When the defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id.
Appellant challenges the sufficiency of the evidence to support his conviction for driving while intoxicated, fifth offense. He specifically asserts that there was no evidence that he was intoxicated. Pursuant to our DWI statute, a person violates the law by either operating a motor vehicle while intoxicated or operating a motor vehicle with a blood-alcohol content of eight-hundredths (0.08) or more. Ark. Code Ann. § 5-65-103 (Supp. 2001); see also White v. State, 73 Ark. App. 264, 42 S.W.3d 584 (2001). Intoxicated is defined as:
influenced or affected by the ingestion of alcohol, a controlled substance, any intoxicant, or any combination thereof, to such a degree that the driver’s reactions, motor skills, and judgment are substantially altered and the driver, therefore, constitutes a clear and substantial danger of physical injury or death to himself and other motorists or pedestrians.
Ark. Code Ann. § 5-65-102(1) (Repl. 1997). The observations of police officers with regard to the smell of alcohol and actions consistent with intoxication can constitute competent evidence to support a DWI charge. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Opinion testimony regarding intoxication is admissible. Id. Furthermore, the refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt. Id.
Here, appellant failed the field sobriety tests and refused to submit to a Breathalyzer test. Officer Taylor and Sergeant Sanchez both testified that they smelled intoxicants on appellant’s person. They opined that they believed appellant was intoxicated. There was also evidence that appellant had four prior driving while intoxicated convictions. Therefore, we cannot say that appellant’s conviction for driving while intoxicated, fifth offense, was not supported by substantial evidence.
Appellant also challenges the sufficiency of the evidence to support his conviction for violating the implied-consent law. He asserts that there was no evidence that the officer had reasonable cause to suspect that he was intoxicated. Our implied-consent law provides that:
(a) Any person who operates a motor vehicle or is in actual physical control of a motor vehicle in this State shall be deemed to have given consent, subject to the provisions of § 5-65-203, 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 breath or blood if:
(1) The driver is arrested for any offense arising out of acts alleged to have been committed while the person was driving while intoxicated or driving while there was an alcohol concentration of eight-hundredths (0.08) or more in the person’s breath or blood; or
(2) The person is involved in an accident while operating or in actual physical control of a motor vehicle; or
(3) At the time the person is arrested for driving while intoxicated, the law enforcement officer has reasonable cause to believe that the person, while operating or in actual physical control of a motor vehicle, is intoxicated or has an alcohol concentration of eight-hundredths (0.08) or more in the person’s breath or blood.
Ark. Code Ann. § 5-65-202 (Supp. 2001). In Parsons v. State, 313 Ark. 224, 853 S.W.2d 276 (1993), our supreme court stated that it reads section 5-65-202(a)(3) to mean that the officer must develop a reasonable belief of intoxication at the time of arrest. Based on the evidence before us,' Officer Taylor had a reasonable belief that appellant was intoxicated.
Appellant further asserts that the revocation of his suspended sentence was not supported by substantial evidence. To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). In order for appellant’s suspended sentence to be revoked, the State need only prove that the appellant committed one violation of the conditions. Id. On appeal, the trial court’s findings will be upheld unless they are clearly against a preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge’s superior position. Id.
Appellant’s suspended sentence was conditioned upon his good behavior, paying fines and costs, and following the recommendations of the Ozark Guidance Center. Appellant’s arrest and subsequent convictions were in violation of the terms of his suspended sentence; therefore, we affirm the revocation of appellant’s suspended sentence.
In his last point for reversal, appellant asserts that the trial court erred by allowing the jury to set his sentence by applying both the DWI enhancement provision for a fifth offense under Ark. Code Ann. § 5-65-111 (b)(4) (Supp. 2001), and the general habitual-offender enhancement statute under Ark. Code Ann. § 5-4-501(a)(3)(F) (Supp. 2001). We interpret this as an assertion that his sentence is illegal on its face.
The State concedes that appellant’s sentence was not authorized under section 5-65-111 (b)(4), and we agree. Section 5-65-111 (b)(4) provides that:
Any person who pleads guilty or nolo contendere to or is found guilty of violating § 5-65-103 or any other equivalent penal law of another state or foreign jurisdiction shall be imprisoned or shall be ordered to perform public service in lieu of jail as follows:
* * *
(4) For at least two (2) years but no more than ten (10) years for the fifth or subsequent offense occurring within five (5) years of the first offense or not less than two (2) years of community service and shall be guilty of a felony.
In Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988), our supreme court held that the DWI enhancement statute should not be coupled with the habitual-offender statute for the purpose of creating a greater sentence than if either statute had been applied singly. Thus, appellant’s sentence is illegal on its face because it exceeded the maximum sentence allowed under section 5-65-111(b)(4). See Cooley v. State, 322 Ark. 348, 909 S.W.2d 312 (1995). Where the trial court’s error has nothing to do with the issue of culpability and relates only to punishment, we may correct the error in lieu of reversing and remanding the case. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996). Therefore, we modify appellant’s sentence to ten years’ imprisonment.
Affirmed as modified.
Stroud, C.J., and Vaught, J., agree. | [
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John B. Robbins, Judge.
Appellant David Vallaroutto d/b/a Albertson’s Liquor appeals the denial of an application to transfer an existing liquor permit to a new location. The Alcoholic Beverage Control Board denied the application on the ground that the public convenience and advantage would not be served by the transfer. The Pulaski County Circuit Court affirmed the Board’s decision, and this appeal followed. We affirm the Board, and our holding renders the Board’s cross-appeal moot.
Albertson’s operates a large retail grocery store in Texarkana. The store sits on a lot that is bound on the north by Arkansas Boulevard; on the east by Laurel Street; on the south by East 37th Street; and on the west by State Line Avenue, the street that serves as the border between Texarkana, Arkansas, and Texarkana, Texas. In December 1998, Albertson’s purchased an existing retail liquor permit from Margaret Gleason with the goal of constructing and operating a liquor store on the northwest corner of its lot, near the intersection of Arkansas Boulevard and State Line Avenue. Gleason had held the permit since 1968, and thus it was not subject to the present-day prohibition against transferring liquor permits to the operators of grocery stores. See Ark. Code Ann. § 3-4-218(a) and (b) (Supp. 2001).
On September 15, 1999, Albertson’s filed an application with the Alcoholic Beverage Control Director, seeking permission to transfer the location of the Gleason permit to the proposed construction site on its lot. The application was rejected on October 20, 1999, based on objections from local officials and area businesses and residents, primarily due to concerns over traffic congestion. Thereafter, Albertson’s re-filed its application and proposed that the liquor store be located at the south end of the property, facing 37th Street. Albertson’s hoped that, by moving the store away from the Arkansas/State Line intersection, its application would meet with greater favor.
On March 16, 2000, the Director again denied the application. Albertson’s appealed the Director’s decision to the Board, and a hearing was held on September 20, 2000, during which the Board heard the testimony of over a dozen witnesses and received petitions both for and against the transfer. Following the hearing, the Board denied Albertson’s application, concluding that:
Based on the existing number of retail liquor stores in this immediate market area, [and on] the probability that if the outlet transfer is approved that there will be additional traffic problems and additional vehicular accidents, the Board finds that the public convenience and advantage will not be served by granting the transfer. . . .
Albertson’s appealed the Board’s ruling to the Pulaski County Circuit Court. The court affirmed the Board’s decision, and this appeal was brought by Albertson’s.
Albertson’s argues first that the Board failed to make sufficient findings of fact as required by the Administrative Procedure Act. See Ark. Code Ann. § 25-15-210(b)(2) (Repl. 2002). Whether sufficient findings of fact have been made is a threshold question in an appeal from an administrative board. See Olsten Health Servs. Inc. v. Arkansas Health Servs. Comm’n, 69 Ark. App. 313, 12 S.W.3d 656 (2000).
Albertson’s relies on Green House, Inc. v. Arkansas Alcoholic Beverage Control Div., 29 Ark. App. 229, 780 S.W.2d 347 (1989), to support its argument that this case should be remanded for additional findings of fact. In Green House, the Board’s “findings” consisted of a narrative account of the proceedings and the witnesses’ testimony, followed by the conclusion that the permit applied for was not in the public interest. In remanding the case for further proceedings, we said:
Because the Board has merely recited the testimony rather than translating that testimony into findings of fact, we are unable to determine the Board’s view of the facts, or the theory of law on which the denial of the permit was based. We addressed a similar situation in Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986), where we quoted the following language from Whispering Pines Home for Senior Citizens v. Nicalek, 48 Ind. Dec. 568, 333 N.E.2d 324 (1975):
Once again, therefore, we attempt to tell the Board what a satisfactory specific finding of fact is.
It is a simple, straightforward statement of what happened. A statement of what the Board finds has happened; not a statement that a witness, or witnesses, testified thus and so. It is stated in sufficient relevant detail to make it mentally graphic, i.e., it enables the reader to picture in his mind’s eye what happened. And when the reader is a reviewing court the statement must contain all the specific facts relevant to the contested issue or issues so that the court may determine whether the Board has resolved those issues in conformity with the law.
Green House, 29 Ark. App. at 232-33, 780 S.W.2d at 349-50. We recently quoted this same passage in Nesterenko v. Arkansas Bd. of Chiropractic Examiners, 76 Ark. App. 561, 69 S.W.3d 459 (2002), in which we remanded for further findings from an administrative board.
The Board’s decision in this case is a five-page document that, for fourteen paragraphs, merely recites the substance of witness testimony, the very type of evidentiary recapitulation that the Green House case cautioned against. However, that part of the document that follows the recitation of evidence reveals the pertinent facts found by the Board as the basis for its decision. The Board found that (1) based on the testimony of law enforcement officers, approval of the permit would likely increase traffic and traffic accidents in an area that already suffers a large number of accidents; and (2) based on witness testimony that there are six liquor stores within approximately a quarter of a mile of the proposed site, the area is already adequately served. The Board then concluded that the public convenience and advantage would not be served by transfer of the permit to the proposed location.
We believe that the Board’s findings and conclusions go beyond a mere recitation of evidence and are thus adequate to permit us to undertake a proper review of the Board’s ruling. We therefore proceed to the merits of the case.
Albertson’s contends that the Board’s denial of its transfer application is not supported by substantial evidence and is arbitrary and capricious. On appeal from circuit court, our review of administrative decisions is directed to the decision of the administrative agency, rather than the decision of the circuit court. Arkansas Bd. of Registration for Professional Geologists v. Ackley, 64 Ark. App. 325, 984 S.W.2d 67 (1998). We rely heavily upon the principle that administrative agencies are better equipped than courts, by specialization, insight through experience, and more flexible procedures, to determine and analyze underlying issues. Fontana v. Alcoholic Beverage Control Bd., 11 Ark. App. 214, 669 S.W.2d 487 (1984). Judicial review is limited in scope, and the administrative agency decision will be upheld if supported by substantial evidence and not arbitrary, capricious or an abuse of discretion. Arkansas Alcoholic Beverage Control Div. v. Person, 309 Ark. 588, 832 S.W.2d 249 (1992).
When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the agency’s decision. Ackley, supra. Substantial evidence is valid, legal, and persuasive evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. An absence of substantial evidence is shown by demonstrating that the proof before the agency was so nearly undisputed that fair-minded persons could not reach its conclusions. Id. The credibility and the weight of the evidence is within the agency’s discretion. Id.
We give the evidence its strongest probative force in favor of the Board’s ruling. See Chili’s of Jonesboro, Inc. v. State of Ark. Alcohol Beverage Control Div., 75 Ark. App. 239, 57 S.W.3d 228 (2001). The question on review is not whether the evidence would have supported a contrary finding but whether it supports the finding that was made. Id. The reviewing court cannot displace the Board’s choice between two fairly conflicting views even though the court might have made a different choice had the matter been before it de novo. Id.
With these standards in mind, we now set out the evidence before the Board. David Vallaroutto testified on behalf of Albert-son’s that he would be the permit holder and manager of the new liquor store; that the liquor store would have a separate entrance from the grocery store; that it would be equipped with a computerized register system, which would require presentation of an ID to verify the age of buyers; and that it would have no drive-thru window, thus discouraging underage sales. District Sales Manager Fred Bennett testified that sales from the liquor store would be credited to Albertson’s Community Partners Card Program, in which the store contributes money to charities based on cards that are scanned at check-out. He also said that the new store would be comfortable and well-lit with wide aisles and, further, that Albertson’s successfully operated several liquor stores in Louisiana. Albertson’s employee Jackie Richardson testified that Albertson’s had not been cited for selling to an underage buyer. Grocery Manager Spyres testified that he believed that it would be in the public’s convenience to buy liquor from the same premises as the very secure Albertson’s grocery lot.
Ernest Peters, a professional engineer, testified on Albertson’s behalf that the proposed liquor store would have “an unperceivable impact” on either traffic or accidents in the vicinity. He based his opinion on vehicle-per-day usage data from 1985 to 1999 and an on-site traffic count conducted in January 2000, which showed usage of State Line Avenue by 20,000 vehicles per day, a figure below 1987-96 levels. Peters also relied on data from the Texarkana, Arkansas, city police department that, between January 1998 and October 1999, twenty-three accidents occurred in the quarter-mile area surrounding the .Arkansas/State Line intersection. However, he admitted on cross-examination that he had not obtained any accident figures from the Texarkana, Texas, police department. Peters’s report also indicated that the liquor store would generate considerably fewer weekday visits than a fast-food restaurant.
Albertson’s also placed into evidence (1) petitions and testimony from area residents in favor of the transfer; (2) the testimony of Stacy Pittman, an anti-drunk driving advocate who praised Albertson’s for not having a drive-thru window and for its system that requires presentation of an ID before a sale is made; and (3) the testimony of Carol Conley, the city Director of Public Works, who testified that, pending a look at the actual store plans, he had no opposition to the transfer of the permit.
Those opposing the transfer presented the Board with letters of opposition from local officials and liquor store owners, along with a petition signed by area residents opposing the transfer. The following witnesses also testified in opposition: (1) Jim Nicholas, a Miller County deputy who was present to testify on behalf of the county sheriff. Nicholas said that he was familiar with traffic patterns in the area of the proposed liquor store and that he believed the store would increase traffic and safety problems in the area. He also stated that six liquor stores were already concentrated in the subject area along State Line Avenue and that he and the sheriff believed that the public was already adequately served by those stores; (2) Shawn Vaughn, a Texarkana, Arkansas, police officer, who testified on behalf of the city police chief. Vaughn stated that the chief opposed the new store because of his concern that traffic would be increased in an already congested area. He also said that his department had worked twenty-four accidents on the Arkansas side of the State Line/Arkansas Boulevard intersection in the past two years and that he believed there were a similar number on the Texas side; (3) Tom Wooten, a former liquor store owner, who testified as to the concentration of liquor stores along State Line Avenue and that, in the past ten to twelve years, seventeen liquor stores had closed in Miller County due to lack of business; and (4) Scott Womack, a current owner of a liquor store in the subject area, who testified regarding the large number of traffic accidents in the vicinity since September of 1999.
It is the public policy of the State of Arkansas that the number of permits to dispense vinous (except wines), spirituous, or malt liquor shall be restricted. Ark. Code Ann. § 3-4-201(a) (Repl. 1996). See also Carder v. Hemstock, 5 Ark. App. 115, 633 S.W.2d 384 (1982); Stringfellow v. Alcoholic Beverage Control Bd., 3 Ark. App. 124, 623 S.W.2d 213 (1981). The Board is empowered to determine whether public convenience and advantage will be promoted by issuing the permits and by increasing or decreasing the number thereof. Ark. Code Ann. § 3-4-201(b) (Repl. 1996). Albertson’s had the burden of proving that the public convenience and advantage would be promoted by transfer of the permit. Marshall v. Alcoholic Beverage Control Bd., 15 Ark. App. 255, 692 S.W.2d 258 (1985).
The term “public convenience” is not defined in our statutes; however, the supreme court noted in Fayetteville School Dist. No. 1 v. Alcoholic Beverage Control Bd., 279 Ark. 89, 648 S.W.2d 804 (1983), that reference to the public convenience and advantage means that the interest of the general public is to be considered, not merely that of the applicant. Also, this court has stated that public convenience and advantage should not be restricted to a colloquial sense as synonymous with “handy or easy of access” but construed in that sense which connotes suitable and fitting to supply the public needs to the public advantage. See Carder v. Hemstock, supra. See also Arkansas Alcoholic Beverage Control Bd. v. Muncrief, 308 Ark. 373, 825 S.W.2d 816 (1992). The factors to be considered by the Board in determining public convenience and advantage include the number and types of alcohol permits in the area, economic impact, traffic hazards, remoteness of the area, degree of law enforcement available, input from law enforcement and other public officials in the area, and comments in opposition or support from area residents. Edwards v. Arkansas Alcoholic Beverage Control Div., 307 Ark. 245, 819 S.W.2d 271 (1991).
Upon viewing the entire record, we decline to reverse the Board’s decision for lack of substantial evidence. As to the Board’s finding that if the transfer were approved there would be additional traffic problems and vehicular accidents, we note that the potential for traffic problems has been approved of as a factor to consider in denying a liquor permit. See, e.g., Carder v. Hemstock, supra; Stringfellow v. Alcoholic Beverage Control Bd., supra. However, we agree with Albertson’s that, although the opposition in this case proved that the area in question suffered from traffic problems, none of the opposition witnesses offered anything other than mere speculation as to how the new liquor store would adversely affect these problems, especially in light of Ernest Peters’s report regarding the lack of perceivable impact the store would have in this regard. See Fouch v. State, 10 Ark. App. 139, 662 S.W.2d 181 (1983) (where we found a lack of substantial evidence to support the Board’s finding that a new retail liquor outlet would greatly increase the existing traffic problem where the testimony was that the new store would not cause any more of a traffic problem than a restaurant or other facility).
Nevertheless, we are persuaded that the Board’s decision is supportable on its finding that the area is adequately served by the existing liquor stores nearby. This, too, is a proper consideration in determining whether the proposed outlet would serve the public convenience and advantage. See Edwards v. Arkansas Alcoholic Beverage Control Div., supra. We believe that the Board was entitled to rely on the opinion of area residents and public officials that the six existing liquor stores in the quarter-mile area already served the public convenience, thus obviating the need for another. As we stated earlier, administrative agencies are better equipped than courts by specialization, insight through experience, and more flexible procedures to determine and analyze underlying issues. We also reiterate that, as per our statutes, it is the public policy of the State of Arkansas that the number of liquor permits shall be restricted, Ark. Code Ann. § 3-4-201 (a) (Repl. 1996), and that the Board is empowered to determine whether public convenience and advantage will be promoted by issuing the permits. Ark. Code Ann. § 3-4-201(b) (Repl. 1996). Here, various officials and citizens who were well-acquainted with the area stated their belief that the existing liquor stores were adequate to serve the public. Further, there was no clear proof that Albertson’s could offer the public any convenience and advantage that was not already met by the existing stores. See Carder v. Hemstock, supra. See also Fouch v. State, supra (where the applicant submitted proof of the area’s demand for its products and proof that other liquor stores did not carry particular products).
While we are mindful of Albertson’s contention that the opposition evidence was adduced merely to squelch the entry of a powerful competitor such as Albertson’s into the market, the Board did not so find, and we defer to its superior ability to judge the credibility of the testimony before it.
In light of the foregoing, we conclude that, even though we disagree with the Board’s finding regarding the proposed store’s effect on traffic problems, when the record is viewed as a whole, the Board’s decision was supported by substantial evidence. See Stringfellow v. Alcoholic Beverage Control Bd., supra. That being the case, it follows that the Board’s decision was not arbitrary or capricious. See Curen v. Arkansas Professional Bail Bondsman Lic. Bd., 79 Ark. App. 43, 84 S.W.3d 47 (2002).
Our holding renders moot the Board’s cross-appeal on the ground that Albertson’s application for the transfer permit was not timely filed.
Affirmed.
Pittman, J., agrees.
Vaught, J., concurs. | [
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John F. Stroud, Jr., Chief Judge.
Appellant, Herbert Marshall, suffered a compensable mental injury as a result of his duties as chief deputy of Madison County. The facts of this case are largely undisputed and can be quickly summarized. On August 24, 1999, appellant was involved in a “shootout” during which a fellow officer was wounded, appellant was hit by bullet fragments, and appellant shot and killed the assailant. His psychological evaluation included depression, anxiety, and post-traumatic-stress disorder. He continued working for approximately six months, until February 2000, when he came close to “going totally ape,” and was afraid that he was either going to have to kill someone else or somebody was going to kill him. His employer accepted the August 24, 1999 episode as a compensable mental injury and began to pay him temporary total disability benefits. It is not disputed that he received twenty-six weeks of temporary total disability benefits related to that injury, from February 7, 2000, through August 6, 2000. He then sought additional disability benefits, however, beyond those initial twenty-six weeks. The Administrative Law Judge denied his request for additional disability benefits, and the Commission affirmed and adopted the ALJ’s decision. We affirm.
We affirm the Commission’s decisions unless fair-minded persons with the same facts before them could not arrive at the same conclusions. Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). In cases where a claim is denied because a claimant failed to show entitlement to compensation by a preponderance of the evidence, the substantial-evidence standard of review requires that we affirm if a substantial basis for the denial of relief is displayed by the Commission’s opinion. Hooks v. Gaylord Container Corp., 67 Ark. App. 159, 992 S.W.2d 844 (1999).
Arkansas Code Annotated section 11-9-113 (Repl. 2002) provides in pertinent part:
(a)(1) A mental injury or illness is not a compensable injury unless it is caused by physical injury to the employee’s body, and shall not be considered an injury arising out of and in the course of employment or compensable unless it is demonstrated by a preponderance of the evidence; provided, however, that this physical injury limitation shall not apply to any victim of a crime of violence.
(2) No mental injury or illness under this section shall be compensable unless it is also diagnosed by a licensed psychiatrist or psychologist and unless the diagnosis of the condition meets the criteria established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders.
(b)(1) Notwithstanding any other provision of this chapter, where a claim is by reason of mental injury or illness, the employee shall be limited to twenty-six (26) weeks of disability benefits.
(Emphasis added.) Appellant contends on appeal that, because the General Assembly excepted victims of violent crime from proving that their mental injury was caused by physical injury, Ark. Code Ann. § ll-9-113(a)(l) (Repl. 2002), it likewise intended to except such victims of violent crime from the twenty-six-week limitation set forth in section 11 — 9—113(b)(1). We disagree.
There is nothing in the language of the quoted statute to support appellant’s argument that victims of violent crime are not subject to the twenty-six-week limitation on disability benefits. Neither has he provided us with any other legal authority to support his position. Arkansas Code Annotated section 11 — 9— 704(c)(3) (Repl. 2002) mandates that the Commission and the courts construe the provisions of the act strictly. Strict construction is a narrow construction, requiring that nothing be taken as intended that is not clearly expressed and that the plain meaning of the language be employed. Clayton Kidd Logging Co. v. McGee, 77 Ark. App. 226, 72 S.W.3d 557 (2002).
The ALJ was presented with, and addressed, issues concerning an episode involving appellant and a private investigator that occurred on May 21, 2000. However, appellant has abandoned those issues on appeal; therefore, we do not address them. Mecco Seed Co. v. London, 47 Ark. App. 121, 886 S.W.2d 882 (1994) (explaining that an argument not raised by the appellant in his brief cannot be considered by this court on appeal).
We find that the Commission displayed a substantial basis for the denial of the relief requested by appellant.
Affirmed.
Hart and Griffen, JJ., agree. | [
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Josephine Linker Hart, Judge.
Appellant, Martha Ann Rutherford, argues that the trial court erred in refusing to enforce a marital separation agreement that she and appellee, Donald Rutherford, entered into. The separation agreement was filed on the same date as the complaint for divorce. While the trial judge granted appellee a divorce, he declined to enforce the agreement between the parties, finding that appellant had breached the agreement. Further, the trial judge accepted appel-lee’s contentions that appellant used undue influence, duress, and fraud in the inducement to obtain appellee’s consent to the agreement. We conclude that the trial court properly refused to enforce the agreement.
After more than ten years of marriage, appellee filed a complaint for divorce on June 21, 2001, that provided in part that the parties and their attorneys had executed and filed a separate “waiver, entry of appearance, agreement, and stipulation” (hereinafter “settlement agreement”) for the trial court’s consideration and approval. The agreement provided, among other things, for a division of the parties’ property upon divorce. Although no answer was filed, appellant did file a counterclaim requesting that the court enforce the property-settlement agreement, which was signed by both parties and approved by their attorneys. Before the case was presented, appellee filed a withdrawal of agreement and petition for an equitable property division on January 25, 2002.
Following a hearing on March 4, 2002, the trial court entered a divorce decree on April 10, 2002. The court refused to incorporate the June 2001 settlement agreement that divided the personal property, gave appellant the marital home, required appellee to pay the outstanding indebtedness owed on the home, and gave appellee seven acres of “hill ground.” Instead, the trial court determined that the property was incapable of division, and with the exception of personal jewelry and clothing, all real and personal property was to be sold by the clerk of the court with the proceeds to be applied to the payment of marital debts and any remainder to be split equally between the parties. From that order comes this appeal.
Our standard of review in this case is de novo. Dalrymple v. Dalrymple, 74 Ark. App. 372, 47 S.W.3d 920 (2001). In Middleton v. Lockhart, 344 Ark. 572, 43 S.W.3d 113 (2001), our supreme court concluded that a court of equity ‘is a court of conscience and it should consider the relative position of the parties and “render a decree that does substantial justice to all.” We will not reverse the chancellor unless his findings are clearly erroneous. Bagwell v. Bagwell, 282 Ark. 403, 668 S.W.2d 949 (1984). Further, the supreme court has “gone on to say that under ARCP Rule 52 we will not reverse the [C]hancellor’s division of property in divorce unless that division can be said to be clearly against the preponderance of the evidence.” Id. at 406, 668 S.W.2d at 951 (citing Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982)). Due deference is given to the chancellor’s superior ability to determine the credibility of the witnesses and the weight to be accorded their testimony. Dalrymple, supra (citing Hunt v. Hunt, 341 Ark. 173, 15 S.W.3d 334 (2000)).
For her sole point on appeal, appellant contends that the trial court erred in refusing to enforce the June 2001 settlement agreement as part of the divorce decree. Appellant argues that the motivating force in appellee’s desire to obtain a divorce was that he was involved with another woman. In support of her argument, appellant directs our attention to appellee’s testimony that his attorney prepared the settlement agreement because appellee wanted out of the marriage and that appellee had an opportunity to ask his attorney’s advice before signing. Appellee testified that nothing else influenced him to consent to the agreement other than the fact that he “wanted out of the marriage.” Moreover, appellant notes that appellee stated that he knew that she was “getting more under the agreement” than he was at the time he signed it. Appellant concludes that appellee’s testimony belies any claim of undue influence, duress, or fraud in the inducement by appellant.
According to the settlement agreement, appellee was to receive the washer and dryer from the parties’ prior home. Referring to the appliances, appellee testified that appellant threatened to “cut it up” before he would get them. He testified that following the execution of the agreement, appellant slashed the tires on the trailer he had used to move his personal property and that she broke into his house and cut the hoses off the washer and dryer, broke the commode, and left the faucet on the bathtub running. Appellant admitted at the hearing that she pled guilty to the charges of DWI and disorderly conduct after she had broken into appellee’s home and damaged the washer and dryer. Moreover, appellant admitted to cutting appellee’s tires but asserted that she paid appellee for the damage he had incurred as a result of her actions.
Appellee also testified that he was influenced to consent to the agreement because appellant threatened to burn the house if she did not receive the home in the settlement agreement. Appel-lee stated that he was actually concerned that appellant would in fact burn down the house because she had burned their previous home. In testimony concerning the previous fire, appellee stated that appellant told him that she would “burn it to the ground,” and he stated that she set'fire to that house while he went to Black Rock to visit her father.
Jamie Lois Ellis, an acquaintance of appellant, testified that she spoke with appellant two or three days after the agreement was signed. According to Ellis, appellant told her that after getting drunk she broke into appellee’s house, and tore up the washer and dryer. Further, appellant told Ellis that she “broke the contract and was afraid she was going to lose everything.” Ellis’s testimony reflects that she was aware that the parties’ previous house had burned. Ellis stated that appellant told her after the parties had separated that “she used lighter fluid and set the house on fire.”
Appellant, however, testified that she “accidently left grease on the stove and went outside and . . . burnt [the] house by leaving grease on the stove.” Appellant noted that no charges were filed in connection with the fire, and that she and appellee did not collect insurance for the damage.
In the divorce decree, the trial court found that appellee anticipated an easy, inexpensive, and uncontested divorce pursuant to the terms of the settlement agreement. In refusing to incorporate the agreement into the divorce decree, the trial court found that appellant had substantially breached the terms of the agreement less than ten days after its execution and before any approval by the court. Moreover, the trial court accepted appellee’s contentions that undue influence, duress, and fraud in the inducement were exerted by appellant to obtain the agreement.
The question presented by this appeal is whether an agreement of the parties may usurp the authority of the court to divide the marital property before a divorce is granted. Arkansas Code Annotated section 9-12-315 (Repl. 2002) clearly directs that all marital property shall be distributed at the time the decree of divorce is entered. That statute defines marital property as “all property acquired by either spouse subsequent to the marriage except: . . . property excluded by valid agreement of the parties.”
Neither appellant nor appellee has cited any cases where the trial court refused to accept a property-settlement agreement and incorporate it into the divorce decree. Appellant relies on Helms v. Helms, 318 Ark. 143, 875 S.W.2d 849 (1994), and Carden v. McDonald, 69 Ark. App. 257, 12 S.W.3d 643 (2000), to support her first argument. However, both of these cases involve post-decree requirements for modifying agreements that had been incorporated into the divorce decree. In Helms, our supreme court held that in the absence of fraudulent inducement in executing an integrated property setdement agreement, a divorce decree may not be judicially modified. Id. The court further stated that the fact that the husband had entered into an agreement which was not to his liking was no ground for relief. Id. Likewise, appellant cited Carden for the proposition that one party’s displeasure with an agreement that she had previously entered into is no ground for relief.
Appellant relies on Arkansas Code Annotated section 9-12-313 (Repl. 2002) as authority for the proposition that the court should enforce a valid agreement of the parties. Section 9-12-313 provides in part that a court “may enforce the performance of a written agreement between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the property of either party.”
However, in Womack v. Womack, 16 Ark. App. 108, 110, 697 S.W.2d 930, 931 (1985), this court discussed two cases in which the supreme court explained that it was not bound by the parties’ agreement in a divorce action:
In Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700 (1908), the court said: “The court is not, in the first instance, bound by the agreement of the parties concerning the amount of alimony to be allowed to the wife.” The Court explained the matter in this way: “This is so because the court is moved to action by principles of justice and equity, and is not bound to follow the agreement of the parties against what appears to be the justice of the case.”
In Bachus v. Bachus, 216 Ark. 802, 227 S.W.2d 439 (1950), the court said:
The parties to a divorce action may agree upon the alimony or maintenance to be paid. Although the court is not bound by the litigants’ contract, nevertheless if the court approves the setdement and awards support money upon that basis there is then no power to modify the decree at a later date.
Further, we note that in McCue v. McCue, 210 Ark. 826, 832, 197 S.W.2d 938, 941 (1946), our supreme court stated, “[CJertainly the Court is not bound by an agreement [that a] disputing husband and wife may enter into, in order to terminate a controversy; and this is true even in the absence of fraud or coercion.”
In our view, the court is not bound by a stipulation entered into by the parties: rather, it is within the sound discretion of the court to approve, disapprove, or modify the agreement. Arkansas Code Annotated section 9-12-313 merely provides the court with the means to enforce an agreement entered into and approved by the court and does not limit the court’s discretion to accept or reject the agreement of the disputing parties. Even so, the trial court in exercising its discretion in the division of property matters must consider the factors set out in section.9-12-315. Thus, based on the evidence in this case, we cannot say that the trial court’s refusal to enforce the settlement agreement was clearly erroneous.
In view of our holding, we do not address appellant’s second argument that appellee’s consent was not the result of undue influence, duress, or fraud in the inducement. Therefore, we afflrm.
Affirmed.
Pittman and Gladwin, JJ., agree. | [
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Sam Bird, Judge.
The appellant, Danny K. Snyder, was discharged from his employment with Eaton Aeroquip, Inc., and filed a claim for unemployment benefits. The Board of Review denied benefits upon finding that Snyder was discharged for misconduct in connection with the work, and Snyder appeals. He contends that the Board erred in finding that he was discharged for misconduct in connection with the work. We find no error and we affirm.
We do not conduct a de novo review in appeals from the Board of Review. Brooks v. Director, 62 Ark. App. 85, 966 S.W.2d 941 (1998). In appeals of unemployment compensation cases we instead review the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the Board of Review’s findings. Id. The findings of fact made by the Board of Review are conclusive if supported by substantial evidence; even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could have reasonably reached its decision based upon the evidence before it. Bennett v. Director, 73 Ark. App. 281, 42 S.W.2d 588 (2001); Brooks v. Director, supra. Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Bennett v. Director, supra.
Pursuant to Ark. Code Ann. § ll-10-514(a) (Repl. 2002), an individual shall be disqualified for employment benefits if he is discharged from his last work for misconduct in connection with the work. If the discharge was for misconduct in the form of dishonesty, he or she shall be disqualified from the date of fifing the claim until he or she shall have ten weeks of employment in each of which he or she shall have earned wages equal to at least his weekly benefit amount. Ark. Code Ann. § ll-10-514(b) (Repl. 2002).
We have said that the term “misconduct,” as used in this statute, involves disregard of the employer’s interests, violation of the employer’s rules, disregard of the standards of behavior which the employer has the right to expect of his employees, and disregard of the employee’s duties and obligations to his employer. Nibco, Inc. v. Metcalf, 1 Ark. App. 114, 613 S.W.2d 612 (1981).
To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inad-vertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.
Id. at 118, 613 S.W.2d at 614.
In the present case, the Board of Review based its conclusion that appellant was discharged for misconduct in connection with the work on account of dishonesty on the following findings of fact:
The claimant worked in the finishing work cell. On October 26, 2002, while working,- the claimant injured his left hand, for which he underwent surgery. The claimant was placed on light duty and since that time he has continued to work under this restriction. In late April, the claimant coiled hose, which was classified as work outside the scope of his restriction. The claimant used [another employee’s] number to log the work. This was brought to management’s attention, and the claimant was discharged for falsifying company records.
At the hearing, Snyder was asked several times by the Appeal Tribunal hearing officer why he used another employee’s number, instead of his own, in signing off on work that he had performed:
Hearing Officer: Why didn’t you use your own number?
Snyder: Well, I should have, but I didn’t.
Hearing Officer: Why didn’t you?
Snyder: Because Kellay Rand was going to use it to finish under his number.
Hearing Officer: Why did you use, Mr. Snyder, someone else’s number rather than your own number?
Snyder: There is no real reason.
Hearing Officer: There had to be a reason for you not to use your number. What were you attempting to hide or conceal?
Snyder: I wasn’t trying to attempt anything.
Hearing Officer: Well, why didn’t you use your number?
Snyder: Well, like I said, I have no excuse, for not, I should have.
Hearing Officer: Were you supposed to be doing this type of work?
Snyder: Technically, no.
Hearing Officer: Why?
Snyder: Well, I was limited to one hand.
Hearing Officer: You were on light-duty work?
Snyder: Right.
From this series of questions and answers, it is clear that Snyder knew he had been limited by his employer to light-duty work; that he knew Kellay Rand’s job was not light-duty work; that he knew he was not supposed to use another employee’s number in signing off on work that he performed; and that he knew he was wrong to have used Rand’s number on this occasion. Furthermore, later in the hearing, Snyder testified that he agreed with his employer that using Rand’s employee number was “a bad mistake, [and he] should not have done it.” Snyder even agreed that his action justified disciplinary action, such as a warning or a three-day suspension without pay, but he did not think that his mistake justified being fired. Snyder never claimed that he did not know about his employer’s prohibition against using another employee’s number to sign off on work that he performed. Rather, he thought that his punishment was too harsh, and he complained that he was not aware he could be fired for using another employee’s number.
The dissenting judges consider it noteworthy that the Board of Review made no finding that Snyder had been warned that using another employee’s number on work he performed would result in his discharge. It is not the function of the Employment Security Division, the Appeal Tribunal, or the Board of Review to determine which infractions of an employer’s rules justify an employee’s discharge. Rather, it is the function of those agencies to determine whether the employee was discharged for misconduct in connection with the work. See Baldor Elec. Co. v. Arkansas Empl. Sec. Dep’t, 71 Ark. App. 166, 27 S.W.3d (2000). On the basis of the evidence presented at the hearing, the Appeal Tribunal concluded:
The claimant admitted that while medically restricted to light-duty work, he performed work that included heavy lifting and used Rand’s employee number to log the work. His actions were dishonest. Therefore, the claimant was discharged from last work for misconduct in connection with the work on account of dishonesty.
The Board of Review adopted the decision of the Appeal Tribunal. It is the duty of this court to affirm the decision of the Board of Review if it is supported by substantial evidence. See Bennett, supra. It is difficult to imagine how evidence of an employee’s dishonesty could be any more substantial than to have the employee admit that he knew of his employer’s policy, admit that he violated it, admit that he knew he was violating it, and offer as the only explanation for his conduct that, “I made a bad mistake. I shouldn’t have done it.”
The dissenting judges also consider it significant that the Board of Review made no finding that Snyder was untruthful when he testified that he had earlier, at the request of his supervisor, performed work that was outside his medical restriction. While it is true that Snyder testified that he had been requested by his supervisor to coil hoses on an earlier occasion, he also testified that on that occasion he used his own employee number to sign off on the work that he performed. He offered no explanation as to why he used his own number on the earlier occasion but Rand’s number on the occasion that led to his discharge. The Board of Review concluded that Snyder was discharged not for misconduct in performing work outside his medical restriction, but for dishonesty in falsifying the work order that the company used to determine who performed the work on the hoses.
Because reasonable minds could conclude, on this evidence, that appellant intentionally falsified his employer’s records to conceal the fact that he had performed certain work, we affirm the Board’s decision.
Affirmed.
Pittman, Vaught, and Crabtree, JJ., agree.
Griffen, J., concurs.
Stroud, C.J., Hart, Robbins, and Baker, JJ., dissent. | [
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Wendell L. Griffen, Judge.
This appeal arose from a revocation of probation and resulting prison sentence in Crawford County. Jacob Sisk argues that (1) the trial court erred in sentencing him pursuant to revocation of an illegal sentence; (2) the trial court erred in revoking his probation because there was insufficient evidence to revoke his probation; and (3) the trial court erred in failing to furnish him with a written statement of the evidence relied on and reasons for revoking his probation. We affirm.
On November 13, 2000, the State charged appellant with possession of methamphetamine and drug paraphernalia. On February 27, 2001, appellant pleaded nolo contendere to both possession charges. In March of 2001, the trial court placed appellant on probation for one year, suspended imposition of sentence for five years, and imposed court costs and a fine. Appellant did not object nor appeal from that judgment. The conditions of appellant’s suspended sentence included complying with all laws, performing thirty days of community service, and not using, selling, or possessing any controlled substance. Additionally, he was required to enroll in, and complete, drug rehabilitation.
On September 28, 2001, the State filed a petition to revoke, alleging that appellant failed to report to his probation officer, failed to pay probation fees, failed to complete community service, tested positive for THC, and failed to obey all federal and state laws. On March 5, 2002, appellant moved that his case be transferred to Crawford County Drug Court. That motion was granted on March 6, 2002. The next day, on or around March 7, 2002, appellant pleaded guilty to the allegations in the petition to revoke. The court resentenced him to three years of probation but did not expressly revoke appellant’s probation, and conditioned that sentence on not using controlled substances, submitting to any medical, counseling, or psychiatric program required by his probation officer, and suspended imposition of a fine conditioned on his completion of drug court. This resentencing complied with the recommendation of a plea agreement.
On March 14, 2002, a bench warrant was issued for appellant’s arrest based on his failure to appear at drug court. On March 22, 2002, the State filed a new petition to revoke on the ground that appellant failed to comply with “any rules of Drug Court, including failing to appear for Drug Court,” and that the failures violated his probation conditions. After a hearing, the trial court revoked appellant’s probation and sentenced him to ten years’ imprisonment in the Arkansas Department of Correction, with four years suspended. From this judgment comes the current appeal.
Before addressing the merits of appellant’s arguments, we point out that appellant’s counsel failed to properly include the notice of appeal either in his abstract or in the addendum. Thus, he does not comply with the Rules of the Arkansas Supreme Court and Court of Appeals, Rule 4-2(a)(8) (2002). We could order rebriefing pursuant to the Rules of the Arkansas Supreme Court and Court of Appeals, FLule 4-2(b)(3). However, the record reveals that appellant filed a notice of appeal on May 15, 2002, referring to a judgment on April 22, 2002, which was filed May 1, 2002. Thus, the notice of appeal is timely for purposes of reviewing the April 2002 judgment involved in this case.
Underlying Illegal Sentence from March 2001 Judgment
Appellant argues in essence that the March 2001 judgment constituted an illegal sentence because the trial court imposed both probation and a suspended sentence. The State responds that appellant never objected to that judgment or filed an appeal concerning that issue. The timely filing of a notice of appeal is a jurisdictional requirement. Cannon v. State, 58 Ark. App. 182, 947 S.W.2d 409 (1997).
Normally, to preserve an issue for appeal, an appellant must file a notice of appeal within thirty days of the judgment filing. Ark. R. App. P. — Crim. 2(a)(1) (2002). Alternatively, an appellant may file a post-trial motion challenging the simultaneous sentences of probation and suspended sentence. Brimer v. State, 301 Ark. 540, 785 S.W.2d 458 (1990) (finding that the failure to appeal an earlier order precluded challenging restitution amount in later revocation proceeding). However, allegations of a void or illegal sentence constitute an issue of subject-matter jurisdiction, and as such, cannot be waived by parties and may be addressed for the first time on appeal. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002).
It is settled law that a trial court may not impose probation and a suspended sentence simultaneously. Culpepper v. State, 268 Ark. 263, 595 S.W.2d 220 (1980). However, the remedy for an illegal sentence is not dismissal of all related proceedings in the trial court or dismissal of the State’s petition to revoke. Bangs v. State, 310 Ark. 235, 835 S.W.2d 294 (1992). If the original sentence is illegal, even though partially executed, the sentencing court may correct it. Id. In the Bangs case, the supreme court specifically stated that on appeal it could “not dismiss the petition to revoke and thereby allow appellant to benefit from his failure to seek the appropriate remedy by petitioning the trial court.” Id. at 241, 835 S.W.2d at 297.
Here, appellant received an illegal sentence initially when he was sentenced to probation and suspended imposition of sentence. However, he was not prejudiced by the original sentence. In the first place, the trial court resentenced appellant pursuant to a plea argreement entered on March 7, 2002. Appellant does not contend that the trial court imposed an illegal sentence on that date when he was resentenced to three years’ probation subject to certain previously stated conditions. The trial court corrected the defect in the original sentence. Therefore, we affirm on this point.
Insufficient Evidence to Revoke Probation
Appellant also argues that there was insufficient evidence to support the revocation of his probation in April 2002. In revocation proceedings, a trial court must find by a preponderance of the evidence that a defendant inexcusably violated a condition of probation. Ark. Code Ann. § 5-4-309(d) (Supp. 2001); Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999). We do not reverse a trial court’s findings on appeal unless they are clearly against the preponderance of the evidence. Petty v. State, 31 Ark. App. 119, 788 S.W.2d 744 (1990). We review the sufficiency of the evidence supporting revocation by viewing the evidence in the light most favorable to the State. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). Notably, the State need only prove one violation of the probation conditions for the trial court to revoke a probation. Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987).
In the present case, appellant’s second probation resulted from the trial court’s resentencing of appellant to a longer probation term, following appellant’s guilty plea in March 2002. Appellant’s probation, pursuant to the resentencing, contained a prohibition against using controlled substances and an order to submit “to any medical, counseling, or psychiatric program required by his probation officer.” In addition, the trial court also suspended the imposition of a fine, conditioned on appellant’s “completion of drug court.” The State’s petition to revoke appellant’s second probation specifically alleged that “on the 13th day of March, 2002, the Adult Probation Office requested that the State file a Petition to Revoke on [appellant] based upon his failure to comply with any rules of drug court, including failure to appear for drug court; that said conduct is in violation of the terms and conditions of his suspended sentence.”
The conditions of appellant’s probation expressly held him to “submitting to any medical, counseling, or psychiatric program required by his probation officer.” We hold that the trial court did not err in concluding that appellant inexcusably violated one of his probation conditions — namely, to attend any program his probation officer deemed necessary and to cooperate with such program efforts. Furthermore, appellant admitted that he failed to contact his probation officer and failed to appear in drug court. Therefore, we hold that there was sufficient evidence for the trial court to revoke his resentenced probation.
Failure to Furnish Written Statement of Evidence
Finally, appellant argues that the trial court should have provided him with a written statement of the evidence relied upon, pursuant to Ark. Code Ann. § 5-4-310(b) (Repl. 1997). However, appellant did not object to that failure below. Therefore, he waived his right to a written statement. See Box v. State, 71 Ark. App. 403, 30 S.W.3d 754 (2000).
Affirmed.
Robbins and Bird, JJ., agree. | [
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Terry Crabtree, Judge.
After being terminated from her job, the appellant, Gena C. Rossini, sought unemployment benefits from the Arkansas Employment Security Department. When the Department denied her benefits, she appealed the decision to the Arkansas Appeal Tribunal. On March 13, 2002, the Appeal Tribunal reversed the Department’s determination and awarded her benefits. On June 13, 2002, the Board of Review reversed the Appeal Tribunal and denied appellant unemployment benefits after finding that she was discharged from her last work for misconduct in connection with the work. For our review, appellant maintains that the Board of Review erred: (1) when it reversed the Appeal Tribunal’s decision “based on the receipt of no new evidence;” (2) when it relied heavily on a fax sent by appellant to appellee after she was terminated; (3) when it incorrectly interpreted the testimony of the witnesses; (4) when it failed to recognize “the everyday use of foul language;” and (5) when it failed to acknowledge the absence of an investigation in which both parties were able to explain the event that lead to appellant’s termination. We affirm.
Appellant worked as a salesperson for the appellee, the Arkansas Democrat-Gazette, for one and one-half years. On the morning of March 1, 2002, appellant and her coworker, Dennis Perkins, an account executive, became involved in a verbal disagreement about a customer’s account. Appellant claims that during the argument Perkins called her a b-. She testified that she responded by calling him a pansy a — . Their supervisor, Robert Shearon, who observed the confrontation, testified that he told them to calm down. Shearon stated that “at that point [appellant] started calling [P erkins] some names, including ‘a kid who couldn’t make a sale.’ ” Shearon also stated that appellant then called Perkins an a — hole and left the building. Approximately an hour later, appellee paged appellant and informed her that she was terminated.
As an initial matter, we must note that appellant did not make three of her arguments below that she now complains of on appeal. The record does not reflect that appellant argued (1) that the Board should not consider the fax she sent to appellee, (2) that the Board should recognize the everyday use of foul language, or (3) that the Board should acknowledge the absence of an investigation in which both parties were able to explain the event that lead to her termination. We decline to address the merits of these arguments. They were not made below, and this court does not consider issues raised for the first time on appeal. Rucker v. Price, 52 Ark. App. 126, 915 S.W.2d 315 (1996); Perdrix-Wang v. Director, 42 Ark. App. 218, 856 S.W.2d 636 (1993).
For appellant’s remaining two points on appeal, she essentially complains that substantial evidence did not support the Board’s decision. The findings of the Board of Review are con- elusive if they are supported by substantial evidence. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings. Lovelace v. Director, 78 Ark. App. 127, 79 S.W.3d 400 (2002). Even when there is evidence upon which the Board might have reached a different decision, the scope of judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id.
An individual shall be disqualified for unemployment benefits if she is discharged from her last work for misconduct in connection with the work. Ark. Code Ann. § ll-10-514(a)(l) (Repl. 1999). “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has a right to expect of his employees; and (4) disregard of the employee’s duties and obligations to his employer. Greenberg v. Director, 53 Ark. App. 295, 922 S.W.2d 5 (1996). To constitute misconduct, however, the definitions require more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. Carraro v. Director, 54 Ark. App. 210, 924 S.W.2d 819 (1996). There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. In sum, there is an element of intent associated with a determination of misconduct. Rollins v. Director, 58 Ark. App. 58, 945 S.W.2d 410 (1997).
Appellee’s employment policy states that disciplinary action, including discharge, may occur for violation of company rules and regulations including insubordination, using abusive language, and interfering with fellow employees or their work. Appellant received a copy of appellee’s rules, regulations, and policies at the time she was hired. At the hearing, appellant admitted that she used abusive language toward Perkins during their argument. She attempted to justify her actions by claiming that Perkins called her a name. Appellant’s supervisor, Robert Shearon, testified that Perkins did not call appellant any name during the argument. The Board of Review found that “the record contains no evidence other than [appellant’s] which would support her assertion that [Perkins] called her a ‘b-We recognize that the credibility of witnesses and the weight to be accorded their testimony are matters to be resolved by the Board. Niece v. Director, 67 Ark. App. 109, 992 S.W.2d 169 (1999).
It is undisputed that appellant chose to continue using abusive language even after her supervisor instructed her and Perkins to calm down. The Board of Review found appellant’s behavior to be intentional as she sought to belittle Perkins in front of others in the office. The Board also noted the fact that appellant sent a fax to appellee hours after she was terminated in which she referred to Perkins as “your boy” and stated, “[a]t this point, I’m reasonable to deal with. By Monday, who knows [?]”
We distinguish this case from Rollins, supra, where we reversed the Board of Review’s finding that a claimant had committed misconduct. In that case, the claimant told a coworker to stop meddling in her business and to shut up. Id. The Board found those words were harsh and provocative. Id. However, we did not believe that they rose to the level of misconduct as defined by the statute.
By contrast in the case at bar, we agree with the Board that appellant’s actions were malicious and contained willful intent. Her statements to Perkins reflect more than a lack of judgment. Even after the supervisor, Shearon, instructed appellant and Perkins to “calm down,” she continued with her verbal attacks and abusive language. This is clear evidence of a deliberate violation of appellee’s rules and standard of behavior that appellee had a right to expect.
Based upon our review of the evidence, we hold that substantial evidence supports the Board’s decision that appellant was discharged from her last work for misconduct in connection with the work.
Affirmed.
Pittman, Gladwin, and Baker, JJ., agree.
Hart and Roaf, dissent. | [
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Sam Bird, Judge.
Arkansas Office of Child Support Enforcement and Leslie Pevelko appeal a 2001 order of the Pulaski County Circuit Court denying their motion for judgment for child-support arrearages against Charles King for a period of time between 1986 and 1995. The appellants raise the following points of error: (1) the trial court erred in finding that the failure to raise the issue of child-support arrearages, accrued under an existing order, at the time a new order of child support was entered, acted as a bar by res judicata in a later motion to seek judgment and collection of arrears; (2) the trial court erred in finding that Leslie Pevelko had the opportunity to raise the issue of past-due child support in Oregon; (3) the trial court erred in finding that OCSE or Pevelko was required to raise the issue of child-support arrearages in a 1995 action to set support based upon King’s ability to pay. We agree that these findings were made in error; therefore, we reverse and remand for entry of judgment for the accrued support.
We first summarize the proceedings and orders that led to this appeal. Leslie Pevelko and Charles King were divorced on February 28, 1986. They were awarded joint .custody of their only child, with physical custody to Pevelko, and King was ordered to pay monthly child support of $100. A court order of November 13, 1990, abated the order of child support and changed custody to King, who by that time had taken physical custody of the child. Pevelko petitioned the court to set aside the November 13 order, alleging that neither she nor her attorney had received notice of the hearing. She also filed a motion alleging . that King was $400 in arrears on child-support payments as of February 19, 1991; praying that King be made to show cause why he should not be held in contempt, and praying for increased child-support payments. On May 13, 1991, the trial court set aside and voided ab initio the November 1990 order that had changed custody to King and abated his child support.
A hearing date was set on Pevelko’s motion for payment of child-support arrearages, and Pevelko filed a motion to transfer the custody issue to the State of Oregon pursuant to the Uniform Child Custody Jurisdiction Act. In an order of December 16, 1991, the court noted that King was a resident of Texas, and that Pevelko and the child had lived in Oregon since September 1989; the parties were ordered to maintain joint custody of the child, who would continue to live primarily with Pevelko. Finding Oregon to be the most convenient forum for the parties, the court deferred future actions to the appropriate court in that state and declined further jurisdiction over subsequent matters in the case. The order stated that Pevelko’s motion for back child support and for increase in child support was not heard, and that she “may pursue any such actions through the State of Oregon.”
A “motion to set support” was filed on November 28, 1995, by OCSE on behalf of Pevelko after she and the child returned to Arkansas. The motion recited the history of the case beginning with the 1986 decree and order of child support. On March 26, 1996, pursuant to the motion to set support, the court ordered King to pay $297 a month, $270 as current support and $27 to be applied to retroactive support from the date of the motion to the date of the hearing.
In November 2000 King moved to abate his child support for a period of time when the child had resided with him in Dallas. Pevelko counterclaimed for back child support from March 1986 to March 1996, and for increased future support. The court deferred child-support matters until OCSE was notified. OCSE then filed a motion adopting Pevelko’s counterclaim.
After a hearing in October 2001, both sides filed posttrial briefs on the issue of whether Pevelko was entitled to seek child-support payments for alleged arrearages before November 1995. A resulting order of November 2001 granted abatement of child support during the time that the child had lived with King in Dallas, granted $1971 in child-support arrears against him, and found that he was not in contempt of court. Appellants’ request for child-support arrears prior to December 1995 was denied.
At the request of OCSE, the court subsequently entered findings of fact and conclusions of law regarding its decision. The conclusions of law included the following:
1. Ms. Pevelko’s motion is barred by res judicata in that she did not raise the issue of arrearages in her November 1995 motion to set support. That motion resulted in a final order on child support and even awarded a small amount for arrearages dating back to the date of the filing of the motion. No allegation was made regarding arrearages prior to 1995. See State of Arkansas Child Support Enforcement v. Thornell Williams, 995 S.W.2d 336 (1999).
2. Further, Ms. Pevelko had the opportunity to raise the issue of back child support in Oregon, based on the order of December 16, 1991, and in the November 1995 motion to set support.
3. Finally, the November 1995 motion resulted in an order setting support as if for the first time. ... By failing to pursue the alleged arrearages when the case was pursued again in this state in 1995, Mr. King and the Court were led to believe that all issues, including arrearages, had been resolved up to that point.
4. Therefore, Ms. Pevelko is not entided to seek arrearages behind the November 1995 motion.
As shown earlier in this opinion, the divorce decree of 1986 included the order that King pay child support. In 1995 the court entered an order for an increased amount of child support without mention of arrearages. In November 2000 King filed a motion to abate support for a period of time that the child had resided with him, and Pevelko counterclaimed for back support for a period from 1986 to 1996. As their first point of appeal, appellants contend that the court erred as a matter of law in finding that res judicata barred them from seeking judgment on past-due child support that had accrued before 1995. We agree, and we reverse the ruling of the trial court on this issue.
When the amount of child support is at issue, we will not reverse the fact-finder absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001). However, the trial judge’s conclusion of law is given no deference on appeal. Duchac v. City of Hot Springs, 67 Ark. App. 98, 992 S.W.2d 174 (1999). 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. Id.
Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Office of Child Support Enfcm’t v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999). Res judicata bars relitigation of a subsequent suit when five factors are present: (1) the first suit resulted in a final judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action; (5) both suits involve the same parties or their privies. Moon v. Marquez, 338 Ark. 636, 999 S.W.2d 678 (1999). Res judicata bars not only the relitigation of claims that were actually litigated in the first suit but also those that could have been litigated. Id. The policy of the doctrine is to prevent a party’s relitigating a matter on which it has already been given a fair trial. Id.
Here, in ruling that appellants’ motion for child-support arrearages prior to November 1995 was barred by res judicata, the trial court relied upon Office of Child Support Erfcm’t v. Williams, 338 Ark. 347, 995 S.W.2d 338 (1999). The Williams court held that, as between parties to a divorce, res judicata bars a former husband and wife from relitigating paternity after having agreed in the divorce action that a child was born of the marriage. With respect to child support, custody, and even the changing of a child’s surname, the supreme court has applied a modified res judicata, which is subject to changed circumstances and the best interest of the child. Moon v. Marquez, supra; see Thurston v. Pinkstaff, 292 Ark. 385, 730 S.W.2d 239 (1987).
Once a child-support payment falls due, it becomes vested and a debt due the payee. Roark v. Roark, 34 Ark. App. 250, 809 SW.2d 822 (1991). Under Arkansas Code Annotated section 9-14-234(b) (Supp.1995), enacted as part of Act 383 of 1989, any order providing for payment of child support becomes a final judgment subject to writ of garnishment or execution for any money which has accrued until the time either party moves through proper motion filed with the court and served on the other party to set aside, alter, or modify the decree, judgment, or order. Ark. Code Ann. § 9-14-234(b) (Repl. 1991). Furthermore, the court may not set aside, alter, or modify any decree, judgment or order which has accrued unpaid support prior to the filing of a motion to do so. Ark. Code Ann. §§ 9-14-234(c) and 9-12-314(c).
These statutes were enacted in order to comply with federal regulations and to insure that the State will be eligible for federal funding. Sullivan v. Edens, 304 Ark. 133, 801 S.W.2d 32 (1990). 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. Burnett v. Burnett, 313 Ark. 599, 855 S.W.2d 952 (1993), citing 54 Fed. Reg. 15,761 (April 19, 1989). If the obligor presents to the court or administrative authority a basis for laches or an equitable estoppel defense, there may be circumstances under which the court or administrative authority will decline to permit enforcement of the child-support judgment. Id. The elements of equitable estoppel are these: (1) the party to be estopped must know the facts; (2) she must intend that her conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; (3) the party asserting estoppel must be ignorant of the facts; (4) the party asserting estoppel must rely on the other’s conduct to his detriment. Arkansas Dep’t of Human Servs. v. Cameron, 36 Ark. App. 105, 818 S.W.2d 591 (1991).
In summary, any past-due child support accrues and is a judgment until altered prospectively by proper motion and order of the court. Ark. Code Ann. § 9-14-234(b) and (c). Because in the present case there was no court order modifying the 1986 order, “modified res judicata” does not come into play regarding past opportunity to litigate issues of accrued support. Nor did King argue an equitable basis to prevent the collection of past-due child support. Through his attorney, he stated to the trial court that this was not a matter of equity, but a matter of res judicata. Even questions raised at the trial level, if left unresolved, are waived and may not be relied upon on appeal; the trial court’s ruling on a challanged issue is a prerequisite to our review of that issue. Office of Child Support Enfcm’t v. Neely, 73 Ark. App. 198, 41 S.W.3d 423 (2001).
We reverse the trial court’s finding that the failure to pursue alleged arrearages when the case was pursued in 1995 acted as a bar by res judicata to appellants’ later motion for judgment and collection of arrearages. In light of this holding, we need not address the second and third points on appeal. We reverse and remand for proceedings consistent with this opinion.
Reversed and remanded.
Robbins and Griffen, JJ., agree. | [
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Wendell L. Griffen, Judge.
Joni Hart appeals from an order of the Circuit Court of Washington County denying her petition contesting her father’s will and finding that her father executed the will absent undue influence and with the requisite testamentary capacity. We hold that the trial court’s decision upholding the will was not clearly erroneous and affirm.
Appellant’s father, Joe Thomas Garrett, the decedent, was diagnosed with lung cancer and underwent surgery in Little Rock, Arkansas, on January 13, 2000. He suffered complications after surgery that prevented him from leaving the hospital and returning to his home in Springdale, Arkansas. On February 8, 2000, at the decedent’s request, his wife, Carolynne Garrett, contacted the decedent’s brother, Richard Larry Garrett (Larry), and asked him to come to Little Rock to help the decedent arrange his affairs. Larry was a certified public accountant living in Nashville, Tennessee, who served as the decedent’s CPA and financial advisor for many years. Larry met with the decedent on February 10, 2000, to discuss the decedent’s wishes concerning disposition of his property. At that time, Larry had the decedent sign a power of attorney he drafted before leaving Tennessee and coming to Little Rock.
On February 11, 2000, at the direction of the decedent, Larry traveled to Springdale, Arkansas, to meet with John Neihouse, an attorney specializing in tax and estate planning, to discuss preparing a will and a trust for the decedent. The decedent and his wife consulted Neihouse in December 1999 about creating two trusts for Carolynne’s grandchildren, which Neihouse prepared, and on at least two other occasions between December 1999 and January 2000 (to sign the trusts and make a second funding to the trusts). During those meetings, the decedent discussed having Neihouse draft a will for him.
Based on the information that Larry had provided, Neihouse prepared a revocable trust, a will, and a second power of attorney. On February 12, 2000, Neihouse faxed a copy of the will, the signature page of the trust, and the power of attorney to the hospital. Neihouse faxed those documents to the decedent because Carolynne or Larry informed him that the decedent might be placed on a respirator and sedated later that day. Upon receiving the documents, Larry asked Dr. Manyusha Kota, one of the decedent’s treating physicians, to perform a competency evaluation on the decedent to determine if he was capable of executing the documents. He then recruited a nurse, Gwen Hart, and a social worker, Anne Stroud, from the hospital to witness execution of the will. After the will was read to him by Larry, the decedent executed the will, the signature page of trust, and the second power of attorney in the presence of Dr. Kota, the nurse, the social worker, Carolynne, and other relatives. Because it was Saturday, Larry was unable to locate a notary to notarize the witnesses’ signatures on the proof of will; however, a hospital notary notarized the witnesses’ signatures two days after the decedent executed the will.
The decedent died on February 18, 2000, at the age of sixty-four. His will was admitted to probate on May 24, 2000. The will provided that all property owned by the decedent at death was to go to the acting trustee of the Joe Thomas Garrett Revocable Trust. Carolynne Garrett and Richard Larry Garrett were named co-trustees under the Trust. In the will, the decedent acknowledged appellant, Toni Ritchie, and Sheila Garrett as his children from prior marriages; specifically excluded Toni and Sheila from inheriting anything under the will; and provided that any distribution of property to appellant or her descendants was set forth in the Trust. Under the Trust, at the death of Carolynne, the Trust assets were to be distributed in the following percentages: fifty percent to Carolynne’s children; twenty percent to Richard Garrett; fourteen percent to Mary Katherine Garrett; fourteen percent to Marti Lewis; and two percent to Joni Hart. Since 1969, appellant had seen the decedent only three or four times.
On September 18, 2000, appellant filed an amended petition to contest the will and trust alleging that the will was the product of undue influence by both Carolynne and Larry and that the decedent lacked the necessary mental capacity to execute the will. At a hearing on the matter, Larry, Carolynne, Dr. Kota, Anne Stroud, Gwen Hart, and Dr. Laura Hutchins all testified that the decedent was fully competent and was not subject to any undue influence at the time he signed the will. Specifically, Dr. Kota testified that she performed the standardized “mini-mental examination” of the decedent on February 12, 2000, prior to him executing the will and that he received the maximum score. From this test, Dr. Kota determined that the decedent was alert and oriented as to time, place, and person.
During the hearing, appellees moved for a directed verdict on the grounds that there was insufficient evidence to support appellant’s allegations of undue influence and diminished mental capacity. The trial court granted the motion, finding no evidence that Carolynne or Larry procured the will or exercised undue influence over the decedent in securing the will, nor any proof that the decedent lacked sufficient testamentary capacity to execute the will. Accordingly, the trial court dismissed appellant’s petition with prejudice. It is from this judgment that appellant has appealed.
On appeal, probate cases are reviewed de novo; however, an appellate court will not reverse the trial court’s findings unless they are clearly erroneous. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d 715 (1996). Due deference is given to the superior position of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Id.
In a typical will contest, the party contesting validity of the will has the burden of proving by a preponderance of the evidence that the testator lacked mental capacity at the time the will was executed or that the testator acted under undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992). Where, however, a beneficiary procures the making of a will, a rebuttable presumption of undue influence arises and the beneficiary must prove beyond a reasonable doubt that the testator enjoyed both the required mental capacity and freedom of will. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001).
In the instant case, the trial court found that Carolynne and Larry did not procure the decedent’s will notwithstanding undisputed proof that Carolynne contacted Larry to come to Arkansas, that Larry directed Neihouse to prepare the will, and that both were beneficiaries. Therefore, pursuant to longstanding precedent in Arkansas, we hold that the trial court erred in finding that Carolynne and Larry did not procure the will. As such, appellees were obligated to rebut the presumption of undue influence by proving beyond a reasonable doubt that the decedent executed the will while possessed with testamentary capacity and freedom of will. See Pyle v. Sayers, supra.
The trial court further found that there was no evidence that Carolynne, as the decedent’s wife, and Larry, as decedent’s brother and financial advisor, exercised undue influence over the decedent or that the decedent was incompetent when he executed the will. The record reveals that Larry acted only as requested and instructed by the decedent in securing the will. Although Carolynne and Larry assisted the decedent in getting his affairs in order, nothing in the record suggests that their influence with the decedent operated to override his discretion and destroy his free will. Further, appellant’s medical doctor and other disinterested witnesses testified that the decedent was of sound mind when he executed his will; that they did not believe he was being unduly influenced to execute this will; and that the decedent was doing what he wanted to do. Thus, based on our review of the record, we cannot hold that the trial court erred in finding that the decedent’s will was valid, being executed absent undue influence and with the requisite testamentary capacity. Although the trial court erred by finding that no procurement occurred, its error was rendered harmless by proof regarding the decedent’s testamentary capacity and freedom from undue influence.
However, on appeal, appellant has abandoned her challenge to the will on the basis of undue influence and lack of mental capacity. Instead, appellant now challenges whether a durable power of attorney can empower or authorize an agent or attorney-in-fact to make a will on behalf of the principal or testator. Appellant argues that her father’s will is invalid because the power to make a will is personal and nondelegable; thus, the power of attorney executed by the decedent could not have empowered Larry to make a will for the decedent, even though the decedent instructed Larry how he wanted his property distributed.
This argument was not raised below, and thus is not preserved for appellate review. Reid v. Frazee, 72 Ark. App. 474, 41 S.W.3d 397 (2001). We note, however, that a power of attorney, durable or otherwise, cannot bestow upon the attorney-in-fact the power to create a will on behalf of a principal. A power of attorney is an instrument in writing by which one person, as principal, appoints another as his agent and confers upon that agent the authority to perform certain specified acts or kinds of acts on behalf of the principal. Black’s Law Dictionary 1171 (6th ed. 1990). Under a power of attorney, an agent is “authorized to act with respect to any and all matters on behalf of the principal with the exception of those which, by their nature, by public policy, or by contract require personal performance.” 3 .Am. Jur. 2d Agency § 21 (2002). The decision of who, what, when, and how one’s property is to be distributed upon death is clearly personal and that of the principal alone, and thus falls within the exception.
However, the facts of this case do not indicate that Larry, as the attorney-in-fact, was the maker of decedent’s will. Instead, the record reveals that the decedent engaged Neihouse to draft the will, trust, and a power of attorney. The decedent instructed Larry to tell Neihouse how he wanted his property distributed. The decedent reviewed and signed the will. Larry merely acted as a conduit or messenger between the decedent and Neihouse concerning the decedent’s wishes because the decedent was ill and unable to leave the hospital. Under these facts, it was the decedent, and not Larry, who was the maker of the will.
Affirmed.
Robbins and Bird, JJ., agree. | [
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Robert J. Gladwin, Judge.
On January 10, 2001, John and Yvonne Cloud entered arbitration proceedings with Regions following a dispute about the Clouds’ investment in Wal-Mart stock. Arbitration resulted in an award in favor of Regions on February 14, 2001. On May 14, 2001, the Clouds filed a motion to vacate the award in the Clark County Chancery Court and mailed a copy of that motion to Stephen A. Rowe in Alabama because he was the attorney who had represented Regions in the arbitration proceedings. Events finally culminated in an order entered by the trial court on March 15, 2002, in which the court granted Regions’ motion to dismiss the Clouds’ petition “with prejudice.” From that order comes this appeal.
In order to gain a full understanding of the issues on appeal, we must first discuss the procedural history of this case. After the Clouds moved to vacate the award following the arbitration proceedings, the trial court entered an order on July 13, 2001, purporting to vacate the award, but, on that same date, it also entered an order denying the Clouds’ motion to vacate with a handwritten notation that it was denied because there was no proof of service. Thereafter, on July 23, 2001, the trial court entered an order to disregard the July 13 order vacating the award, but on the same date entered another order vacating the award. On October 8, 2001, the trial court set aside the July 23 order vacating the award and instructed the Clouds to serve Regions with their motion as required by the Arkansas rules.
Unaware of the October 8 order, Regions filed a motion to set aside the July 23 order and motion to dismiss on October 22, 2001, on the grounds that the Clouds failed to timely and properly serve it as required by Ark. Code Ann. § 16-108-216 (Repl. 1987) and Ark. R. Civ. P. 4(i). At a hearing on January 14, 2002, the trial court granted Regions’ motion. On January 16, the court entered its order dismissing the Clouds’ motion to vacate “without prejudice” pursuant to Ark. R. Civ. P. 4(i). The court found that Regions was not properly served in accordance with Ark. Code Ann. § 16-108-216 in that Mr. Rowe was not authorized to accept service on behalf of Regions and service was not otherwise properly obtained within 120 days. Meanwhile, on January 15, 2002, the Clouds had re-filed their motion to vacate the arbitration award and requested that a summons be issued. Subsequently, on February 1, 2002, Regions filed a motion to dismiss the Clouds’ motion to vacate “with prejudice.” On March 15, 2002, the trial court held a hearing and entered its order of dismissal “with prejudice.”
Arkansas Code Annotated section 16-108-212(b) (Repl. 1987) provides that, when seeking to vacate an arbitration award, an application shall be made within ninety days after delivery of a copy of the award to the applicant. According to Ark. Code Ann. § 16-108-216 (Repl. 1987), “Except as otherwise provided, an application to the court under this subchapter shall be by motion and shall be heard in a manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of a summons in an action.” Arkansas Rule of Civil Procedure 4(i) provides that, if service of the summons is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice.
The Clouds argue on appeal that the trial court erred when it forever barred the refiling of their motion to vacate the award because Ark. R. Civ. P. 4(i) requires a dismissal to be without prejudice. Although the Clouds filed their original motion to vacate the award within ninety days, they failed to serve the summons within 120 days as required by Ark. R. Civ. P. 4(i). As such, their cause of action was not “commenced” in accordance with Ark. R. Civ. P. 3. See Bodiford v. Bess, 330 Ark. 713, 956 S.W.2d 861 (1997). By the time the Clouds refiled their motion to vacate, the ninety-day deadline for filing suit under Ark. Code Ann. § 16-108-216 had expired. Ordinarily, a dismissal under Rule 4(i) is without prejudice; however, if the suit is otherwise barred, as it is here, the dismissal is with prejudice. See Kangas v. Neely, 346 Ark. 334, 57 S.W.3d 694 (2001); Bodiford v. Bess, 330 Ark. 713, 956 S.W.2d 861 (1997).
The Clouds also argue that “viable” motions must be answered pursuant to Ark. R. Civ. P. 6(c) and (d), and thus their service was not inadequate. However, although they styled their initial pleading as a motion to vacate, Ark. Code Ann. § 16-108-212 itself sets forth the procedure to follow in order to serve vacation of an arbitration award, and section 216 clearly provides that an initial “application” for such relief shall be served in the manner provided by law for the service of a summons in an action. The trial court, therefore, correctly found that service of their motion was governed by Ark. R. Civ. P. 4(i).
Likewise, the Clouds’ final argument on appeal must fail. The Clouds contend that the trial court erred when it determined that the so-called saving statute did not apply. Arkansas Code Annotated section 16-56-126 provides that if any action is commenced within the time prescribed by a statute and the plaintiff suffers a nonsuit, he may commence a new action within one year. The Clouds cannot avail themselves of the saving statute where they have failed to complete timely service on Regions and have not, thus, “commenced” their cause of action. See Nef v. AG Services of America, Inc., 79 Ark. App. 100, 86 S.W.3d 4 (2002). Moreover, the Clouds did not take a nonsuit, i.e., a voluntary dismissal pursuant to Ark. R. Civ. P. 41(a).
Affirmed.
Roaf and Bird, JJ., agree. | [
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Josephine Linker Hart, Judge.
Our issue here is whether the trial court properly interpreted a deed as excluding appellant, Doyle Brown, who is an adopted child, from the remainder interest created by the deed. The facts were stipulated by the parties. In 1945, Charley King and L.C. King, as husband and wife, conveyed certain land in Madison County to their daughter and son-in-law, Thelma Brown and Carl Brown. The deed’s granting clause granted the property “unto Carl Brown and Thelma Brown and unto Thelma Brown’s heirs by Carl Brown and unto their heirs and assigns forever. ...” The habendum clause provided, “To have and to hold the same unto the said Carl Brown and Thelma Brown and unto their heirs and assigns forever. . . .” At the time of the conveyance, Thelma and Carl Brown had one child, appellee Betty Brown Johnson, who was eleven. Appellant, who was born in 1955, was adopted by Thelma and Carl Brown at some time between 1956 and May 1962. In March 1979, Thelma Brown and Carl Brown conveyed the property to appellee, their daughter, by warranty deed. Carl Brown died in May 1979. In 1996, appellee conveyed a portion of the property to the Arkansas State Highway Commission for a consideration of $40,370. Appellee also sold timber, rock, gravel, and dirt from the property. Thelma Brown died in October 1999.
Appellant filed this action in equity seeking to be declared entitled to an undivided one-half (V2) interest in the property, claiming that, under the terms of the deed, he had, as a child of Carl and Thelma Brown, a remainder interest in the property. The complaint also sought partition of the property, division of the proceeds of the partition sale, and an accounting for monies received from the sale of the property and the sale of the timber, dirt, and minerals. Appellee answered, denying the factual allegations and asserting the affirmative defenses of estoppel, laches, waiver, and, by amendment on the day of trial, statute of limitations.
The trial court first found that appellant had proven that he was adopted. Next, the trial court, citing Steele v. Robinson, 221 Ark. 58, 251 S.W.2d 1001 (1952), which held that language similar to the language “unto Thelma Brown’s heirs by Carl Brown and unto their heirs and assigns forever” created a vested remainder in the heirs subject to open, concluded that the language of the deed did not create a fee tail. The trial court also held that the above language unambiguously evidenced an intent on the part of the grantors to exclude adopted children from the class of remain-dermen. Further, the court concluded that, even if the deed was ambiguous, extrinsic evidence supported the court’s interpreta tion. Judgment was entered dismissing appellant’s complaint, and this appeal followed.
In two separate points, appellant argues that the trial court erred in construing the deed to exclude him, as an adopted child, from the class of remaindermen. First, he argues that the trial court erred in interpreting the language of the deed to mean that the grantors intended to exclude adopted children. Second, he argues that the trial court erred in ignoring the adoption statutes, which provided that an adopted child is to be treated for all purposes as a legitimate blood descendent of his adoptive parents. Appellee cross-appeals, contending that the trial court erred in finding that appellant had proven by clear and convincing evidence that he was the adopted child of Thelma and Carl Brown.
As an equity case, our review is de novo. Our courts have been precise in stating what de novo review entails:
Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo.
Conagra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 677, 30 S.W.3d 725, 728 (2000); Ferguson v. Green, 266 Ark. 556, 563-564, 587 S.W.2d 18, 23 (1979) (citations omitted).
When construing a deed, we ascertain the intention of the parties, and we examine the four corners of the deed to ascertain intent. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). Our first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Id. We will not resort to rules of construction when a deed is clear and contains no ambiguities, but we will do so when its language is ambiguous, uncertain, or doubtful. Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984); Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982).
Appellant first argues that Steele settled his status as a “child” of Thelma Brown and that, after the deaths of Carl and Thelma Brown, appellant had a one-half undivided interest in the property. Steele, however, is not determinative, as it does not address whether adopted children are included in the term “children.”
It is certainly true, as appellant argues, that “children” is a broader term than the word “heirs” and may include adopted children. Kelly v. Kelly, 176 Ark. 548, 3 S.W.2d 305 (1928). If a will or a deed shows it was the intention of the testator or grantor to use the words “child or children” to mean words of limitation like “heirs of his body,” it has been held that that is what was meant. See Wilkins v. Wilkins, 212 Ark. 242, 206 S.W.2d 26 (1947). The term “heirs,” in its strict legal sense, means those upon whom the law casts the inheritance of land, Johnson v. Knights of Honor, 53 Ark. 255, 13 S.W. 794 (1890), but this construction will yield if the face of the instrument shows sufficient intent that the meaning of the word is to be limited to “children.” Black v. Stephenson, 166 Ark. 429, 267 S.W. 130 (1924); Wyman v. Johnson, 68 Ark. 369, 59 S.W. 250 (1900). When this latter construction is used, it has been held that “children” does not include after-born or adopted children, without express language. Wyman v. Johnson, supra. See also Kelly, supra.
The controlling question in making this determination is whether the deed’s terms are susceptible to more than one equally reasonable construction. See Fryer v. Boyett, 64 Ark. App. 7, 978 S.W.2d 304 (1998). The remainder interest in the property was to “Thelma Brown’s heirs by Carl Brown.” In commonsense terms, a person’s heirs “by” a particular person means that person’s child or children “born or begot of,” meaning natural children. Webster’s Third New International Dictionary 307 (1993). Appellee was the only heir of Thelma Brown born of or begot by Carl Brown. Appellant, as their adopted child, was not born of or begot by Carl Brown. In these circumstances, we cannot say that the trial court clearly erred in concluding that the deed unambiguously excluded adopted children.
For his second point, appellant argues that the trial court erred in ignoring the adoption statutes, which provided that an adopted child is to be treated for all purposes as a legitimate blood descendent of his adoptive parents. Citing Davis v. Davis, 219 Ark. 623, 243 S.W.2d 739 (1951), appellant argues that the adoption statute in effect at the time he was adopted, Ark. Stat. Ann. § 56-109 (1949) (repealed 1977), provided that an adopted child shall be treated as a natural child for all purposes. His reliance on Davis, however, is misplaced because the language he cites from Davis is from Justice J. Seaborn Holt’s dissenting opinion, not the majority opinion. Justice Holt’s dissent made the same argument that appellant is now making.
Davis involved a deed that conveyed real property to the grantor’s children for their lives and “then to their bodily heirs.” The grantor died intestate, leaving a child who eventually died and was survived by an adopted son but no natural children. The Davis court concluded that the adopted son was not a “bodily heir” of his father. The court rejected the argument concerning section 56-109, stating that “the question is not one of inheritance.” Id. at 624, 243 S.W.2d at 740. The court explained: “Terms such as bodily heirs, issue, etc., have long been defined in the law, and the definition does not include adopted children. A foster child, being a stranger to the blood, is the antithesis of an heir of the body.” Id. (Citation omitted.) See also Cox v. Whitten, 288 Ark. 318, 704 S.W.2d 628 (1986) (holding that a will executed in 1951 that left a life estate to siblings and remainder to their “children” did not give adopted adult a remainder interest); Bilsky v. Bilsky, 248 Ark. 1060, 1064, 455 S.W.2d 901, 903 (1970) (noting that, in interpreting “issue” used in a will executed in 1955, “[fjerms such as bodily heirs, issue, etc. have long been defined in the law, and the definition does not include adopted children”). Thus, the Davis court concluded that the adoption-inheritance laws were not intended to modify the established meaning of terms used in deeds.
Davis dealt with the same adoption statute under which appellant was adopted. The supreme court has left open the ques tion of whether the same result would apply under the current adoption statute, Ark. Code Ann. § 9-9-215 (2002). Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997). Because Davis rejected the specific argument now being made by appellant, we affirm on this point.
On cross-appeal, appellee contends that the trial court erred in finding that appellant met his burden of proving that he was the adopted child of Thelma and Carl Brown. Because we affirm the trial court’s interpretation of the deed, this issue is moot.
Affirmed on direct appeal; cross-appeal moot.
Stroud, C.J., and Griffen, J., agree.
Betty Johnson’s husband Marion Johnson was made a party to this action. We refer only to Betty Johnson as the appellee. | [
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Larry D. Vaught, Judge.
Appellant was convicted of simultaneous possession of drugs (marijuana) and a firearm, and possession of a controlled substance (marijuana) with intent to deliver, which was merged with the simultaneous possession conviction for sentencing. He was sentenced to ten years in prison. He raises two points of appeal: (1) whether Officer Green had a particular and articulable suspicion that a search of his truck was necessary for officer protection; (2) whether the State proved beyond a reasonable doubt that his firearm met the statutory definition of a firearm. We affirm.
On April 9, 2001, the State filed a three-count felony information charging appellant with simultaneous possession of drugs and a firearm, possession of a controlled substance with intent to deliver, and possession of a firearm by certain persons. Appellant filed a motion to suppress evidence seized during a warrantless search of his vehicle, arguing that no probable cause existed to believe that con traband was located in his vehicle. Prior to the December 11, 2001 bench trial, the parties agreed that the motion to suppress would be heard simultaneously with the trial on the charges.
At trial, the evidence revealed that at 8:46 p.m. on February 22, 2001, the Little Rock Police Department sent out a report regarding gunshots fired in the area of Seventeenth and Abigail Streets. Officer David Green was in the area and began looking for a red Chevrolet S-10 pickup truck, which was described in the report. Approximately five minutes later Officer Green passed a parked red Chevrolet S-10 at Twenty-third and Maple Streets. After he passed the truck, Officer Green turned around and stopped it at Asher and Maple Streets. Appellant exited the vehicle and the officer advised him of what was going on and asked appellant if he had any weapons. Appellant replied that he did not have any weapons. Officer Green testified that Officer McNair pulled up, took appellant to the side, and conducted a pat-down search, during which time Officer Green searched the vehicle for weapons. The vehicle had dark, tinted windows. When he opened the side door and looked in, he observed a .22 Derringer pistol in plain view on the driver’s seat. Officer Green testified that the pistol was loaded with two rounds. Appellant was then arrested, and his vehicle was searched incident to arrest. Officer Green stated that he and Officer Gilbert found approximately five pounds of marijuana in the cab of the truck.
On cross-examination, Officer Green explained that he decided to look inside the vehicle because of the report of a suspected vehicle that was involved in the shots-fired call, but he did not have reason to believe that appellant had done anything himself or that there was a gun in the vehicle. He added that appellant did not present a danger to him because he was in the custody of another officer and did not have access to the weapon. In order to access the weapon, Officer Green stated that appellant would have had to open the door and grab it while Officer Green stood between him and the door to the car. Officer Green testified that he did not believe appellant when he said he did not have a gun. He stated that he searched the vehicle for police and public safety and thought he had reasonable cause to do so because of the police broadcast, although the issue of officer safety had disappeared when the other officer took appellant aside and patted him down.
At the conclusion of trial, the trial court denied the motion to suppress and found appellant guilty of simultaneous possession of drugs and a firearm and possession of a controlled substance with intent to deliver, and sentenced him to ten years in prison. An order denying the motion to suppress was entered December 17, 2001, and the judgment and conviction order was entered on December 27, 2001. Of his two points of appeal, we first consider appellant’s argument that there was insufficient evidence to convict him of simultaneous possession of drugs and a firearm because double jeopardy considerations require that we consider a challenge to the sufficiency of the evidence prior to other issues on appeal. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002).
Appellant argues the evidence is insufficient to support the simultaneous possession of drugs and a firearm conviction because the State failed to prove that appellant’s firearm met the statutory definition of a firearm. We cannot reach the merits of appellant’s argument because it is not preserved for our review.
Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that if a motion for dismissal is made, it shall be made at the close of all the evidence. It has been repeatedly held that a directed-verdict motion requires a movant to apprise the court of the specific basis on which the motion is made. Spencer v. State, 348 Ark. 230, 72 S.W.3d 461 (2002); Ark. R. Crim. P. 33.1.
Appellant’s motion for directed verdict as to the simultaneous possession charge was insufficient. Although appellant failed to abstract the motion, the record demonstrates that after the State rested and after the trial court’s finding of guilt, defense counsel merely stated,
Your honor, you made a finding of guilty before I could move to dismiss the count regarding simultaneous drugs and firearms. When you asked if there was anything else, I assumed you were referring to the motion to suppress. But on the issue of simultaneous possession, I move to dismiss for lack of sufficient proof.
Even if the motion had been timely, it did not specify the respect in which the evidence was insufficient. Thus, the issue was not preserved for review.
If the issue had been preserved, there is substantial evidence to support the conviction. Directed-verdict motions are treated as challenges to the sufficiency of the evidence. VergaraSoto v. State, 77 Ark. App. 280, 74 S.W.3d 683 (2002). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Id.
Appellant only argues that the State failed to prove that appellant’s firearm meets the statutory definition set out in Ark. Code Ann. § 5-1-102(6) (Supp. 2001). Officer David Green testified that when he opened the side door of appellant’s car and looked in the driver’s seat he observed a .22 Derringer pistol in plain view, which was loaded with two rounds. This constitutes substantial evidence that the .22 pistol was a firearm within the meaning of the statute.
Appellant also argues that the trial court erred in denying his motion to suppress because Officer Green did not have a particular and articulable suspicion that a search of appellant’s truck was necessary for officer protection. The supreme court in Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003), recently clarified the standard of review of a suppression challenge. The standard is that we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Id.
The circuit court in the present case found Officer Green to be credible and that he had a reasonable suspicion that appellant was armed and that the weapon was likely inside the vehicle. The court acknowledged that appellant was being detained by other officers at the time of the search and relied on Officer Green’s testimony that he searched the vehicle based on the police dispatch call and on the concern for safety. The court, in denying appellant’s motion to suppress, specifically found “that the radio dispatch call in conjunction with area and time in which the stop occurred, and Green’s concern for officer safety, gave the officer just cause for searching the vehicle.”
Appellant does not argue that Officer Green did not have the authority to stop and interrogate him. Rather, he only contends that Officer Green’s initial search of his vehicle violated the Arkansas Constitution and Ark. R. Crim. P. 3.4. Rule 3.4 provides:
If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others.
Reasonable suspicion is defined by Ark. R. Crim. P. 2.1 as follows:
“Reasonable suspicion” means a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.
Appellant cites the cases of Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987), and Michigan v. Long, 463 U.S. 1032 (1983), in support of his argument. Both Reeves and Long involved situations where the defendants were stopped based on reports of suspected DWI. During both of the stops, officers saw weapons in plain view within the vehicle.
In upholding the search of Reeves’s vehicle, this court relied heavily on Long, stating:
The facts in Long led the Supreme Court to conclude that “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief . . . that the suspect is dangerous and . . . may gain immediate control of weapons.” Long at 1049, 103 S. Ct. at 3480. The Court then noted that if while conducting a legitimate protective search of the interior of the vehicle the officer should discover contraband other than weapons, he cannot be required to ignore the contraband, and “the Fourth Amendment does not require its suppression in such circumstances.” Long at 1050, 103 S. Ct. at 3481.
The appellant argues that the officer in the present case neither felt threatened nor had a reasonable suspicion that the appellant was dangerous. In Long, the lower court had determined that it was-not reasonable for the officers to fear the driver because he was effectively under their control during the investigative stop and could not get access to any weapons that might have been located in the car. Also, the driver of the vehicle had not manifested a violent disposition. In reversing the state court’s decision, the Supreme Court stated that such suspects not only have the opportunity to break away from police control and retrieve a weapon from the vehicle, but also, if not placed under arrest, they would ultimately be able to reenter the vehicle and have access to any weapons inside. Long at 1052, 103 S. Ct. at 3482. Our reading of the record in this case reveals ample evidence that Officer Redding felt that the presence of the weapon constituted a threat and that, for his own safety and that of others nearby, it was necessary to secure the weapon while the appellant was being detained by the second officer.
Reeves v. State, 20 Ark. App. at 25-26, 722 S.W.2d at 884-85.
The same reasoning that the Supreme Court used in Long and that we relied on in Reeves supports the circuit court’s decision in this case. The court in Long held that the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief that the suspect is dangerous and may gain immediate control of weapons.
Although Officer Green testified that appellant did not present a danger to him because he was in the custody of a fellow officer, it was still possible that appellant could have broken away from police and had access to any weapons in the truck. Moreover, unlike Long and Reeves, appellant was stopped because his vehicle met the description of the police broadcast regarding a crime involving a weapon. Because appellant’s vehicle met the description and he was found within minutes of the police broadcast and within blocks of the scene of the shots-fired incident, it was reasonable for Officer Green to believe that appellant could be dangerous and could gain control of a weapon. While the facts of Reeves and Long indicate that the officers saw the weapons in plain view without having to first enter the vehicle, Officer Green did not observe the weapon until he opened the door to search for weapons. Once Officer Green opened the door of the car, which had dark-tinted windows, the weapon was in plain view on the driver’s seat. He testified that he had a reason to believe that a weapon was in appellant’s car because of the police broadcast. Because appellant was stopped as a result of the shots-fired report that identified the suspect as driving a vehicle that met the description of appellant’s truck, it was reasonable for Officer Green to search the passenger compartment of the automobile for the safety of the officers and the safety of others. If the officers had released appellant without conducting the search, he could have returned to the truck and had access to the weapon.
Another case cited by the State also supports the trial court’s decision. In Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), police received reports of incidents involving robbery, kidnapping, and murder that had occurred earlier in the afternoon. The broadcast contained a description of the suspect, as well as the vehicle and license number. The suspect was described as armed and extremely dangerous. The police observed a vehicle matching the description and initiated a stop. While one officer frisked the appellant, another officer searched the immediate area of the car where the appellant had been sitting, and found a weapon. The appellant filed a motion to suppress, which was denied. On appeal, he argued that both the stop and the search were unreasonable. The supreme court relied on Terry v. Ohio, 392 U.S. 1 (1967), in affirming the trial court’s decision denying the motion to suppress. With respect to the search, the court reasoned:
The search here was completely reasonable when considered under the totality of the existing circumstances. The officers would have taken an unnecessary risk if they had attempted to talk with the appellant before searching him and the accessible areas of his car; removing appellant from his car was a prerequisite to the safety of the officers in making such a search. Although appellant was standing behind the car with his hands on the trunk at the time of the search, the mere fact of appellant’s removal from the car did not remove the possible danger to the officers and thereby obviate the necessity for the search. It was certainly reasonable to believe that a suspect believed to have kidnapped, robbed, and executed a Game and Fish Officer, and, simultaneously, attempted to do the same thing to another person was capable of breaking for a weapon inside his car, and probably would have been highly motivated to do so. Here, the limited search of the car was both “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, supra.
Hill v. State, 275 Ark. at 82, 628 S.W.2d at 289. Although the facts in Hill were more compelling given the more serious nature of the crimes, the reasoning supports the trial court’s decision in this case. Unlike Reeves and Long, the gun in Hill was not found in plain view. Rather, the officers entered Hill’s vehicle to conduct the search for weapons and found the weapon under the driver’s seat.
Based on the totality of the circumstances, we cannot say that the trial court’s decision denying the 'motion to suppress was clearly erroneous.
Affirmed.
Pittman and Robbins, JJ., agree. | [
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John B. Robbins, Judge.
On October 20, 1999, appellant Brenda Gause was injured in an automobile collision with an uninsured motorist. Ms. Gause was a named insured under a policy issued by appellee Shelter General Insurance Company. The policy provided limits of $25,000.00 in uninsured-motorist coverage and $5,000.00 in medical pay coverage, for which separate premiums were paid. Ms. Gause filed suit against Shelter on January 2, 2001, for uninsured-motorist benefits, and amended her complaint on April 4, 2001, to seek payment of medical expenses. In January 2002, Shelter agreed to pay all medical expenses, which totaled $2071.12. The case proceeded to a jury trial on the issue of underinsured-motorist coverage.
Prior to trial, Shelter made a motion to introduce evidence that it had paid all of Ms. Gause’s medical expenses pursuant to the medical-payment provision of the policy. Shelter argued that introduction of the medical bills would be misleading if it was not allowed to introduce evidence of payment. Ms. Gause objected, arguing that Shelter was not entided to an offset for these payments, and that the payments were inadmissible because they were part of a compromised settlement. The trial court granted Shelter’s motion and permitted evidence of payment. In addition, the trial court refused to give Ms. Gause’s proffered jury instruction that included medical expenses as a measure of damages. The jury returned a verdict awarding Ms. Gause $16,000.00 in damages.
Ms. Gause now appeals, raising two arguments. She first contends that the trial court erred in permitting Shelter to offset from its uninsured-motorist coverage the amount it had paid under its medical-expense coverage. In the alternative, she argues that the trial court erred in allowing evidence of payment of her medical bills because such payment was part of a compromised settlement and inadmissible under Ark. R. Evid. 408. We agree with appellant’s first argument, and we reverse and remand on that basis.
The outcome of this case is controlled by our supreme court’s holding in Shelter Mut. Ins. Co. v. Tucker, 295 Ark. 260, 748 S.W.2d 136 (1988). In that case, the jury awarded the appellee $25,000.00 under her uninsured-motorist policy, plus $9979.70 in medical expenses under the medical-payment provision of the policy. One of the issues raised on appeal by the appel lant insurance company was that it was entitled to a setoff for the award of medical expenses. The supreme court disagreed, and reasoned:
In the alternative, the appellant contends that the trial court should have allowed it to set off the damages due under the medical payment provisions by the amount paid under the uninsured motorist coverage. This court has held that an insurance company is prohibited from setting off one payment under its policy against another one under the same policy. State Farm Mut. Auto Ins. Co. v. Sims, 288 Ark. 541, 708 S.W.2d 72 (1986). We have recognized that the right of reimbursement and credit is allowed pursuant to Ark. Code Ann. § 23-89-207 (1987) in a situation where there are payments from more than one source. Id. That is not the case here.
In the present case, the trial court effectively gave Shelter a setoff for its medical payments, and this was erroneous because an insurance company cannot set off one payment under its policy for another one under the same policy.
Shelter argues that the setoff was proper and cites Shelter Mut. Ins. Co. v. Bough, 310 Ark. 21, 834 S.W.2d 637 (1992), and State Farm Mut. Automobile Ins. Co. v. Rose, 52 Ark. App. 175, 916 S.W.2d 764 (1996). However, those cases are distinguishable from the instant case because in each of those cases the appellee had received the policy limits of the tortfeasor’s liability coverage, and the issue involved whether he could collect under both his under-insured-motorist coverage and medical-payment provision of the policy. In Shelter Mut. Ins. Co. v. Bough, supra, the supreme court held that the appellant insurance company had a right to subrogation for the medical payments it made. However, this credit was authorized pursuant to Ark. Code Ann. § 23-89-207 (1987), because there were payments from more than one source.
Shelter further argues that Shelter Mut. Inc. Co. v. Tucker, supra, is inapplicable because in that case the appellee recovered the full policy limits of her uninsured-motorist coverage, and thus recovery of her medical expenses did not amount to a double recovery. It maintains that Ms. Gause has been made whole, and will be given a double recovery if she is allowed to recover under both coverages because her damages were less than the policy limits. However, we do not interpret the supreme court’s holding so narrowly. The supreme court in that case did not draw the distinction that is now being suggested by Shelter, and it is well settled that this court is bound to follow the precedents of the Arkansas Supreme Court. See Smith v. Aluminum Co. of America, 78 Ark. App. 15, 76 S.W.3d 309 (2002).
Because Shelter was not entitled to a setoff for medical payments made to Ms. Gause, the trial court erred in allowing evidence of such payments and in failing to instruct the jury to consider medical expenses as a measure of damages. Based on our disposition of the first issue, it is unnecessary to address Ms. Gause’s argument that evidence of payment was inadmissible as part of a compromised settlement.
Reversed and remanded.
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[Dissenting opinion only on denial of Petition for Rehearing]
John Mauzy Pittman, Judge,
dissenting. I disagree with the majority’s conclusion that the February 2001 order was final for purposes of appeal.
The appeal arises from an order granting appellees a roadway across appellant’s land pursuant to Ark. Code Ann. § 27-66-401 (Repl. 1994). That statute allows an owner of land, situated so as to make an access road over the land of another necessary, to compel an adjacent landowner to permit the establishment of an access road. The landowner from whom the right-of-way is taken is entitled to recover money damages for the land actually taken and for any damage done to the balance of his land. Arkansas Game & Fish Commission v. Lindsey, 299 Ark. 249, 771 S.W.2d 769 (1989).
Here, the trial judge entered an order in February 2001 establishing appellees’ right to a roadway across appellant’s land. The majority has declared that this was a final order from which the appeal should have been taken. I disagree. Express exceptions aside, an appealable order is one that dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Petrus v. Nature Conservancy, 330 Ark. 722, 957 S.W.2d 688 (1997).
The February order patently fails to resolve all the outstanding issues presented to the trial court. As previously noted, the landowner from whom a right-of-way is taken is entitled to recover money damages for the taking, but the February order did not finally resolve the issue of money damages. Instead, the February order specifically orders that a survey be made by a qualified and licensed surveyor so as to “provide a legal description of the property to be conveyed and an exact quantity of the land taken” so that money damages could be awarded on the basis of the quantity of land actually taken. Simply put, the February order reserved for later decision the question of monetary damages; ergo, that order does not conclude the parties’ rights to the subject matter in controversy and is, by definition, not a final order.
The majority appears to argue that the February order is nevertheless final because it provides a formula for determining the monetary damages by announcing that the ultimate award will be computed on the basis of $6,000.00 per acre. I do not understand this argument. No monetary award can be computed on the basis of the February order because that order expressly leaves unresolved the other variable necessary to compute the monetary damages, i.e., the exact quantity of the land taken. Even ignoring the glaring absence of a money judgment, the February order could be viewed as a final resolution of the parties’ rights only were we to assume that the trial judge wholly abdicated his duty to pass on the credibility of the ordered survey and intended to accept the results of the surveyor without regard to whether the surveyor’s measurement of the area taken amounted to a few square inches or the entire North American continent. But it would be error for the trial judge to abdicate his responsibility to make the necessary factual findings, and we may not presume that he made such an error in the absence of a showing to the contrary. To the contrary, in the absence of a showing otherwise, the presumption attendant upon every judgment of a court of competent jurisdiction is that it was entered in accordance with the law. See, e.g., Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972). In the present case, there is no indication that the trial judge considered that the February order concluded the rights of the parties to the subject matter in controversy. Any lingering doubts should be removed by the trial judge’s own statement, in a subsequent order, that he did not consider the February order to be final because it did not conclude the rights of the parties by awarding money damages. | [
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Olly Neal, Judge.
This is an appeal from the denial of a motion to suppress in the Crawford County Circuit Court, after which appellants entered conditional pleas of nolo contendere for possession of marijuana with the intent to deliver and reserved their right to appeal the suppression denial. Each appellant was fined $3,500 plus costs and sentenced to ten years’ imprisonment in the Regional Punishment Facility with nine years suspended. On appeal, appellants argue that the trial court erred in denying their motions to suppress. We affirm.
On October 15, 2001, Trooper Raymond Triplett stopped appellants’ vehicle on Interstate 40 for following too closely. Triplett advised the driver, appellant Loretta Jackson, and her passenger, appellant William Miller, of the reason for the stop and requested identification; both complied with the officer’s request. The officer issued Jackson a citation for driving on a suspended license and gave her a written warning.
During the course of events, Trooper Triplett learned that Miller had rented the car and that he and Jackson were traveling from California to Georgia for a couple of days to see some friends. Triplett looked inside the vehicle, noticing “not too many clothes or any kind of luggage in the back seat,” just “a jacket, perhaps small food items.” Triplett then asked Jackson and Miller about their clothing and luggage, and they both informed Triplett that everything they had was in the back seat of the vehicle. Both Jackson and Miller advised Triplett that they did not have any knowledge as to what was in the trunk.
Finding this suspicious, Trooper Triplett asked Jackson if she would object to a search of the vehicle, to which she responded that she could not give consent because she had not rented the vehicle. Triplett advised Jackson that “because she was driving the vehicle that she was in control, and had authority to grant consent.” Triplett also noticed that “Mr. Miller lost all eye contact with me. He sunk down in his seat and looked straight ahead. He appeared to be highly nervous at that point.” The officer stated that Jackson did not give him consent; therefore, he advised her that he was going to “run [his] K-9 around the vehicle for a quick K-9 scan.” Trooper Triplett went to his car and retrieved his canine.
When Trooper Triplett walked the canine around the car, the dog gave an alert or indication by stopping and jumping up at the trunk and scratching several times with its paws. The trooper then informed Jackson and Miller that he was going to search the trunk. When he opened the trunk, Trooper Triplett found three black suitcases filled with wrapped packages of marijuana. Trooper Triplett placed appellants under arrest. Both were charged with possession of a controlled substance with intent to deliver.
Appellants moved to suppress the evidence seized during the traffic stop, arguing that the evidence was obtained in violation of the Fourth and Fourteenth Amendments to the United States Constitution, and Article II, Sections 8 and 10, of the Arkansas Constitution. The motions were denied. Thereafter, appellants entered conditional pleas of nolo contendere, and the trial court sentenced them accordingly. This appeal followed.
Appellants do not challenge the legality of the initial stop or their arrest. On appeal, appellants argue, pursuant to Ark. R. Crim. P. 24.3, that the trial court erred in denying their motion to suppress evidence. In response, the State first argues that appellants have not demonstrated that they are entitled to a conditional-plea appeal and that we are without jurisdiction to hear the case. We will address this issue first.
Conditional Plea
Rule 24.3 of the Arkansas Rules of Criminal Procedure states in pertinent part that:
(b) With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
* * *
(d) No plea of guilty or nolo contendere shall be accepted by any court unless the prosecuting attorney of the governmental unit in which the offense occurred is given opportunity to be heard at the time the plea is tendered. In any criminal cause in which trial by jury is a right, a court shall not accept a plea of guilty or nolo contendere unless the prosecuting attorney has assented to the waiver of trial by jury.
Ark. R. Crim. P. 24.3 (2002). The rule requires both the consent of the prosecuting attorney and the approval of the trial court; additionally, the intent to reserve the right to appeal must be entered contemporaneously with the plea. See Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999). The supreme court has interpreted Ark. R. Crim. P. 24.3(b) to require strict compliance with the writing requirement in order for the appellate court to obtain jurisdiction; this includes a requirement that the conditional plea be reserved in writing by the defendants. McMullen v. State, 79 Ark. App. 15, 84 S.W.3d 44 (2002). Absent compliance with the express terms of Rule 24.3(b), the appellate court acquires no jurisdiction to hear an appeal, even when there has been an attempt at trial to enter a conditional plea. Id.
In its argument, the State argues:
Concerning their apparent attempted conditional guilty pleas, appellants’ addendum contains only their amended judgment and commitment orders entered on May 8, 2002, and documents entided “Additional Terms/Conditions of Disposition.” Appellants’ abstract fails to provide any other basis upon which to determine if Rule 24.3 was complied with, although it recited that they entered conditional pleas. While the judge signed the judgment and commitment orders, neither the judge, the prose- curing attorney, nor Appellants also signed the attached Additional Terms/Conditions of Disposition, although they recite that theirs [sic] pleas are conditional. Thus, appellants have not demonstrated strict compliance with Rule 24.3(b) and this Court’s jurisdiction to hear the merits of their appeal.
In McCormick v. State, 74 Ark. App. 349, 354-55, 48 S.W.3d 549, 552 (2001), we stated that
Rule 24.3 does not specify the manner in which the State is to manifest its consent to the conditional guilty plea, so being present, contesting the objectionable aspects of the disposition of the case, and allowing the plea to be entered as a “negotiated plea of guilty” should be sufficient to preserve the suppression issue for appeal. Obviously, for a “negotiated” plea to exist it requires negotiation, and the only other interested party is the State. In contract law, manifestation of assent may be made by spoken words or by conduct.
There, we held that the prosecutor manifested assent by showing up in court and acquiescing to the entry of the negotiated plea agreement. We stated that “[t]o hold otherwise would be to give the State the benefit of the bargain while simultaneously relieving it of its obligation to consent.” Id. at 355, 48 S.W.3d at 552.
In the instant case, the record reflects that a suppression hearing was held on April 22, 2002, and the trial court denied appellants’ motions. The record indicates that prosecuting attorneys Marc McCune and Will Jones; Miller’s defense attorneys, Marvin Honeycutt and Charles Waldman; and Jackson’s defense attorney, Ernie Witt, were present at the hearing. Following the court’s ruling, Jackson’s defense attorney, Witt, informed the trial court that “[w]e’re going to do a conditional plea, Judge, so hopefully we may do that this morning.” Thereafter, the record reflects that appellants entered conditional pleas.
Immediately following appellants entrance of conditional pleas, a “Conditional Plea Proceeding,” was had, and the following colloquy took place:
Court: Are we going to have some conditional pleas or not? All right, the State alleges here that on or about the 16th day of October of 2001, that you unlawfully and feloniously possessed marijuana with intent to deliver, a schedule VI controlled substance, weight being greater than 100 pounds. Do each of you understand the nature of the charge?
Dependant Jackson: Yes.
Defendant Miller: Yes.
Court: Do you understand that you have a right if you believe you’re innocent to a trial by jury, do each of you understand that?
Defendant Jackson: Yes.
Defendant Miller: Yes.
Court: The fact that you’re here this morning, indicates to the Court that you’re about to enter pleas in the case, give up your right to a trial by jury, give up your right to confrontation and simply plead to the charge, am I correct about that?
Mr. Witt: Yes sir, it’s a conditional plea, Judge.
Mr. Honeycutt: That’s correct, that’s on both of them, a conditional.
Court: Are you entering your pleas here based on the belief that you are in fact in violation, subject to the decisions by any appellant [sic] court on the legal issues involved.
Defendant Jackson: Yes.
Defendant Miller: Yes.
Court: All right, tell me about it.
Mr. Jones: Your Honor, on the date alleged in t;he information officers stopped the 2001 Nissan Maxima that these defendants were traveling in for following too closely; officers then ran a K-9 around the vehicle, and the K-9 alerted to the trunk area of the vehicle. Officers then searched the trunk area and found three black suitcases which contained bundles of marijuana, which weighed approximately 100 pounds, and the marijuana did test positive at the State Crime Lab, Your Honor.
Court: Is that true as it relates to you, Loretta?
Defendant Jackson: Yes.
Court: Is that true as it relates to you, William?
Defendant Miller: Yes.
Court: Each of you entering your plea voluntarily?
Defendant Jackson: Yes.
Defendant Miller: Yes.
Court: Each of you understand that the range of punishment here is 5 to 30 years in the Arkansas Department of Corrections [sic] — or is it 6 to 30, I guess isn’t it, and/or a fine of $15,000?
Defendant Jackson: Yes.
Defendant Miller: Yes.
Court: Are either of you under the influence of any drug or anything to keep you from understanding what’s happening?
Defendant Jackson: No.
Defendant Miller: No.
Court: Do you fully understand what’s going on here, each of you?
Defendant Jackson: Yes.
Defendant Miller: Yes.
* * *
Court: Loretta, how do you plead on possession of marijuana with intent to deliver?
Defendant Jackson: No contest.
Court: How do you plead, William?
Defendant Miller: No contest.
The Court then sentenced the appellants.
The State correctly points out that the only thing we have in the abstract is appellants’ judgment and commitment orders with an attached sheet entitled “Additional Terms/Conditions of Disposition.” These sheets indicate that the pleas entered were conditional, but do not indicate that they were with the approval of the court and consent of the prosecuting attorney. Found in the record were documents entitled “PLEA STATEMENT.” However, neither of these documents indicate that they were approved by the court and consented to by the prosecuting attorney nor do they include the word “conditional” on them anywhere. See Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998) (where the record reflected that the handwritten word “conditional” appeared above the typed heading “PLEA STATEMENT” at the top of the form signed by appellant, and where that portion of the plea statement acknowledging waiver of the right to appeal was crossed out and initialed by appellant, appellant met the Ark. R. Crim. P. 24.3(b) requirement of “reserving in writing” his right to appellate review).
Nevertheless, what we have before us are appellants’ judgment and commitment orders with an attached sheet entitled “Additional Terms/Conditions of Disposition.” These sheets indicate that the pleas entered were conditional. Additionally, we have the conditional plea proceeding immediately following the suppression hearing where the trial court asked defense counsels, “[a]re we going to have some conditional pleas or not?” Finally, we have the presence of prosecuting attorney Will Jones who, during the conditional plea proceeding, informed the court of the facts of the case. Therefore, in accordance with our holding in McCormick v. State, supra, the prosecutor manifested assent by showing up in court and acquiescing to the entry of the negotiated plea agreement. To hold otherwise would be to give the State the benefit of the bargain while simultaneously relieving it of its obligation to consent. See McCormick v. State, 74 Ark. App. at 355, 48 S.W.3d at 552.
Motions to Suppress
In reviewing denial of a motion to suppress evidence, the appellate court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Hilton v. State, 80 Ark. App. 401, 96 S.W.3d 757 (2003). A determination of the preponderance of the evidence depends heavily on questions of credibility and weight to be given testimony, and the appellate court defers to the superior position of the trial court on. those questions. Id.
Appellants contend that the trial court erred in denying their motions to suppress, according to the case of Knowles v. Iowa, 525 U.S. 113 (1998), because (1) probable cause did not exist as Trooper Triplett’s only observation in attempting to reach the threshold of probable cause was that Mr. Miller broke eye contact when Ms. Jackson asserted her constitutional right to refuse consent to a search; and (2) Trooper Triplett did not have the authority to continue questioning them after he issued the traffic citations because (a) he did not fear for his safety and (b) he had gathered all necessary information for issuing a citation. We find appellants’ arguments unpersuasive.
In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Probable cause is defined as facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected. Id. “During this process, the officer may ask the motorist routine questions such as his destination, the purpose of the trip, or whether the officer may search the vehicle, and he may act on whatever information is volunteered.” Id. at 158, 60 S.W.3d at 474. In assessing the existence of probable cause, appellate review is liberal rather than strict; whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. Id.
An officer who has reasonable cause to believe that a moving or readily movable vehicle contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is on a public way or other area open to the public. Vega v. State, 56 Ark. App. 145, 939 S.W.2d 322 (1997). Furthermore, a canine sniff of the exterior of a vehicle does not amount to a Fourth Amendment search. Willoughby v. State, 76 Ark. App. 329, 65 S.W.3d 453 (2002). Moreover, when an officer has a police dog at his immediate disposal, a motorist’s detention may be briefly extended for a canine sniff of the vehicle in the absence of reasonable suspicion without violating the Fourth Amendment. Id. Once a canine dog alerts, an officer has probable cause to suspect the presence of illegal contraband. See id.
In the instant case, Trooper Triplett made a traffic stop because he had probable cause to believe that appellants’ vehicle had violated a traffic law, namely following too closely. During the course of this stop, Trooper Triplett learned that appellants were traveling from California to Georgia to visit some friends, that they did not have any luggage, and that they did not know what was in the trunk of the vehicle. When Trooper Triplett asked appellant Jackson whether he could search the vehicle, appellant Miller became nervous. When consent was denied, Trooper Triplett walked his canine around the vehicle, and the dog alerted near the trunk of the vehicle. Although mere nervousness, standing alone, will not constitute reasonable suspicion of criminal activity and grounds for detention, see Laime v. State, supra, no further justification was needed here because neither appellant was under arrest and both were free to leave. However, upon learning the information that he did while conducting the traffic stop, Trooper Triplett was entitled to search the vehicle on Interstate 40 because the car was readily movable. See Vega v. State, supra. Furthermore, we cannot conclude that the trial court clearly erred in denying appellant’s motion to suppress because even in the absence of reasonable suspicion and without violating the Fourth Amendment, Trooper Triplett, with his police dog at his immediate disposal, could perform a permissible canine sniff. The additional time it took for the dog to walk around the car was a minimal intrusion on appellants’ personal liberty. Once the dog alerted, this constituted probable cause for Triplett to search appellants’ vehicle.
Affirmed.
Gladwin and Baker, JJ., agree. | [
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John B. Robbins, Judge.
This appeal is from an interlocutory order denying appellant Lehman Properties, Limited Partnership’s motion to compel arbitration. The primary issues on appeal are whether the trial judge erred in holding that the Federal Arbitration Act (“FAA”) does not apply to this case because interstate commerce is not involved and that the claims are not arbitrable under the Arkansas Uniform Arbitration Act (“AUAA”). We agree with the circuit judge that the FAA does not apply but reverse his finding that the claims are not arbitrable under the AUAA.
Appellee BB&B Construction Company, Inc., located in Garland County, Arkansas, entered into a contract with appellant to construct a subdivision in Bentonville, Arkansas. Appellant, which develops subdivisions, is an Arkansas partnership and maintains its principal place of business in Rogers, Arkansas. Northstar Engineering Consultants, Inc., situated in Bentonville, prepared the construction specifications for the project.
In paragraph 16.1 of the February 16, 1999, contract between appellant and appellee, the following dispute resolution provision appeared:
All claims, disputes and other matters in question between OWNER and CONTRACTOR arising out of or relating to the Contract Documents or the breach thereof (except for claims which have been waived by the making or acceptance of final payment as provided by paragraph 14.15) will be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining, subject to the limitations of this Article 16. This agreement so to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this Article 16 will be specifically enforceable under the prevailing law of any court having jurisdiction.
In 2001, appellee filed a complaint against appellant and Northstar in the Garland County Circuit Court, alleging that appellant and Northstar had committed fraud, deceit, fraudulent inducement, fraudulent misrepresentation, and negligence, causing it to sustain damages of not less than $380,000.
Appellant pled arbitration as an affirmative defense and filed a motion to compel arbitration pursuant to section 16.1 of the contract. According to appellant, the FAA and the AUAA required the dispute to be submitted to arbitration. As exhibits to its motion, appellant filed a copy of the parties’ contract; the affidavit of Shawki Al-Madhoun, president of Northstar; and invoices from two suppliers of materials, Benton County Stone Company, Inc., and Flughes Supply, Inc.
A hearing was held on the motion to compel arbitration. In his letter opinion, the judge stated:
As the case stands, the plaintiff has alleged negligence, fraud, deceit, and fraudulent inducement and misrepresentation against the defendants. Clearly, tort claims are not arbitrable under our statute. Based on the current state of the record, it would be improper to rule that this is actually a contract case and thus subject to arbitration and governed by the mandatory arbitration provision.
In the order denying appellant’s motion to compel arbitration, the judge found that the contract did not involve sufficient interstate commerce to invoke the application of the FAA. He also found that, although the AUAA, Ark. Code Ann. §§ 16-108-201 through 16-108-224 (1987 and Supp. 2001), applied, the tort claims alleged by appellee were not arbitrable under that act. This appeal follows from that order.
Standard of Review
The denial of a motion to compel arbitration is an immediately appealable order. Showmethemoney Check Cashers, Inc. v. Williams, 342 Ark. 112, 27 S.W3d 361 (2000). Arkansas Code Annotated section 16-108-219(a) (1987) authorizes an appeal from an order denying an application to compel arbitration. American Ins. Co. v. Cazort, 316 Ark. 314, 871 S.W.2d 575 (1994). Our review of a trial court’s denial of a motion to compel arbitration is de novo. IGF Ins. Co. v. Hat Creek P’ship, 349 Ark. 133, 76 S.W.3d 859 (2002); Walton v. Lewis, 337 Ark. 45, 987 S.W.2d 262 (1999).
Arguments on Appeal
Appellant argues on appeal that the FAA mandated arbitration of appellee’s claims and that appellee’s claims are arbitrable under the AUAA.
The Federal Arbitration Act
According to appellant, the contract between the parties involves interstate commerce and, therefore, came within the ambit of the FAA. That act 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 (2002). When the underlying dispute involves interstate commerce, the FAA, instead of the AUAA, applies. Walton v. Lewis, supra. Section 1 of the FAA defines “commerce” as “commerce among the several states . . . .” 9 U.S.C. § 1 (2002). State courts have concurrent jurisdic tion with the federal courts to enforce rights granted by the FAA. McEntire v. Monarch Feed Mills, Inc., 276 Ark. 1, 631 S.W.2d 307 (1982).
Appellant contends that interstate commerce was involved in this case because a major subdivision was to be constructed and goods crossed state lines for that purpose. Appellee, however, points out that it purchased those goods from local suppliers and argues that) as far as these parties were concerned, the fact that the suppliers ordered the goods from out of state did not amount to interstate commerce. The invoices from Hughes Supply, Inc., listed “Tontitown, AR” and an Arkansas telephone number. They also listed the company’s Dallas, Texas, post office box and showed that the supplies were sold to appellee in Hot Springs, Arkansas, and shipped to the work site in Bentonville. The invoices from Benton County Stone Company, Inc., listed a Pryor, Oklahoma, post office box and telephone number, as well as an Arkansas telephone number for its quarry. Appellant does not dispute appellee’s assertion that the goods were purchased from local suppliers.
The appellee purchased these supplies locally, all of the parties are situated in Arkansas, and the work was done in Arkansas. Moreover, the contract itself did not evidence a transaction involving interstate commerce. Thus, the judge was correct in finding that the FAA does not apply.
The Arkansas Uniform Arbitration Act
Appellant further argues that appellee’s claims are arbitrable under the AUAA. Unlike the FAA, the AUAA may not be used to enforce agreements to arbitrate if the cause of action sounds in tort. Arkansas Code Annotated section 16-108-201 (b) (Supp. 2001) provides:
(b) A written provision to submit to arbitration any controversy thereafter arising between the parties bound by the terms of the writing is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract; provided, that this subsection shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract.
Appellant contends, however, that appellee’s claims, which are phrased in terms of negligence and fraud, actually sound in contract and are, therefore, subject to arbitration under the AUAA. According to appellant, if a party is allowed to transform contract issues into tort issues in order to circumvent a contract’s arbitration clause, the strong public policy favoring arbitration will be thwarted.
As a matter of public policy, arbitration is strongly favored. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001). Arbitration is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Id. Arbitration is a matter of contract between parties. Id. The same rules of construction and interpretation apply to arbitration clauses as apply to agreements generally. The construction and legal effect of a written contract to arbitrate are to be determined by the court as a matter of law. Id. Accordingly, we will give effect to the parties’ intent as evidenced by the arbitration agreement itself. Id. In light of the policy favoring arbitration, such agreements will not be construed strictly but will be read to include subjects within the spirit of the parties’ agreement. Id. Any doubts and ambiguities of coverage will be resolved in favor of arbitration. Id. Under Arkansas law, however, claims sounding in tort are not arbitrable, regardless of the language used in the arbitration agreement. Hawks Enters., Inc. v. Andrews, 75 Ark. App. 372, 57 S.W.3d 778 (2001).
It is true that legitimate tort claims can arise out of contractual relationships in some situations. Westark Specialties, Inc. v. Stouffer Family Ltd. P’ship, 310 Ark. 225, 836 S.W.2d 354 (1992). However, unless the conduct involves a foreseeable, unreasonable risk of harm to the plaintiff s interests, a breach of contract is generally not treated as a tort if it consists merely of a failure to act (nonfeasance). The court will not declare a matter nonarbitrable under the AUAA merely because the manner in which a party chooses to characterize its action initially appears to render the matter as falling outside the AUAA; instead, the claim must legitimately sound in tort. Terminix Int’l Co. v. Stabbs, 326 Ark. 239, 930 S.W.2d 345 (1996).
Appellee alleged in its complaint that appellant and Northstar had prepared false plans and specifications for the development of the subdivision; had failed to obtain proper regulatory authority for the subdivision’s development; and had represented certain facts in writing and verbally that were untrue, false, and misleading, causing appellee to spend hundreds of thousands of dollars in material and labor for which it had not been compensated. Appellee’s list of the false and misleading statements included the following:
(a) Lehman and Northstar possess the requisite skill, education, experience and authority to develop the Heathrow Subdivision;
(b) location of streets;
(c) location of utilities;
(d) regulatory authority for work to be performed;
(e) timely performance by Lehman and Northstar to allow BB&B to timely perform its services;
(f) prompt payment by Lehman and Northstar;
(g) volumes of material present;
(h) plans and specifications were complete and accurate;
(i) BB&B would be compensated for down time caused by Lehman and Northstar;
(j) BB&B would be compensated for abnormal or unanticipated site conditions;
(k) BB&B would receive payment for stored materials; and
(l) any extra work performed by BB&B would be paid.
Appellee also asserted that appellant and Northstar had committed the following acts:
(a) failure to timely and correctly locate streets;
(b) failure to timely and correctly locate utilities;
(c) failure to timely and correctly obtain regulatory authority for work to be performed;
(d) failure to timely and correctly perform work by Lehman and Northstar to allow BB&B to timely perform its services;
(e) failure to make prompt payment by Lehman and Northstar;
(f) failure to estimate volumes of material present; and
(g) failure to complete accurate and timely plans and specifications.
According to appellee, after the project was shut down by Benton-ville city officials in April 1999, Northstar’s employees, as agents for appellant, promised to pay appellee if it would return to work on the subdivision; in reliance upon these representations, appellee performed services for which it had not been paid.
Our review of appellee’s allegations leads us to conclude that, although appellee characterized its claims in tort, they do not legitimately sound in tort and that this is actually a breach-of-contract action. Accordingly, appellee’s claims are arbitrable under the AUAA.
Affirmed in part; reversed in part and remanded.
Bird and Griffen, JJ., agree. | [
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John F. Stroud, Jr., Chief Judge.
Upon the trial court’s denial of their prehearing motions to suppress, Diana Lancaster and Michael Kehn entered conditional pleas of guilty, pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, to the offenses of manufacture of a controlled substance (marijuana), possession of marijuana with intent to deliver, and possession of drug paraphernalia with intent to deliver. They were each sentenced to five years’ probation; Lancaster was assessed a $2500 fine and Kehn was ordered to pay a $5000 fine. The cases were consolidated for purposes of appeal. Appellants argue that the trial court erred in denying their motions to suppress because the police officers had no probable cause to be on their property and therefore had no legitimate basis for the issuance of a search warrant; they further argue that the search warrant was invalid because it was issued by an “improper magistrate.” We affirm.
When reviewing the trial court’s denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances. Embry v. State, 70 Ark. App. 122, 15 S.W.3d 367 (2000). The appellate court will reverse a denial of a motion to suppress only if the trial court’s ruling was clearly against the preponderance of the evidence. Id.
At the hearing on the motion to suppress, Investigator Afton Fletcher of the drug task force testified that in May 2001 he was assisting probation officer Curt Decker in attempting to locate one of Decker’s probationers, Terry Copeland. The officers were unsure where Copeland was living, so they were going from house to house asking residents if they knew Copeland or where he lived. When the officers came to appellants’ driveway about 12:15 p.m., they pulled in; Fletcher stated that the house could not be seen from the road.
Appellant Lancaster came outside when the officers pulled up, and they asked her if she knew where Copeland lived. Fletcher said that the officers did not suspect any criminal activity on Lancaster’s part at that time. However, Lancaster began telling the officers about people who were shooting guns in the woods behind her house. When asked where, Lancaster pointed to the rear of her house. When she pointed, Fletcher said that he saw a garden with a rail fence around it behind her house toward an outbuilding; Fletcher said that he could see marijuana plants between the fence rails. The marijuana was in boxes approximately four-feet wide and eight-feet long, and the plants looked to have been freshly watered. When asked about the plants, Lancaster said “where”; when Lancaster and the officers walked over to the garden, Lancaster asked “where” again, and Fletcher told her, “right there.” Lancaster then became upset, said that marijuana should be legal, and started toward the house. The officers followed Lancaster to the front porch, where Fletcher advised her of her Miranda rights. Fletcher asked if they could search the house, which Lancaster refused. As Lancaster attempted to open the door and go inside, Fletcher heard dogs inside the house; he then pulled her back out onto the porch, shut the door, and told Lancaster that she was under arrest. Lancaster was transported to jail while the officers secured the scene and Fletcher obtained a search warrant. Fletcher testified that appellant Kehn arrived at the house during the execution of the search warrant; he was told what the officers were doing and was advised of his Miranda rights. Kehn denied knowledge of how the plants got onto his property.
Probation officer Curt Decker testified that in May 2001 Investigator Fletcher and Deputy Burnett were assisting him in searching for Terry Copeland, one of his probationers. Fie said that he had not heard from Copeland in over a month, and there was some question as to whether he was living in that area or if he had moved to Batesville. Decker said that he did not know where Copeland was, and on that day they were simply going from house to house attempting to locate him. He said that they had stopped at a number of residences to ask if anyone knew where Copeland lived or had any idea where to find him, but they had no leads. He said that when they turned into the appellants’ property, they had “no idea” who lived there, but that they were just trying to locate Copeland or some information on him. Decker recognized Lancaster when she came outside, and she began telling the officers about gunshots and pointing toward the back of her house. Decker said that was when Fletcher noticed something and began asking Lancaster questions and walking toward the garden. He said that once the marijuana plants were pointed out to him, he could see the tops of them from where he had been standing.
Appellants contend on appeal that the officers had no reason to be on their property and therefore their motions to suppress should have been granted. Appellants cite no authority in their brief for this argument, and this alone is grounds to affirm the trial court’s ruling. This court will not consider an argument when the appellant presents no citation of authority or convincing argument in its support and it is not apparent without further research that the argument is well taken. Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001).
Nevertheless, the trial court did not err in denying appellants’ motions to suppress. Appellants complain that the officers had no reason to come onto their property because they did not have any information that the probationer for whom they were searching was on appellants’ property. There is nothing in the Constitution that prevents the police from addressing questions to any individual. Jefferson v. State, 349 Ark. 236, 76 S.W.3d 850 (2002). The Fourth Amendment does not protect the merely subjective expectation of privacy, but only those expectations that society is prepared to recognize as reasonable. Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000). Police officers in Burdyshaw, acting upon an anonymous tip that a methamphetamine lab was on the premises, drove up the appellant’s driveway to ask him if they could search the residence, and appellant’s father gave written consent. In upholding the trial court’s denial of appellant’s motion to suppress the evidence obtained in the search, this court held that the expectation of privacy in driveways and walkways that are commonly used by visitors to approach dwellings is generally not considered reasonable; however, the question of whether a driveway is protected from entry by police officers is dependent upon the circumstances, with reference to factors such as accessibility and visibility from a public highway. In that case, this court was persuaded by the rationale set forth in United States v. Ventling, 678 F.2d 63, 66 (8th Cir. 1982):
The absence of a closed or blocked gate in this country creates an invitation to the public that a person can lawfully enter along the driveway during daylight hours to contact the occupants for a lawful request and if the request is refused to leave by the same way. The presence of “no trespassing” signs in this country without a locked or closed gate makes the entry along the driveway for the purposes above described not a trespass and therefore does not constitute an intrusion prohibited by the Fourth Amendment.
This court further stated, “If one has a reasonable expectation that various members of society may enter the property in their personal or business pursuits, he should find it equally likely that the police will do so.” Burdyshaw, 69 Ark. App. at 248, 10 S.W.3d at 921 (citing Oregon v. Corbett, 516 P.2d 487, 490 (1973)).
The facts of the present case are less intrusive than the facts found in Burdyshaw. Here, the officers were not requesting permission to search appellants’ premises; they were lawfully seeking assistance in locating a missing probationer when they came to appellants’ unblocked driveway and proceeded to their house to inquire if appellants knew the whereabouts of Copeland. We hold that there was no violation of appellants’ Fourth Amendment rights when the officers drove up their driveway to their house, and the trial court did not err in denying the motions to suppress.
Appellants also contend that the search warrant was invalid because it was issued by an “improper magistrate.” The search warrant was presented to and signed by Izard County District Judge Dewayne Lawrence, although the officers were from Stone County and appellants’ property was located in Stone County. Investigator Fletcher testified that the warrant was presented to Judge Lawrence because he was the only judge available at the time, and he understood that Judge Lawrence and Adam Harkey, the Stone County District Judge, had an exchange agreement with each other.
Appellants now argue that this jurisdiction-exchange agreement was invalid pursuant to Arkansas Code Annotated section 16-17-102 (Repl. 1999). However, Arkansas Code Annotated section 16-17-102 has no application to this case: that statute concerns the exchange of jurisdiction of district court judges, formerly municipal court judges, to enter into agreements that authorize such judges to sit as judge in each other’s districts.
The statute applicable to the present case is Arkansas Code Annotated section 16-82-201 (a) (Supp. 2001), which provides, “A search warrant may be issued by any judicial officer of this state only upon affidavit sworn to before a judicial officer which establishes the grounds for its issuance.” This precise issue was addressed by our supreme court in Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993). In that case, the appellant argued that a search warrant was invalid because a Marion County municipal judge had signed the warrant for Baxter County without a written agreement pursuant to Ark. Code Ann. § 16-17-206. In rejecting this argument, the supreme court held:
Appellant’s construction would have us limit the ability of a judge to issue a warrant to affect only property in the county in which the judge has jurisdiction. Section 16-17-206 is not applicable. The statute which controls a judicial officer’s ability to issue a search warrant is Ark. Code Ann. 16-82-201 (1987). It provides in pertinent part: “A search warrant may be issued by any judicial officer of this state only upon affidavit sworn to before a judicial officer which establishes the grounds for its issuance.” Ark. Code Ann. 16-82-201(a). The applicable statute does not give any indication that the jurisdiction of a judicial officer in issuing search warrants is limited to the county in which the judicial officer was elected or appointed. In fact, it expressly provides that a search warrant may be issued by any judicial officer. We refuse to find that judicial officers are limited to issuing search warrants only in the counties in which they were elected or appointed and, therefore, find that the search warrant issued by Judge Bearden was valid.
311 Ark. at 590-91, 847 S.W.2d at 7. In light of the Brenk holding, appellants’ argument that the warrant was invalid must fail.
Affirmed.
Robbins and Crabtree, JJ., agree. | [
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Andree Layton Roaf, Judge.
Appellant Gary Van DeVeer filed suit against appellee RTJ, Inc., d/b/a George’s Flowers (“RTJ”), for injuries he sustained when he fell down a flight of stairs while working on RTJ’s greenhouse. Van DeVeer alleged in his complaint that his injuries were proximately caused by the negligence of RTJ in failing to warn of a dangerous condition, to maintain the premises in a safe and prudent manner, to have a handrail on the stairway, and to construct the stairs in compliance with local and state codes. The trial court granted summary judgment to RTJ, finding that the stairs were an obvious danger. On appeal, Van DeVeer argues that: (1) the trial court erred in granting summary judgment for RTJ when either genuine issues of material fact exist, or the undisputed facts are suscep- tibie to differing interpretations as to whether the dangerous condition was “open and obvious” and whether he had notice of the dangerous condition; (2) assuming the dangerous condition was “open and obvious,” the trial court erred as a matter of law in finding that the landowner’s duty of care was completely abrogated solely because the dangerous condition that caused injury was “open and obvious.” We agree that summary judgment is inappropriate and reverse and remand on both points.
According to Van DeVeer’s deposition, he was employed by Precision Glass and Mirror, Inc., and was doing work for his employer at George’s Flowers in May 1996, replacing broken windows in the greenhouses. After working for three or four days in the east greenhouse, Van DeVeer began to work on the west greenhouse. Van DeVeer testified that, while working in the west greenhouse, he noticed a set of stairs leading up from the greenhouse into the showroom of George’s Flowers. Van DeVeer stated that he saw that there was no handrail and that the stairs appeared to be unsafe; therefore, he avoided them. After spending several hours in the west greenhouse that afternoon, Van DeVeer stated that he worked at another site for two or three days.
Van DeVeer returned to George’s Flowers on the afternoon of May 2, 1996, to finish replacing the windows. Van DeVeer had previously gained entrance to the greenhouses by an outside door, which one of the employees would unlock for him. However, when he drove up that afternoon, Van DeVeer testified that the door appeared to be “all closed up,” although he did not try to open it. Van DeVeer stated that he assumed everyone was still at lunch, so he went inside the store to enter the greenhouse through an interior door. Van DeVeer stated that he approached the interior door, which opened outward into the greenhouse, turned the door knob, opened the door partway and took a step, opened the door the rest of the way, attempted to take a second step, and fell down the stairs, hitting his head. Van DeVeer testified that he fell because there was no landing area behind the door into the greenhouse, as there usually is at the top of a staircase. The pictures of the staircase indicate that not only is there no landing beyond the door, but the edge of the floor does not quite reach to the door, and there is a gap or drop-off between the edge and the bottom of the closed door. Van DeVeer stated that he did not see any sort of sign on the door warning people to watch their step.
When questioned as to whether he already felt the stairs were a dangerous condition on the day that he fell, Van DeVeer stated that he guessed that he did, but that he did not think about that as he was walking toward the stairs that day. Van DeVeer testified that he was “just concerned about getting in there and finishing up the job.” When asked if he would have been able to walk safely down the stairs if he had just opened up the door and looked down before taking a step, Van DeVeer replied that he supposed he could have. Van DeVeer stated that it was not dark in the greenhouse and that there was nothing blocking his view of the steps.
An employee of George’s Flowers, Barbara Spears, testified that she witnessed Van DeVeer open the door and fall down the stairs. Spears stated that no customers had fallen down the stairs to her knowledge, but that she had almost stumbled a couple of times. According to Spears, the stairs were too narrow, and it was easy for a person to lose their footing if they were not careful. She stated that the employees also had to watch their step when using the stairs. Spears testified that there were no signs to warn of the immediate drop-off. Spears could not remember if she or other employees had talked directly with the owner of George’s Flowers, Randall Jones, about the condition of the stairs, but she did testify that he was aware that the stairs were bad. However, during his deposition, Jones denied that any employee had ever told him of any problems with the stairs.
Van DeVeer first argues that the trial court erred in granting summary judgment for RTJ when genuine issues of material fact exist as to whether the dangerous condition was “open and obvious” and whether he had notice of the dangerous condition. Summary judgment should only be granted when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Smith v. Rogers Group, Inc., 348 Ark. 241, 72 S.W.3d 450 (2002). All proof must be viewed in the light most favorable to the nonmoving party, and any doubts must be resolved against the moving party. Id. If, after reviewing undisputed facts, reasonable men might reach different conclusions from those facts, then summary judgment should be denied. Plant v. Wilbur, 345 Ark. 487, 47 S.W.3d 889 (2000).
The duty of care that RTJ owes to its invitees, such as Van DeVeer, is stated as follows in Restatement (Second) of Torts, § 343 (1965):
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
The basis for a premises owner’s liability under this rule is the superior knowledge of an unreasonable risk of harm of which the invitee, in the exercise of ordinary care, does not or should not know. Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995). There is an exception to this general rule, which states that a “possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts, § 343A(1) (1965).
Arkansas cases have also recognized the general duty that a premises owner owes to an invitee and the exception to this duty where the dangerous condition is either known or obvious to the invitee. See, e.g., Jenkins v. Hestand’s Grocery, supra; Jenkins v. Int’l Paper Co., 318 Ark. 663, 887 S.W.2d 300 (1994); Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994); Carton v. Missouri Pac. R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990); Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974); Ramsey v. American Auto. Ins. Co., 234 Ark. 1031, 356 S.W.2d 236 (1962). These rules are the basis of AMI Civ. 3d 1104, which states that the premises owner owes a duty to an invitee to use ordinary care to maintain the premises in a reasonably safe condition. No such duty exists, however, if the condition of the premises that creates the danger was known by or obvious to the invitee, unless the premises owner should reasonably anticipate that the invitee would be exposed to the danger despite his knowledge of it or its obvious nature. Id.
The question of whether a duty is owed is always a question of law and never one of fact for the jury. Bryant v. Putnam, 322 Ark. 284, 908 S.W.2d 338 (1995); Jordan v. Jerry D. Sweetser, Inc., 64 Ark. App. 58, 977 S.W.2d 244 (1998). Here, Van DeVeer contends that summary judgment is inappropriate because there are material questions of fact susceptible to differing interpretations regarding his knowledge of the dangerous condition of the stairs and their obvious nature. Section 343A of the Restatement, which discusses known or obvious dangers, defines “known” as “not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves.” “Thus the condition or activity must not only be known to exist, but it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated.” Id.
According to Van DeVeer’s deposition, he noticed the stairs on the first afternoon that he went to work in the west greenhouse. Van DeVeer testified that the stairs looked unsafe because there was no handrail and that he avoided using them. He stated that he did not want to climb the stairs while carrying any materials or ladders because “there is no place to grab.” As Van DeVeer argues, although he was aware that the stairs had no handrail, there is no evidence that he had knowledge of the particular condition that caused his fall, which was the immediate drop-off at the door to the greenhouse. Van DeVeer had never gone up or down the stairs prior to his accident, and he stated that he did not expect there to be no landing at the top of these stairs. Because Van DeVeer did not have knowledge of the particular dangerous condition that caused him to fall, he could not have appreciated the risk he was taking by using these stairs to enter the greenhouse. Thus, it cannot be said on the facts before us, as a matter of law, that Van DeVeer had “knowledge” of the dangerous condition associated with the stairs. See Lively v. Libbey Mem’l Physical Med. Ctr., 311 Ark. 41, 841 S.W.2d 609 (1992) (although there were signs warning to stay a certain distance away from whirlpool jets, the appellant was injured by underwater suction pipes, and the court stated that a jury could conclude that the dangers associated with the underwater suction were hidden or not easily recognized; thus, the court held that it could not be stated as a matter of law that the appellant was aware of the risk presented).
Van DeVeer also contends that the trial court erred in finding that the stairs were an “open and obvious danger.” According to section 343A of the Restatement, a dangerous condition is “obvious” where “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence, and judgment.” RTJ argues that the stairs were an obvious condition because Van DeVeer stated during his deposition that if he had pushed the door open and looked down before proceeding forward, he thought that he could have seen the stairs and walked down them safely.
Although no Arkansas cases have involved stairs such as the ones at issue in this case, two cases from other jurisdictions are helpful in determining whether these particular stairs present a danger that is “open and obvious.” In Bertrand v. Alan Ford, Inc., 449 Mich. 606, 617, 537 N.W.2d 185, 190 (1995), the court stated that under ordinary circumstances, the danger of tripping and falling on a step is open and obvious, and the public policy of encouraging people to take reasonable care for their own safety precludes imposing a duty on the possessor of land to make ordinary steps “foolproof.” However, where there are special aspects of the particular steps that make the risk of harm unreasonable, whether by their character, location, or surrounding conditions, then the duty of the possessor of land to exercise reasonable care remains. Id. In Allgauer v. Le Bastille, Inc., 101 Ill. App.3d 978, 428 N.E.2d 1146 (1981), as in the present case, the appellant fell down a set of stairs that had no landing and were concealed by a door that opened out onto the stairs. The trial court granted summary judgment to the premises owner, finding that the appellant knew of the dangerous condition because she had climbed the same stairs to enter the business. Id. The appellate court reversed, holding that the dangerous condition was hidden by the door until it was opened and that the fact that the stair could have been seen for a split second by the appellant before she fell “does not necessarily remove it from the realm of hidden dangers.” Id. at 981-82, 428 N.E.2d at 1148. The premises owner argued that the appellant should have stopped and looked at the stairs before she walked through the door and that she should have known that the stairs were dangerous to descend because she had ascended them two hours before. Id. However, the court stated that these contentions do not go to the issue of whether the owner was required to give warning of the danger, but rather, they concern whether the appellant was guilty of contributory negligence. Id.
In this case, the dangerous condition that caused Van DeVeer’s fall, the fact that the stairs had no landing, was at least partially hidden by the door when it was closed. Although Van DeVeer admitted that he could possibly have safely descended the steps if he had pushed the door open, stopped, and looked, he contends that a reasonable person in his position would have expected a landing behind the door and would not have recognized and appreciated the danger in time to prevent himself from falling. Because the door opened away from the person entering the greenhouse, a reasonable person might well have taken a couple of steps forward while pushing the door open and fallen before noticing the drop-off. In Flentje v. First National Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000), the supreme court said:
Summary judgment is not proper, however, “where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ.” Thomas v. Sessions, 307 Ark. 203, 818 S.W.2d 940 (1991).
As we further explained in Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998), we will not engage in a “sufficiency of the evidence” determination. We have ceased referring to summary judgment as a drastic remedy. We now regard it simply as one of the tools in a trial court’s efficiency arsenal; however, we only approve the granting of the motion when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, i.e., when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Id. However, when there is no material dispute as to the facts, the court will determine whether “reasonable minds” could draw “reasonable” inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonably drawn from the undisputed facts and whether reasonable minds might differ on those hypotheses.
340 Ark. at 569-70, 11 S.W.3d at 536.
There are no factual disputes in this case about the physical condition of the stairs, such as the fact that the stairs contained no landing and were hidden by a door. Regarding Van DeVeer’s knowledge of the dangerous condition, it is also undisputed that Van DeVeer had never used the stairs in question, and although while working on the lower level, he had noticed that the stairs did not have a handrail, he stated that he did not know that there was no landing at the top of the stairs. However, even if there are no disputed questions of fact regarding whether Van DeVeer had knowledge of the dangerous condition or whether the stairs were an obvious danger, we conclude that reasonable men could reach dif ferent conclusions from these facts regarding the duty owed by RTJ, and summary judgment was inappropriate in this instance.
Van DeVeer also contends that, even assuming that the dangerous condition was “open and obvious,” the trial court erred as a matter of law in finding the landowner’s duty of care was completely abrogated. As stated in AMI 1104, a finding that the dangerous condition is known by or obvious to the invitee does not necessarily eliminate a duty on the part of the premises owner to maintain the premises in a reasonably safe condition. If the landowner should reasonably anticipate that the invitee will be exposed to the danger despite his knowledge of it, or its obvious nature, then the duty owed by the owner is not abrogated. AMI 1104; Restatement (Second) of Torts § 343A. Section 343A lists examples of situations where the landowner should reasonably anticipate that harm to an invitee may arise, notwithstanding the known or obvious danger of the condition:
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the owner has reason to expect that the invitee’s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk, (citations omitted). However, it is not conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.
See also Jenkins v. International Paper Co., supra. However, this exception to the “open and obvious danger” rule has been applied in Arkansas in only one situation, where the invitee is forced, as a practical matter, to encounter the danger in order to perform his job. Jenkins v. International Paper Co., supra; Carton v. Missouri Pac. R.R. Co., supra; Kuykendall v. Newgent, supra.
Van DeVeer does not argue that he was forced to encounter the stairs in order to perform his job. Unlike in the above cited cases, Van DeVeer had an alternative to using the stairs because he could have asked one of the employees to open the outside door for him, as he stated that he had done on every other occasion. Instead, Van DeVeer asserts that whether RTJ should have reasonably anticipated the harm, despite the known or obvious nature of the dangerous condition, is a question of fact for the jury that cannot be decided on summary judgment. As support for this proposition, Van DeVeer cites to the language set out above in section 343A of the Restatement, which states that where the risk of harm from a known or obvious danger is unreasonable, the fact that the danger is known or obvious is not conclusive in determining the duty of the possessor. We agree and conclude that reasonable men could reach different conclusions as to whether RTJ should have anticipated that harm to its invitee might arise under the circumstances presented in this case; thus, we hold that summary judgment was also inappropriate on this issue.
Reversed and remanded.
Stroud, C.J., and Griffen, J., agree.
An earlier appeal in this case was dismissed for lack of finality in Van DeVeer v. George’s Flowers, Inc., 76 Ark. App. 408, 65 S.W.3d 488 (2002). | [
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Wendell L. Griffen, Judge.
Apollo Coating RCS, Inc., appeals from an order granting judgment in the amount of $35,964 to Brookridge Funding Corporation in an action to collect on an account. Appellant argues that the trial court erred in not rendering written findings of fact and conclusions oflaw as it requested and in awarding judgment to the appel-lee. We agree and reverse and remand for compliance with Arkansas Rule of Civil Procedure 52.
On August 3, 1998, appellant placed an order for 170,000 pig ears at a cost of $45,900 from Rudy Gutierrez d/b/a Diversified Marketing International (DMI), which was to be shipped in several installments to another corporation, Hartz. On August 12, 1998, DMI entered into an agreement to sell some of its accounts receivables to appellee. Among the accounts sold and assigned to appellee was the account of appellant. Appellant was informed of the assignment and was aware that all future payments were to be made to appellee. On November 19, 1998, appellant paid appellee $9,936 for the first shipment of pig ears sent by DMI to Hartz. However, appellant would not pay appellee for the subsequent shipments of pig ears DMI delivered to Hartz on August 19, 1998, and on August 28, 1998. Therefore, appellee filed an action against appellant alleging that appellant was indebted to it in the amount of $35,964.
At the hearing on the matter, appellant denied any indebtedness, claiming that the two shipments of pig ears had been rejected by Hartz. On September 4, 2000, the trial court entered an order awarding judgment to appellee. However, the order did not set forth findings of fact and conclusions of law. Thus, on September 7, 2000, appellant filed a motion requesting that the trial court make specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52. The trial court declined to rule on this motion.
Appellant appeals raising two arguments for reversal: (1) The trial court erred in not rendering written findings of fact and conclusions of law as it requested; and (2) The trial court erred in awarding judgment to the appellee as the goods were rejected. We agree with appellant’s first point on appeal.
Rule 52 of the Arkansas Rules of Civil Procedure provides in part:
(a) Effect. If requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon, and judgment shall be entered pursuant to Rule 58 . . .
(b) Amendment.
(1)Upon motion of a party made not later than 10 days after entry of judgment, the court may amend its findings of fact or make additional findings and may amend the judgment accordingly.
Under this rule, there is a clear distinction between motions or requests made pursuant to Rule 52(a) and Rule 52(b)(1). As appellant correctly notes, under Rule 52(a), a trial court is required to make specific findings of fact and state separately its conclusions of law if a timely request is made. McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). In comparison, Rule 52(b) is reserved for motions or requests that ask the trial court to amend previously made findings of fact or to make additional findings. Rule 52(h) does not mandate that the trial court take action even when a timely motion or request is made. McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (1980).
In the instant case, the trial court did not set forth its findings of fact and conclusions of law in its order. Appellant, therefore, filed a motion requesting that the trial court make specific findings of fact and conclusions of law. As appellant’s motion was for the trial court to make findings and conclusions, not to amend them, it was governed by Rule 52(a). The motion was timely made, filed only three days after the judgment was entered. Thus, the trial court was required to provide written findings and conclusions as appellant had requested. Accordingly, we must reverse and remand for compliance with the provisions of Rule 52(a).
We recognize that our opinion in Price v. Garrett, 79 Ark. App. 84, 84 S.W.3d 63 (2002), contains language that is contradictory to our holding in this case. Therefore, we specifically limit Price v. Garrett to the holding that a postjudgment motion for findings of fact and conclusions of law made under Rule 52(a) does not extend the time for filing a notice of appeal under Rule 4 of the Rules of Appellate Procedure. To the extent that any language in Price v. Garrett is in conflict with our holding in this opinion, Price v. Garrett is overruled.
Reversed and remanded.
Stroud, C.J., Hart and Baker, JJ., agree.
Bird and Vaught, JJ., dissent. | [
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Terry Crabtree, Judge.
This is a real-property case involving a dispute between two brothers. The Saline County Chancery Court found that the appellees, Bruce and Mary Schrader, had adversely possessed the disputed land, awarded them treble damages for destruction caused to their property by the appellant, and awarded them attorney’s fees. On appeal, appellant claims that the trial court erred (1) in ruling that appellees acquired the land in question via adverse possession, (2) in awarding appellees treble damages, and (3) in awarding appellees attorney’s fees. We affirm.
Although chancery cases are reviewed de novo on the record, the appellate court does not reverse unless it determines that the chancery court’s findings of fact were clearly erroneous. Fleece v. Kankey, 77 Ark. App. 88, 72 S.W.3d 879 (2002). 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 conviction that a mistake was committed. Hedger Bros. Cement & Material v. Stump, 69 Ark. App. 219, 10. S.W.3d 926 (2000). In reviewing a chancery court’s findings of fact, the appellate court gives due deference to the court’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997).
On May 29, 1998, the appellant, Ronald Schrader, filed a quiet-title action against property owners on four sides of his eighty-acre tract of land. Appellees own property that adjoins the west side of appellant’s land. Ronald Schrader and Bruce Schrader lived on the property, which is now owned by appellees, as children. In 1976, appellees bought the property from Ronald Schra-der and Bruce Schrader’s grandfather, who had owned it since 1928. In the 1930’s their grandfather installed a fence along the east side of his property. Ronald Schrader bought the land that borders the east side of his brother’s property in 1993 from a non-relative. After Ronald Schrader filed his quiet-tide action, he presented to the trial court a recent survey to prove that the sixty-year-old fence was not on the actual property line between his property and his brother’s property. Appellees counterclaimed that they adversely possessed the property in question. In support of their argument, they pointed to the fence erected over sixty years earlier, their maintenance of the disputed property, and the fact that they planted crops on the land.
On June 29, 2000, the trial court found that appellees had adversely possessed the disputed property and granted appellant an easement by necessity on a lane leading to his property. On August 6, 2001, appellees filed a petition against Ronald Schrader for damages to their fence and property and requested a permanent injunction restricting Ronald Schrader from entering their property. Appellees also complained that Ronald Schrader had violated the court’s previous order with regard to the boundary line. Upon motion by appellant, the matter was merged into the quiet-title action as it was not fully adjudicated at that time. On December 3, 2001, the trial court entered an order, which permanently enjoined appellant from entering appellees’ property.
On March 5, 2002, the trial court awarded appellees treble damages for appellant’s deliberate destruction of their plants, crops, and fence materials. The trial court also awarded appellees attorney’s fees and costs due to appellant’s disregard of the court’s previous determination as to the correct location of the boundary line between the two properties and the violation of the permanent injunction entered by the court on December 3, 2001.
At trial, appellant requested the trial court to state for the record the reason it denied admission of certain exhibits offered by appellant. The court stated:
At the conclusion of the testimony approximately two years ago, I went out to the property with [the parties’ attorneys]. I walked the property. I thought it was very, very clear regardless of where the actual survey lines may be, that where the actual lines, whether you call it title by acquiescence or adverse possession, were, considering the pond, considering how one part of the disputed property was mowed and well-kept and the other was basically undergrowth. There was a ridge around the pond. There was then a creek on the other side, as I remember. And that’s why. And it’s been two years, and I think it’s clear as it can be where the property line should be, in fact, as opposed to perhaps wherever the survey line is.
After both parties rested, appellant moved for a directed verdict on the issues of adverse possession based on (1) the absence of proof of hostile intention and (2) the requirement of Ark. Code Ann. §18-11-106 (Supp. 1997) that a party claiming adverse possession must prove payment of taxes on the property in issue or on contiguous property. The trial court took the motion under advisement.
For appellant’s first point on appeal, he contends that the trial court erred in finding that appellees adversely possessed the land in dispute because appellees failed to present proof of payment of ad valorem taxes on the property. The Arkansas General Assembly amended the statutory requirements for proof of adverse possession in Act 776 of 1995, now codified at Ark. Code Ann. § 18-11-106. In order for a claimant to establish tide by actual adverse possession under the new law, the claimant must prove color of title and payment of taxes in addition to all of the elements necessary under existing adverse possession law in the state of Arkansas. Jones v. Barger, 67 Ark. App. 337, 1 S.W.3d 31 (1999). Arkansas Code Annotated § 18-11-106 (Supp. 1999) states:
(a) To establish adverse possession of real property, the person, and those under whom the person claims, must have actual or constructive possession of the property being claimed and have either:
(1)(A) Held color of title to the property for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the property.
(B) For purposes of this subdivision (a)(1), color of title may be established by the person claiming adversely to the true owner by paying the ad valorem taxes for a period of at least seven (7) years for unimproved and unenclosed land or fifteen (15) years for wild and unimproved land, provided the true owner has not also paid the ad valorem taxes or made a bona fide good faith effort to pay the ad valorem taxes which were misapplied by the state and local taxing authority; or
(2) Held color of title to real property contiguous to the property being claimed by adverse possession for a period of at least seven (7) years, and during that time have paid ad valorem taxes on the contiguous property to which the person has color of tide.
(b) The requirements of this section are in addition to all other requirements for establishing adverse possession.
(c) This section shall not repeal any requirement under existing case law for establishing adverse possession, but shall be supplemental thereto, and, specifically, this section shall not diminish the presumption of possession of unimproved and unenclosed land created under § 18-11-102 by payment of taxes for seven (7) years under color of title, or the presumption of color of title on wild and unimproved land created under § 18-11-103 by payment of taxes for fifteen (15) consecutive years.
Ark. Code Ann. § 18-11-106 (Supp. 1999).
, AppeEees sought to establish adverse possession to the land in question when they fEed their counterclaim on December 16, 1999. AppeEees provided no proof to the trial court of payment of ad valorem taxes on the land in dispute or on contiguous land. AppeEant advocates that this failure in proof is fatal for appeEees as they did not comply with the legislature’s supplemental requirements outiined in Ark. Code Ann. § 18-11-106. We, however, do not find appeEant’s argument persuasive. We hold that the law enacted in 1995 does not apply in this case.
There is no dispute that appeEees bought their land in 1976. The testimony presented below established that appeEees began adversely possessing the disputed property at that time. On the anniversary of the seventh year, appeEees’ rights to the property vested. These events occurred many years before the General Assembly contemplated a change in the law regarding adverse possession. As appeEees’ rights to the disputed property had vested weE before 1995, appeEee need not comply with the 1995 statutory change. Cf. Patrick v. McSperitt, 64 Ark. App. 310, 983 S.W.2d 455 (1998) (appeEant did not raise the issue of whether Ark. Code Ann. § 18-11-106 should be given retroactive effect where the adverse possession evolved into ownership before the statute was changed).
For appeEant’s second point on appeal, he maintains that the trial court erred by awarding appeEees treble damages. After appeEant initiated his quiet-title action, appeEees filed an action in circuit court seeking damages from appeEant for trespass and damage to their property. They also sought a permanent injunction forbidding appeEant “ever to have access to their property.” By order entered December 3, 2001, that case was transferred to the same division of circuit court in which the boundary-line case between the parties was pending. The order that made final disposition of the boundary-line case and also made final disposition of the damage-claim issues was entered on March 5, 2002.
Appellees proceeded under Ark. Code Ann. § 18-60-102 (Supp. 1997) in claiming treble damages. Subsection (a) of the statute provides:
If any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade or any timber, rails, or wood, standing, being, or growing on the land of another person; shall dig up, quarry, or carry away any stone, ground, clay, turf, mold, fruit, or plants; or shall cut down or carry away, any grass, grain, corn, cotton, tobacco, hemp, or flax, in which he has no interest or right, standing or being on any land not his own, or shall wilfully break the glass, or any part of it, in any building not his own, the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.
The trial court stated in its March 5, 2002, order, “The damages awarded are based upon the actual compensatory loss of $675.00 in fencing materials and plants, and were trebled due to the Court’s determination that the actions by [appellant] in removing and destroying the plants and fence materials were deliberate, rather than by mistake or error.”
Appellant admitted that he removed and destroyed appellees’ fence posts, fence wire, and plants without appellees’ permission. The fences that appellant destroyed were interior fences around appellees’ gardens and not fences on the disputed boundary fine. Appellees introduced into evidence a videotape, which showed appellant on different occasions destroying fences, tossing the materials in appellees’ pond, and driving his truck over appellees’ property. Appellant admitted driving his truck onto appellees’ field and making tire ruts in the grass. In addition, he admitted that he drove through appellees’ vegetable garden on more than one occasion and destroyed crops in the garden. Based upon the testimony and videotape surveillance presented at trial, the chancellor found that appellant had committed acts specifically prohibited by Ark. Code Ann. § 18-60-102(a). As a consequence, the trial court awarded appellees treble damages for a total of $2025. We cannot say that the chancellor clearly erred in making his award.
For appellant’s final point on appeal, he claims that the trial court erred by awarding appellees $1400 in attorney’s fees and costs in the March 5, 2002, order. Appellant argues that appellees are not entitled to recover attorney’s fees due to his violation of the injunctions because attorney’s fees are not specifically set out by statute to be awarded in property-damage cases. He also contends that his destruction of appellees’ property occurred in April of 2001, which was before the injunction was issued on December 3, 2001. Appellant ignores the fact that two previous court orders issued in 1999 and 2000 restrained him from trespassing onto appellees’ property. We recognize, however, that the trial court wrongly referenced the December 3, 2001, order as being violated. This misstatement by the trial court is of no moment as appellant violated previous orders issued by the chancellor.
Essentially, the trial court awarded appellees attorney’s fees to punish appellant for his wilful disregard of its previous orders. For a person to be held in contempt for violating a court order, that order must be clear and definite as to the duties imposed upon the party, and the directions must be expressed rather than implied. Wakefield v. Wakefield, 64 Ark. App. 147, 984 S.W.2d 32 (1998). In cases of civil contempt, the objective is the enforcement of the rights of the private parties to litigation. Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986). Punishment for civil contempt will be upheld by this court unless the trial court’s order is arbitrary or against the weight of the evidence. Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974). We hold that the trial court’s award of attorney’s fees in fight of appellant’s contemptuous actions was not arbitrary or against the weight of the evidence.
Affirmed.
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Karen R. Baker, Judge.
A jury in Hempstead County Circuit Court convicted appellant, Jerry Hawkins, of delivery of a controlled substance, cocaine. He was sentenced to ten years’ imprisonment in the Arkansas Department of Correction and fined $10,000. On appeal, he asserts that the trial court erred when it overruled his objection to the admission of State’s exhibit two, crack cocaine, in that the State failed to establish a chain of custody by not showing with reasonable probability that the evidence had not been altered. We affirm.
Officer David Jones testified that on September 26, 2000, he was working undercover when he approached appellant. He stated to appellant that he was “trying- to score [him] a rock.” Appellant replied, “Well, I can help you out.” The officer handed appellant thirty dollars, and appellant soon returned with two rocks of crack cocaine. The officer placed the substance into a brown envelope, initialed it, and sealed it. At that time, he carried the evidence to lock-up at the South Central Drug Task Force office. It was then delivered to the State Crime Lab by Chief Investigator Linda Card.
Chemist Roy Adams testified that the evidence seemed to be in the same condition as when the lab received it. He described the evidence as “one plastic bag (which I’m talking about the plastic bag inside it) containing one white-off-white, rock-like substance.” Both the chemist and the officer identified the brown envelope as State’s exhibit one, and the crack cocaine as State’s exhibit two. Upon the prosecution’s attempt to offer State’s exhibit one and two into evidence, defense counsel objected. The objection was based on chain of custody. The trial judge overruled the objection to the introduction of the exhibit. The evidence was admitted as a result. Ultimately, appellant was found guilty, sentenced, and fined. This appeal followed.
The purpose of establishing a chain of custody is to prevent the introduction of evidence that has been tampered with or is not authentic. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). The trial court must be satisfied within a reasonable probability that the evidence has not been tampered with, but it is not necessary for the State to eliminate every possibility of tampering. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). Minor uncertainties in the proof of chain of custody are matters to be argued by counsel and weighed by the jury, but they do not render the evidence inadmissible as a matter of law. Id.; Guy don, supra. Proof of the chain of custody for interchangeable items like blood or drugs needs to be more conclusive than for other evidence. Crisco, supra. On review, the appellate court will not reverse a ruling regarding the admission of evidence absent an abuse of discretion because such matters are left to the sound discretion of the trial court. Guydon, supra.
Appellant asserts that the trial court erred when it overruled his objection to the admission of the crack cocaine in that the State failed to establish a chain of custody by not showing with reasonable probability that the evidence had not been altered. The State, on the other hand, asserts that any minor uncertainties with the chain of custody went only to the weight of the evidence.
In Crisco, supra, our supreme court held that the trial court abused its discretion by receiving a substance into evidence that was not properly authenticated. Crisco is distinguishable from the facts presented in this case. In Crisco, the police officer described it as an “off-white powder substance” and the forensic chemist’s description varied significantly, describing it as “one triangular piece of plastic containing a tan rock-like substance.” 328 Ark. at 392, 943 S.W.2d at 584. The court in Crisco stated that:
In the case before us, Crisco hinges his contention of lack of authenticity on the fact that Officer Hanes’s description of the drugs differed significantly from that of the chemist, Michael Stage, in color and consistency. In fact, the chemist admitted that he would not have described the substance as off-white powder. Crisco’s point has merit. True, there was no obvious break in the chain of custody of the envelope containing the plastic bag or conclusive proof that any tampering transpired. Yet, the marked difference in the description of the substance by Officer Hanes and the chemist leads us to the conclusion that there is a significant possibility that the evidence tested was not the same as that purchased by Officer Hanes. This is especially so when we consider that the drug involved is a readily interchangeable substance. Under these circumstances, where the substance at issue has been described differently by the undercover officer and the chemist, we believe the State was required to do more to establish the authenticity of the drug tested than merely trace the route of the envelope containing the substance.
Id. at 393, 943 S.W.2d at 585 (citations omitted).
However, in McChristian v. State, 70 Ark. App. 514, 20 S.W.3d 461 (2000), this court distinguished Crisco and affirmed the trial court’s admission of the evidence. In McChristian, we stated:
Here, the substance in question was identified by the officer who retrieved it as “six rocks” of what appeared to be crack cocaine, while the chemist’s report described it as “a hard off-white rock-like substance.” While in the Crisco case there was a difference in descriptions of the color and texture of the substance (white powder substance versus tan rock-like substance), here the difference is only in a specific number of rocks versus a reference to “a hard off white rock-like substance.” We view differences in these descriptions, at most, as conflicts in evidence properly weighed by the finder of fact rather than as a failure to prove the authenticity of the cocaine. Furthermore, there were no allegations of tampering. Thus, the State sufficiently established the chain of custody. It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with.
70 Ark. App. at 518-19, 20 S.W.3d at 464-65 (citations omitted).
In the present case, Officer Jones testified that when he approached appellant and told him that he was “trying to score [him] a rock,” appellant gave him two rocks. The chemist testified that “it was one plastic bag (which I’m talking about the plastic bag inside it) containing one white-off-white, rock-like substance.” As in McChristian, we view any difference in these descriptions as, at most, conflicts in evidence properly weighed by the finder of fact rather than as a failure to prove the authenticity of the cocaine.
Moreover, there was no obvious break in the chain of custody or other conclusive proof that any tampering transpired. Officer Jones testified that he packaged the items that he received from appellant, initialed the package, and sealed it. He stated that he carried the envelope to the South Central Drug Task Force office where it was locked and secured. The evidence was taken to the State Crime Lab by Chief Investigator Linda Card. Roy Adams of the crime lab identified exhibit one and two and testified that the evidence appeared to be in the same condition as it was when the lab received it. This testimony sufficiently establishes the chain of custody for the items. It is not necessary that the State eliminate every possibility of tampering; instead, the trial court must be satisfied that in all reasonable probability the evidence has not been tampered with. See Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). Therefore, we hold the trial court did not err in admitting the crack cocaine into evidence. Accordingly, we affirm.
Affirmed.
Pittman, Gladwin, Robbins, and Bird, JJ., agree.
Hart, Griffen, Crabtree, and Roaf, JJ., dissent. | [
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Karen R. Baker, Judge.
Appellant Rosetta Davis was convicted of aggravated robbery by a jury in Independence County Circuit Court. She was sentenced to twenty-three years in the Arkansas Department of Correction to be served consecutively with a sentence she was already serving. On appeal, appellant argues that the trial court committed reversible error by failing to grant her motions for directed verdict. We affirm.
The facts giving rise to appellant’s conviction are as follows. On the evening of September 8, 1999, Tammy Sue Mansfield was working as a cashier at Dugger’s Grocery Store. That night, she worked alone from 6:00 until closing at 9:00. Between 9:15 and 9:30, Ms. Mansfield set the alarm, locked the door, and walked to her vehicle. Ms. Mansfield testified that at that point, a man wearing a mask and camouflage clothing and carrying a gun appeared in front of the car. She testified that the gun was approximately a foot long. The man carrying the gun was later determined to be Doug Looney. He pointed the gun at her and forced her out of the vehicle. The two struggled, and Ms. Mansfield pulled off his mask, only seeing the back of his head. The man grabbed her purse and ran. Ms. Mansfield testified that the man hit her in the head three times during the scuffle.
Testimony showed that earlier in the evening, appellant and Looney visited Anita and Tim Ferrier. Anita testified that while Looney was visiting her home, he was wearing jeans and a t-shirt not camouflage clothing. She also stated that there was no evidence of a gun on Looney’s person that night. Anita further testified that although she did not know exactly what time appellant and Looney left her house, she estimated that it was around 9:30. Tim testified that Looney was wearing jeans and a t-shirt that night, and that the house was about six miles from Dugger’s Grocery. Testimony from Sergeant Jonathon Deeter also showed that when he arrived on the scene at Dugger’s store, Lieutenant Ferguson asked him to check the highway for anyone that might be walking along the road. As he was doing so, he saw a parked car on a dirt road off the highway without its lights or engine on; the dirt road where the car was parked was approximately 100 or 200 yards from the store. When he approached the car, appellant was sitting alone inside the car. When the officers asked her what she was doing, she told them that she was turning around. She also stated that she had just left a friend’s house. Officer Huss testified that appellant was given her Miranda warnings, and she agreed to talk to the officer. She told Officer Huss that she was out driving that evening and she was just taking a break. When initially asked if she had been with anyone that evening, she told them no. She admitted to going to the Ferrier’s home earlier that evening to get some money that someone owed her, and she told the officer that she had not seen Looney since last summer. However, she later stated that Looney had accompanied her to the Ferrier’s home that evening. She also agreed to let the officers search the car. The officers found men’s clothing and a bank statement with Looney’s name on it. She stated that she had dropped off Looney along a highway earlier that evening.
Deputy Price testified that his police dog traced a scent from the store to along the driver’s side door where appellant was found. However, the dog went from near the driver’s side door, back into a dry creek bed, and then off into a wooded area. Deputy Price stated that other officers were near the car and the trail could have been contaminated.
At the close of the State’s case, appellant moved for a directed verdict arguing that the State had failed to provide any evidence that there was an agreement showing assistance or that she had aided or abetted in the commission of the crime. Appellant also moved for a directed verdict arguing that there was a lack of evidence connecting her with the gun or that there was any agreement by her for the gun to be used. Appellant’s counsel also made a motion for a directed verdict because she was denied the right to cross examine the co-defendant. The motions for directed verdict were denied. At the close of all the evidence, appellant’s counsel renewed the motions for directed verdict, all were again denied. This appeal followed.
Directed-verdict motions are treated as challenges to the sufficiency of the evidence. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001) (citing Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000)). Wlien the sufficiency of the evidence is challenged, the appellate court considers only evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Id. Evidence, whether direct or circumstantial, is substantial if it is of sufficient force that it would compel a conclusion one way or the other without recourse to speculation and conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). This court will affirm if there is any substantial evidence to support the verdict. Id.
Appellant argues that the trial court committed reversible error by failing to grant her motions for directed verdict. Specifically, appellant argues that the State produced no evidence proving that she was an accomplice to the co-defendant, Dofig Looney, who was convicted of aggravated robbery. Arkansas law states that an accomplice is one who, with the purpose of promoting or facilitating the commission of an offense, either solicits, advises, encourages, or coerces another person to commit the offense, aids, agrees to aid, or attempts to aid the other person in planning or committing the offense, or, having a legal duty to prevent the offense, fails to make a proper effort to prevent the commission of the offense. Ark. Code Ann. § 5-2-403 (Repl. 1997). One’s status as an accomplice ordinarily is a mixed question of law and fact. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). Further, the presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant factors in determining the connection of an accomplice with the crime. Harrell v. State, 331 Ark. 232, 962 S.W.2d 325 (1998).
In this case, the evidence showed that when police approached the car and found appellant, she was unable to explain why she was sitting in the parked car, on a dark dirt road, within walking distance of Dugger’s Store, without the car fights on or the engine running. Moreover, there was evidence that appellant failed to tell the truth about having not seen Looney since last summer when she was questioned by police officers, as there was testimony placing the two together at the Ferrier’s home earlier that evening. Upon appellant’s consent to search the car, the officers found men’s clothing, from which the jury could infer that Looney changed from his jeans and t-shirt into the camouflage clothing in the car before the robbery, and a bank statement with Looney’s name on it. The police dog traced a scent from Dugger’s Store to near the driver’s side door of the car where appellant was found. Furthermore, the victim testified that during the robbery Looney was carrying a gun that was approximately a foot long. There was no evidence of a gun when Looney was seen earlier in the evening; thus, the inference was created that when he left the car to commit the robbery he took the gun from inside the car. Moreover, the jury could have infered that appellant was aware that Looney took the gun with him to commit the robbery. Our supreme court has stated that the jury is not required to lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). Likewise, circumstantial evidence can provide the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). Here the evidence supports the inference that appellant was Looney’s accomplice to the aggravated robbery. Clearly, the jury could conclude from the facts in evidence that Looney was in possession of a firearm when he left the vehicle to conduct the robbery and that appellant knew his purpose and was awaiting his return when she was approached by police officers. Thus, we hold that there was sufficient evidence to convict appellant of aggravated robbery.
Robbins, Bird, Griffen, Crabtree, and Roaf, JJ., agree. | [
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John Mauzy Pittman, Judge.
This is a second appeal from an order granting appellee summary judgment on a claim for proceeds of a life insurance policy. On April 24, 2002, this court dismissed the appeal for lack of a final order. Burnett v. Philadelphia Life Ins. Co., CA01-991 (Ark. App. April 24, 2002). The trial court entered a final order on June 4, 2002. This appeal followed. We reverse and remand.
On November 1, 1997, Emmitt Bartch, the decedent, made an application for life insurance with appellee Philadelphia Life Insurance Company through its soliciting agent, Roy Touchet. The policy named appellant Debra Burnett, the decedent’s fian-cée, as beneficiary. Touchet filled out the application by asking Bartch the questions. Bartch signed the application form on November 1, 1997. One of the questions on the application asked for disclosure of any significant medical conditions or treatment. Bartch suffered from Marfan’s Syndrome, a connective-tissue disorder. This condition was not noted on the application. Appellant presented evidence that Bartch told Touchet about this condition but that Touchet did not correctly complete the appli cation form. Appellee issued a policy effective February 27, 1998. Touchet delivered the policy to Bartch on March 9, 1998, together with a statement of good health to be signed by Bartch. This statement provided, among other things, that Bartch was in good health and had not consulted a physician within ninety days. In fact, Bartch had consulted Dr. Jack Lyon on February 12, 1998, for treatment of bronchitis, which was unrelated to the Marfan’s Syndrome. Bartch died on August 29, 1998, of complications of Marfan’s Syndrome. Appellee refused to pay the policy proceeds because the application did not disclose the Marfan’s Syndrome and the March 9, 1998, statement of good health did not disclose Bartch’s visit to Dr. Lyon for bronchitis.
Appellant filed this suit, seeking to recover the policy proceeds, statutory penalty, interest, and attorney’s fees. The suit named appellee and Touchet as defendants. Appellee filed an answer and counterclaim, seeking a declaratory judgment that appellee acted properly in voiding the policy ab initio and that appellee had no obligation to pay the proceeds under the policy. Appellee filed a motion for summary judgment, which the trial court granted, finding that the misrepresentations on the application were material as a matter of law.
In summary-judgment cases, this court need only decide if the granting of summary judgment was appropriate based upon whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Inge v. Walker, 70 Ark. App. 114, 15 S.W.3d 348 (2000). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Id. On a summary-judgment motion, once the moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Welch Foods, Inc. v. Chicago Title Ins. Co., 341 Ark. 515, 17 S.W.3d 467 (2000). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Sch., 58 Ark. App. 293, 951 S.W.2d 315 (1997).
Appellant’s argument on appeal is that summary judgment is not appropriate because there are material issues of fact remaining to be decided. In Wozniak v. Colonial Insurance Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994), this court cited a line of cases that held that, where the facts were truthfully stated to the soliciting agent but, by fraud, negligence, or mistake, are misstated in the application, the company cannot use the misstatements to avoid liability on the policy if the agent was acting within the scope of his real or apparent authority and there was no fraud or collusion on the part of the insured. Other cases in this line include Interstate Fire Insurance Co. v. Ingram, 256 Ark. 986, 511 S.W.2d 471 (1974); Reliable Life Insurance Co. v. Elby, 247 Ark. 514, 446 S.W.2d 215 (1969); Millers Mutual Fire Insurance Co. v. Russell, 246 Ark. 1295, 443 S.W.2d 536 (1969); Desoto Lfe Insurance Co. v. Johnson, 208 Ark. 795, 187 S.W.2d 883 (1945); Aetna Life Insurance Co. v. Routon, 207 Ark. 132, 179 S.W.2d 862 (1944); Southern National Insurance Co. v. Heggie, 206 Ark. 196, 174 S.W.2d 931 (1943); Union Life Insurance Co. v. Johnson, 199 Ark. 241, 133 S.W.2d 841 (1939); General Agents Insurance Co. v. St. Paul Insurance Co., 22 Ark. App. 46, 732 S.W.2d 868 (1987); Time Insurance Co. v. Graves. 21 Ark. App. 273, 734 S.W.2d 213 (1987); Gilcreast v. Providential Life Insurance Co., 14 Ark. App. 11, 683 S.W.2d 942 (1985). This court recently applied this line of cases in Neill v. Nationwide Mut. Fire Ins. Co., 81 Ark. App. 67, 98 S.W.3d 448, in reversing a grant of summary judgment because the court found unanswered questions about whether the insurance company asked and correctly recorded the insured’s answers concerning previous losses. Appellant is relying on this line of cases to establish that there are material issues of fact to be determined at trial and therefore summary judgment is inappropriate.
In Graves, supra, an insurance agent, who knew the Graveses and knew that Mrs. Graves had undergone an operation for cancer, told the insureds that he could provide her with coverage for her preexisting condition. The Graveses testified that the agent filled out the application and that they truthfully answered each question asked by the agent but that they did not read the applica tion before they signed it. One question asked on the application — whether the insured had previously been treated for cancer — was left unanswered. Subsequently, an amendment to the application was received by the agent containing the unanswered question. The amendment already had the word “no” typed on it, and the agent testified that he got Mr. Graves to sign it. The amendment stated that Mr. Graves hereby amends “my application.” Mr. Graves testified that the amendment bore his signature, but that he did not remember signing it. The court stated that the jury could have found that his signature did not constitute an untruthful statement as to Mrs. Graves’s preexisting condition.
In Ingram, supra, the agent asked Ingram questions and filled out the application, which Ingram signed. Although there were several questions answered incorrectly, Ingram testified that he correctly answered each question that the agent asked and, therefore, the agent must have inaccurately recorded his answers. The court stated that the insurance company was not entitled to a directed verdict under the evidence in that case and that there was no error in instructing the jury that, where the facts were truthfully stated to an agent but, by fraud, negligence, or mistake, the agent misstated the information, the company cannot avoid liability if the agent had authority and there is no fraud or collusion on the. part of the insured.
Appellee relies on Dodds v. Hanover Insurance Co., 317 Ark. 563, 880 S.W.2d 311 (1994), for the general rule that the knowledge of a soliciting agent cannot be imputed to the company in order to avoid liability in this case. Dodds involved a backdated policy. The insureds in Dodds contacted an agent to obtain coverage on their business. The agent submitted an application to the company for a policy expected to become effective June 1, 1989. On that same date, the insureds suffered damage to their building. The damage was reported to the agent, but not to the insurance company, the next day. On June 5, 1989, the insureds mailed the premium to the company. The company issued a policy on June 29, 1989, effective June 1, 1989. In May 1990, the insureds finally notified the company of the damage suffered on June 1, 1989. When the company refused payment, the insureds filed suit and the trial court granted summary judgment to the company. The supreme court affirmed the grant of summary judgment, holding that, because the agent was a soliciting agent, his knowledge of the loss prior to the issuance of the policy was not imputed to the company. Also, the court appeared to rely on the fact that this was a backdated policy. Dodds, supra. However, Dodds does not discuss the line of cases cited above.
Appellee also relies on Carmichael v. Nationwide Life Insurance Co., 305 Ark. 549, 810 S.W.2d 39 (1991), whére the court stated that a person is bound under the law to know the contents of the papers he signs and that he cannot excuse himself by saying that he did not know what the papers contained. In Carmichael, supra, the insured’s beneficiary appealed from an order of summary judgment in favor of the insurer. The evidence showed that the agent asked questions and recorded Mr. Carmichael’s answers on the application. Mr. Carmichael then signed the application. Based on misrepresentations in the policy that Mr. Carmichael did not suffer from diabetes, the insurer refused to pay the benefits under the policy. The appellant, Mrs. Carmichael, argued that the agent must have failed to ask her husband the question or that the agent must have inaccurately recorded his answer, because her husband had suffered from diabetes for many years and would not have responded negatively to the question. However, the court stated that there was no evidence to sustain Mrs. Carmichael’s allegations and that the only person with personal knowledge of what transpired was the agent, because Mr. Carmichael had died. The agent, in his affidavit, averred that he had asked every question on the application and that he had correctly recorded Mr. Carmichael’s answers. The court noted that Mr. Carmichael had signed a certification that the information in the application was true and stated that this was at least probative evidence of his misrepresentation. Because Mrs. Carmichael offered no evidence to rebut any of the assertions made by the insurer, the court found that summary judgment was appropriate.
As stated by Judge Mayfield of this court,
The distinction ... is that . . . the insurance agent, whether a general or soliciting agent, had been given authority by the company to obtain the information necessary to complete the application, and to accept the “knowledge” obtained in doing so. That is his “job,” so anything he learns in relation thereto is imputed to the company.
Gilcreast, 14 Ark. App. at 16, 683 S.W.2d at 945 (Mayfield, J., concurring). Furthermore, we note that Carmichael was also relied upon by the appellant in Neill v. Nationwide Mutual Fire Insurance Co., supra. We rejected the argument in that case, effectively limiting Carmichael to situations where the plaintiff offers no evidence of incorrect or fraudulent recordation of an applicant’s answers to rebut the insurer’s assertion to the contrary. In the present case, appellant did, in fact, offer such evidence in her testimony and, under such circumstances, Carmichael is inapplicable. See Neill, supra.
Appellee also makes the argument that Ark. Code Ann. § 23-79-107 (Supp. 2001) provides that an insurer may rescind a policy on proof of any misrepresentation with respect to a medical impairment. However, this argument sweeps too broadly and ignores the plain language of the statute. The statute states that misrepresentations and the like “shall not prevent a recovery” unless they are fraudulent or material. Such a statement merely provides a minimum prerequisite to the insurer’s successful defense; that is, the misrepresentation must be proved to have been fraudulent or material. See Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969) (Smith, J., concurring). That is by no means the equivalent of saying that every fraudulent or material misrepresentation shall ipso facto prevent a recovery. Id. The burden was on appellee to sustain its contention that the facts not disclosed were material to the risk assumed by it or that, in good faith, it would not have issued the policy had it known the true facts. See Old Republic Ins. Co. v. Alexander, supra; Capital Life & Accident Ins. Co. v. Phelps, 76 Ark. App. 428, 66 S.W.3d 678 (2002).
Although not cited by either party, Old Republic Insurance Co. v. Alexander, supra, held that the materiality to the risk of a fact misrepresented, omitted, or concealed is a question of fact so long as the matter is debatable. It is a question of law only when it is so obvious that a contrary inference is not permissible. Id. Here, appellee relies on two alleged misrepresentations: the nondisclosure of Bartch’s Marfan’s Syndrome on the November 1, 1997, application and the failure to disclose Bartch’s February 12, 1998, visit to Dr. Lyon for treatment ofbronchitis on the March 9, 1998, in the statement of good health. It is hard to see how Bartch’s February 12 visit to the doctor for treatment ofbronchitis could causally be related to Marfan’s Syndrome and therefore be material to the risk assumed by appellee. We believe the Marfan’s Syndrome would be a material fact. The issue is whether this was disclosed to the company via Touchet, the agent. Appellee’s vice- president, Ferry Bunting, testified by affidavit that, if appellee had known of Bartch’s health problems, it would not have issued the policy. However, Bunting offered no proof of any underwriting practices either in Bunting’s own company or within the industry generally with regard to applicants with the type of health conditions reflected in Bartch’s records.
As the supreme court recognized in Old Republic Insurance Co. v. Alexander, supra:
It is significant, as pointed out by the chancellor, that appellant produced no record of its own underwriting standards, nor did it attempt to show general standards in the underwriting profession or insurance trade by disinterested witnesses. It relied solely on the retrospective and possibly self-serving declarations of conclusions by this witness ... his testimony cannot be considered as that of a disinterested witness. In weighing testimony, courts must consider the interest of a witness in the matter in controversy. Facts established by the testimony of an interested witness, or one whose testimony might be biased, cannot be considered as undisputed or uncontradicted. While the testimony of such a witness may not be arbitrarily disregarded, a trier of facts is not required to accept any statement as true merely because so testified. It cannot be said that such testimony is arbitrarily disregarded when it is not consistent with other evidence in the case, or unreasonable in its nature or is contradicted. Nor is it arbitrarily disregarded where facts are shown which might bias the testimony or from which an inference may be drawn unfavorable to the witness’ testimony or against the fact testified to by him.
Id. at 1039, 436 S.W.2d at 835-36 (citations omitted); see also Capital Life & Accident Ins. Co., supra. Appellant denied appellee’s request for admission that Bartch did not disclose his Marfan’s Syndrome. Even if one assumes that Marfan’s Syndrome is material to the risk that appellee assumed, that does not end the inquiry. See Phelps v. U.S. Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999). For appellee to prevail, it must prove that there was a nondisclosure of that information. Appellant and another witness both testified by affidavit that they were present when Touchet asked Bartch whether Bartch had any disease or physical disorder and Bartch replied that he had Marfan’s Syndrome. This is where what Bartch told Touchet becomes critically important and why we believe there are material issues of fact that would preclude summary judgment. See Neill v. Nationwide Mut. Fire Ins. Co., supra.
Reversed and remanded.
Robbins, J., agrees.
Vaught, J., concurs.
After this court dismissed the appeal, appellant filed a motion to dismiss Touchet from the case. The motion was granted, and a final order was entered on June 4, 2002. | [
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Larry D. Vaught, Judge.
Appellant Ricky Justus was charged with false imprisonment, theft of property, and domestic battery. On March 31, 2004, Justus entered a plea of guilty as to all charges alleged. Included in his plea was an admission that the domestic battery occurred in the presence of his six-year-old daughter. As a result of his plea and admission, along with the fact that Justus had four or more prior felony convictions, he faced a potential term of 130 years’ imprisonment in the Arkansas Department of Correction. On April 6,2005, ajury trial was held on the issue of sentencing. After hearing the evidence, the jury imposed the maximum sentence. Judgment was entered on April 22,2005, and a timely notice of appeal was filed on May 17, 2005.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Justus’s counsel filed a motion to withdraw as counsel because “[t]here are no non-frivolous issues that would support an appeal in this case.” Counsel’s motion was accompanied by an abstract and brief purportedly referring to everything in the record that might arguably support an appeal, a record of all motions and requests made by Justus and denied by the court, and a statement of the reasons why counsel considers none of these adverse rulings to be a meritorious ground for reversal. The clerk of this court furnished Justus with a copy of his counsel’s brief and notified him of his right to file a pro se brief. However, Justus did not file a brief. The State filed a letter with the Court stating that it has no adversarial interest in this matter because Justus did not file a pro se brief. From our review of the record and the brief presented to us, we find compliance with Rule 4-3 (j), but we cannot say that the appeal is wholly without merit.
Our concern centers on an argument that Justus made prior to the sentencing trial. In relation to his status as a habitual offender, he argued that although he had three prior convictions for breaking or entering (he consecutively broke into three automobiles in a Wal-Mart parking lot), the convictions should be consolidated because they all arose from the same incident. In support of his position, Justus relied on Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989).
In Tackett, the appellant was involved in a motor-vehicle accident that resulted in the death of a passenger on the scene. Id. Another victim at the scene was injured and went into a coma. Id. Appellant was charged with manslaughter as to the death of the passenger at the scene and ultimately convicted. Id. His conviction was affirmed in Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). Almost four years later, the comatosed victim died from her injuries. Her death resulted in a second charge of manslaughter. Tackett, 298 Ark. at 26, 766 S.W.2d at 413. At the second manslaughter trial, the court allowed introduction of the first manslaughter charge to support a habitual-offender sentence enhancement. On appeal, our supreme court found that this decision by the trial court was contrary to due process and fundamental fairness and was not within the spirit of the Habitual Offender Act. Id.
In support of his motion to be relieved as counsel, Justus’s attorney distinguishes the Tackett case, pointing out that Justus’s acts were not the result of a single impulse — that each act was a “separate incident with separate victims.” He then noted that he was “unable to locate any case law that supports [Justus’s] position before the trial court that several felonies arising out of the same incident cannot be counted individually to support a habitual allegation,” and “[f]or the foregoing reasons, this argument has no merit.”
Based on these statements we believe that a fundamental misunderstanding exists as to what constitutes a meritless appeal. If indeed there is no case law that supports Justus’s position — and we, like counsel, have found none — that does not render Justus’s appeal “wholly without merit” or “wholly frivolous,” which are the standards we apply in no-merit cases. Ofochebe v. State, 40 Ark. App. 92, 93, 844 S.W.2d 373, 374 (1992). Indeed, without clear case law addressing Justus’s claim, it is impossible to meet the rigid Anders requirements. The test is not whether there is case law supporting Justus’s argument, but whether there is case law disposing of his argument.
The fact that Justus’s counsel was unable to find authority supporting Justus’s sentencing claim does not render the issue wholly frivolous, and we are obligated to consider the issue on its merits. Accordingly, we direct Justus’s attorney to file a brief developing an adversarial presentation relating to Justus’s habitual-offender argument and any others that counsel may deem appropriate.
Motion to Withdraw as Counsel is denied.
Rebriefing Ordered.
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John Mauzy Pittman, Chief Judge.
This case involves a dispute between two Georgia residents regarding ownership of stock in the Bank of Trumann. When the Bank of Trumann, which is located in Arkansas, was sold to another party, it was obliged to deliver the proceeds of the sale to the owner of the stock. Difficulties arose in doing so with respect to the shares in question because ownership of the stock was disputed; appellant Charles M. Bettis had directed the Bank of Trumann to issue the stock certificates in the name of his son, appellee C. Welton Bettis, but C. Welton Bettis did not have possession of the stock certificates issued in his name. Consequently, the Bank of Trumann filed an interpleader action naming appellant and appellee as defendants and requesting that it be allowed to deposit the funds into the registry of the court and be discharged from liability. After a hearing, the trial court found that appellee had presented sufficient evidence to shift the burden to appellant to show that he did not intend to make an inter vivos gift of the stock and that appellant had failed to do so. On appeal, appellant argues that the trial court erred in applying Arkansas law rather than Georgia law, and in finding that appellant made a completed gift of the stock to appellee. We find no error, and we affirm.
Appellant argues that Georgia law should have been applied in determining ownership of the stock. He argues that we should determine which state’s law should apply based on application of the five choice-influencing factors presented by Dr. Robert A. Leflar and adopted by the Arkansas Supreme Court in Wallis v. Mrs. Smith’s Pie Co., 261 Ark. 622, 550 S.W.2d 453 (1977). We need not do so in the present case because our examination of the law leads us to the conclusion that the laws of Arkansas and Georgia applicable to this case are substantially the same. Dr. Leflar considered this situation to be one involving “false conflicts,” explaining that:
The concept is properly applicable to any case in which the laws of two involved states are the same, or would produce the same result. In that situation there is no conflict between the two states’ laws, and no conflicts oflaws problem. It is not necessary to choose between the laws of the two states. The case is easily resolved by applying to it the rule of law which is common to both states. There are strange old cases in which courts, not recognizing that this is a “false conflicts” situation, went through the gymnastics of deciding which state’s law should govern, then wound up with the odd conclusion that neither state’s law should govern. Theirs was an easy problem, but they made it a hard one. They did not recognize that the problem was one of conflict of laws, not one of conflict of states.
R. Leflar, Conflict of Laws: Arkansas — The Choice-Influencing Considerations, 28 Ark. L. Rev. 199, 204-05 (1974) (emphasis in original) (footnotes omitted).
There is no dispute about the relevant facts. Appellant directed the Bank of Trumann to issue stock in the name of his son, the appellee. The stock certificates were delivered to appellant’s offices, where appellee was employed, and were kept there in a safe. After several years had passed, there appears to have been a falling out between the parties; appellee was no longer employed by appellant. The dividends were sent to appellee at a different address, and he reported the dividend income as taxable income on his returns. Appellant retained possession of the stock certificates.
In Plant v. Plant, 271 Ark. 369, 609 S.W.2d 93 (Ark. App. 1980), an early case of the Arkansas Court of Appeals involving a gift of stock, Judge Hays summarized the applicable law as follows:
We find that the case law dealing with gifts of stock reflects a solemn emphasis on the formal execution of documents which are the subject of a gift, especially when followed by delivery of the certificate itself. Such transfer of all the indicia of ownership, i.e., both the formal tide and the manual possession of the certificate itself, should not be readily disregarded. In Johnson v. Johnson, 115 Ark. 416, 171 S.W. 475 (1914), in considering a gift of stock, the Supreme Court stated that since the stock was transferred on the records of the company and appeared in the name of the donee, the burden was on the appellant to prove that the stock was not the property of the donee.
Similarly, in Owens v. Sun Oil Company, 482 F.2d 564 (C.C.A. - 10th Circuit), applying the substantive law of Arkansas, it was held that where the donor directed a transfer of ownership of corporate stock for the purposes of a gift to a donee who died before completion of delivery, the fact that the donee’s name was on the certificate was prima facie evidence of his ownership.
In Aycock v. Bottoms, 201 Ark. 104, 144 S.W.2d 43 (1940), an attempt was made to subject various assets, including stock, to a trust for the benefit of heirs of a decedent, the shares being held in the name of the widow. The court rejected the argument that delivery of the stock was not proven, essential to a gift, stating that the assignment to a donee by a holder is tantamount to delivery of the stock, though manual delivery may be wanting.
Plant, 271 Ark. at 374-75, 609 S.W.2d at 96-97. Despite appellant’s arguments to the contrary, the law of Georgia is fundamentally identical. Physical delivery of the stock certificates is not an essential element of an inter vivos gift of stock under Georgia law where the stock is transferred on the corporate books to a son who thereafter received the income therefrom. Foley v. Allen, 170 F.2d 434 (5th Cir. 1948). Furthermore, a rebuttable presumption of gift arises under Georgia law where a parent pays the consideration for the transfer of legal title to real or personal property to a child. Ga. Code Ann. § 53-12-92(c) (1997).
Based on the undisputed evidence that appellant directed that the stock be transferred to appellee’s name on the corporate books and appellee enjoyed the benefits of ownership for many years, the trial court found that appellee had presented sufficient evidence to shift the burden to appellant to show that he did not intend to make an inter vivos gift of the stock, and that appellant had failed to do so. The remaining question on appeal is whether the trial court erred in so finding. Where, as here, 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. Brown v. Blake, 86 Ark. App. 107, 161 S.W.3d 298 (2004). In making this determination we recognize the trial judge’s superior opportunity to determine the credibility of the witnesses and the weight to be given to their testimony. Id. 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. McCarley v. Smith, 81 Ark. App. 438, 105 S.W.3d 387 (2003). On this record, giving due recognition to the trial court’s superior opportunity to determine weight and credibility, and considering that the same strict degree of proof as to delivery that a gift was intended is not required between members of a family as is required where the gift is to a stranger, Aycock v. Bottoms, 201 Ark. 104, 144 S.W.2d 43 (1940), we cannot say that the trial court clearly erred in finding that appellant failed to rebut the presumption.
Affirmed.
Gladwin and Glover, JJ., agree.
These are: (1) predictability of results; (2) maintenance of interstate and international order; (3) simplification of the judicial task; (4) advancement of the forum’s governmental interests; and (5) application of the better rule of law. Wallis v. Mrs. Smith’s Pie Co., supra. | [
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Sam Bird, Judge.
Appellant Scott Randall Ross was convicted by a jury of first-degree murder and using a firearm during the commission of a felony. He was sentenced to consecutive terms of forty and fifteen years in the Arkansas Department of Correction. Ross raises four points on appeal: (1) that the trial court erred in declining to instruct the jury regarding his proffered jury instruction concerning mental state; (2) that the trial court erred in permitting his prior bad acts to be admitted into evidence; (3) that the trial court erred in ruling that communications between Ross and his pastor were not privileged under Ark. R. Evid. 505; and (4) that the trial court erred in permitting marital communications to be admitted into evidence in violation of Ark. R. Evid. 504. We affirm.
On February 23, 2004, Ross was charged with the first-degree murder of Inocencio Cruz. According to the felony information, Ross was subject to an additional term of imprisonment for employing a firearm in the commission of a felony offense.
Prior to trial, Ross filed a motion to invoke religious privilege under Ark. R. Evid. 505 based on statements made to his friend Steve Long, who, like Ross, was an ordained minister. The trial court denied this motion after a hearing on the matter. Ross also filed a motion to invoke the husband-wife privilege pursuant to Ark. R. Evid. 504. Although the trial court concluded that certain communications between Ross and his wife were confidential, it ruled that the confidentiality did not include Ross’s act of handing a gun and a knife over to his wife on the night that Cruz was killed.
Ross made other motions prior to trial, including a motion in limine to prevent the State from asking witness Craig Adams about a cut on Ross’s finger. The court granted this motion. Ross also moved to exclude evidence that he had previously carried a gun into a local bar. The court granted this motion as well, excluding any reference to guns aside from “those that have a causal relationship with this incident.”
The evidence at trial revealed that, on the evening ofjanuary 17, 2004, a red sport- utility vehicle (SUV) rear-ended a vehicle being driven by Ross at the corner of Summer and Hobson in Hot Springs. According to witnesses, Ross became agitated after the accident and shot the driver of the red SUV.
Over objection from Ross, Ross’s friend and fellow minister Steve Long testified that he was a discjockey at Lucky’s Bar in Hot Springs, and he saw Ross at Lucky’s around 6:00 p.m. on January 17, 2004. According to Long, Ross appeared to have a cut on his finger. Long said that Ross left Lucky’s around 9:30 p.m. and returned around thirty to forty minutes later. At that time, Ross told Long that “there was an accident and a gentleman had smashed the back of [Ross’s] car and ... he had shot him.” Long said Ross mentioned that he had shot the man five times and that the man might have been the “Antichrist.”
Ross testified extensively about what happened on the night in question, explaining that he was drinking with friends at Lucky’s and later obtained a gun at his mother’s pawn shop with the intention of committing suicide. After he left the pawn shop, his vehicle was rear-ended by another vehicle. He said he remembered getting out of his car and talking to the other driver, but he did not remember exactly what happened. He claimed that he returned to Lucky’s to talk to Long in “confidence,” and he admitted that he told Long that he had killed a “Hispanic man or a Mexican.”
Ross said that he then called his wife and she came to pick him up. He said that he admitted to her that he had killed a “Mexican fella” and had shot him five times. Ross said that his wife dropped him off at a gas station and that he ended up at her house later in the evening. At that point, she asked him for the gun in his possession and for his pocket knife, because she knew that he always carried a pocket knife. Ross said that he gave these items to her. Ross was later arrested.
Following Ross’s testimony at trial, the State cross-examined him about whether he had ever carried a gun into Lucky’s before the night of the shooting. Ross objected, but his objection was overruled after the State argued that it was proper cross-examination based on Ross’s testimony concerning his possession of a gun. The State also cross-examined Ross about what he had said to his wife after the shooting. Ross objected based on the court’s earlier determination that these communications were confidential, but the State argued that the privilege had been waived by Ross’s testimony. The court overruled Ross’s objection.
Two of Ross’s witnesses, Kim Ocker and Jay Schapiro, testified that Ross was not a violent individual. The State then provided a rebuttal witness, Craig Adams, who testified that, shortly before the murder, Ross cut his finger in a confrontation with some people and had slashed their tires.
The jury was instructed that the State had the burden of proof beyond a reasonable doubt on every element of every charge that it considered; the jury was also instructed on first-degree murder, second-degree murder, and manslaughter. The jury returned a verdict of guilty on the first-degree murder charge and also found that Ross employed a firearm as a means of committing the murder. On September 23, 2005, the trial court entered a judgment and commitment order convicting Ross of first-degree murder with a felony-firearm-sentence enhancement. He was sentenced to consecutive terms of forty and fifteen years in the Arkansas Department of Correction.
Jury Instruction on Mental State
On appeal, Ross first contends that the trial court erred in refusing to instruct the jury concerning his proffered jury instruction on mental state. At the close of the State’s case, Ross submitted the following instruction, which is a modified version of AMI Crim. 610:
EVIDENCE THAT SCOTT ROSS SUFFERED FROM A MENTAL DISEASE OR DEFECT MAY STILL BE CONSIDERED BY YOU IN DETERMINING WHETHER SCOTT ROSS HAD THE REQUIRED MENTAL STATE TO COMMIT THE OFFENSE CHARGED OR MURDER IN THE SECOND DEGREE AND MANSLAUGHTER.
Our supreme court has held that a trial court should not use a non-model instruction unless there is a finding that the model instruction does not accurately reflect the law. Calloway v. State, 330 Ark. 143, 953 S.W.2d 571 (1997). Here, Ross claims that the proffered instruction essentially tracks Ark. Code Ann. § 5-2-303, which generally provides that evidence that a defendant suffered from a mental disease or defect is admissible to prove whether he had the kind of culpable mental state required for commission of the offense charged.
Ross argues that the court should have allowed the modified instruction because “in the context of this case, it was important for the jury to know, even though [Ross] was not asserting mental disease or defect as an affirmative defense to any crime, that [they] could consider evidence of mental disease or defect in determining whether [Ross] had the requisite mental state necessary for the lesser-included offenses.” He asserts that, based on the evidence, there was a jury question as to whether his mental state was diminished by mental disease or defect so that, while not constituting an affirmative defense, it could have shown that his mental state was less than that required for a first-degree murder conviction. He also claims that if the jury had been properly instructed in this case, then they could have convicted him of murder in the second degree or manslaughter.
In Robinson v. State, 269 Ark. 90, 95, 598 S.W.2d 421, 425 (1980), our supreme court rejected a similar argument, stating as follows:
Appellant also contends that he was entitled to a specific instruction informing the jury that he had placed in issue his mental capacity to form the kind of mental state necessary to establish the commission of the alleged offense. Appellant grounds his contention on Ark. Stat.Ann. § 41-602 (Repl. 1977) [now codified as Ark. Code Ann. § 5-2-303] which permits the introduction of evidence of mental disease or defect to determine whether the defendant possessed the kind of culpable mental state required for the commission of the crime charged. However, we do not construe Ark. Stat.Ann. § 41-602 (Repl. 1977) as requiring an instruction of this nature. The statute simply clarifies any issue concerning the admissibility of mental disease evidence when it is less than persuasive in connection with an affirmative defense of insanity. Moreover, the essence of appellant’s proffered instruction is effectively given when the court instructs the jury on the burden of the state to prove beyond a reasonable doubt each element of the offense, especially when such instruction is accompanied by an instruction on lesser included offenses.
In this case, as the State points out, the jury was instructed that the State had the burden of proof beyond a reasonable doubt on every element of every charge that it considered. The jury was also instructed on first-degree murder, second-degree murder, and manslaughter. In light of Robinson, supra, we reject Ross’s argument and affirm on this point.
Prior Bad Acts
Ross next contends that the trial court erred in permitting certain prior bad acts to be admitted into evidence. Specifically, he argues that “evidence of possessing firearms prior to and after the night in question and evidence that he was involved in a confrontation resulting in a cut to his finger was offered to prove that he was of bad character and it was not independently relevant to the case.” Ross claims that this evidence was introduced in order to make him “look bad in front of the jury” and, thus, should not have been admitted.
Trial courts have broad discretion in deciding evidentiary issues, and their decisions are not reversed absent an abuse of discretion. Shields v. State, 357 Ark. 283, 166 S.W.3d 28 (2004). In Cook v. State, 345 Ark. 264, 270, 45 S.W.3d 820, 823-24 (2001), our supreme court discussed Ark. R. Evid. 404(b), as follows:
Arkansas Rule of Evidence 404(b) states:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence offered under Rule 404(b) must be independently relevant, thus having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). The list of exceptions to inadmissibility in Rule 404(b) is not an exclusive list, but instead, it is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. Williams v. State, 343 Ark. 591, 602, 36 S.W.3d 324, 331 (2001).
In Spohn v. State, 310 Ark. 500, 503, 837 S.W.2d 873, 874-75 (1992), our supreme court further discussed Rule 404(b):
It is true as a general rule that proof of other crimes or bad acts is never admitted when its only relevancy is to show that the accused is a person of bad character. Ark. R. Evid. 404(b); see also Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971); Alford v, State, 223 Ark. 330, 266 S.W.2d 804 (1954). However, in McCormack on Evidence, the following statement of the law is made relative to character testimony:
Ordinarily, if the defendant chooses to inject his character into the trial in this sense, he does so by producing witnesses who testify to his good character. By relating a personal history supportive of good character, however, the defendant -may achieve the same result. Whatever the method, once the defendant gives evidence of pertinent character traits to show that he is not guilty, his claim of possession of these traits-but only these traits-is open to rebuttal by cross-examination or direct testimony of prosecution witnesses.
McCormack, Vol. I, § 190, p. 816 (1992).
Here, Ross’s testimony that his wife requested the gun that he possessed and the pocket knife that he “always” carried opened the door to cross-examination by the State regarding whether he habitually possessed a weapon. Furthermore, Ross’s testimony concerning his lack of intent to commit a violent act, together with the testimony by two of Ross’s witnesses that he was not a violent person, invited inquiry into whether Ross cut his finger during an angry outburst shortly before the murder during which he slashed a vehicle’s tire and injured himself. We affirm on this point.
Rule 505 privilege
As his third point, Ross contends that the trial court erred in ruling that communications between him and his pastor were not privileged under Ark. R. Evid. 505. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor. Ark. R. Evid. 505(b); Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992). In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Bonds, supra.
Here, Ross’s friend Steve Long, an ordained minister, testified that Ross was at Lucky’s Bar around 6:00 p.m. on the evening of the shooting. Long said that Ross left around 9:30 p.m., then returned thirty to forty minutes later and told Long that “there was an accident and a gentleman had smashed the back of his car and that [Ross] had shot him.” Long said that Ross mentioned that the man he had shot might be the “Antichrist.”
It is the State’s position that Long was not acting in the role of a spiritual counselor when Ross communicated with him, but was instead acting as a friend at a bar. In Bonds, supra, our supreme court addressed the issue of whether certain communications between a defendant and a witness — who was defendant’s employer, brother-in-law, and friend — were subject to the religious privilege under Ark. R. Evid. 505. The court in Bonds found that there was no evidence of ongoing counseling between the witness and the defendant that the witness had agreed to keep confidential and concluded that the communications were not made to the witness in his capacity as a spiritual advisor. Id. Similarly, here, although Long was an ordained minister, he was also Ross’s friend, and there was no evidence that Ross had communicated to Long with the expectation that Long would keep the communication confidential. We therefore hold that the trial court’s decision concerning Ark. R. Evid. 505 was not clearly against the preponderance of the evidence.
Ross additionally argues that the admission of his communication to Long led to his (Ross’s) testifying at trial; however, he offers no supporting authority as to why this would require reversal. We therefore will not address this argument on appeal. See Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 833 (2006) (refusing to consider appellant’s argument where appellant offered no convincing argument or convincing authority to support his claim). Moreover, any error in admitting the testimony was harmless, because Ross himself testified about what he said to Long. We therefore affirm on this point.
Rule 504 privilege
Ross’s final point is that the trial court erred in permitting marital communications to be admitted into evidence in contravention of Ark. R. Evid. 504. Specifically, Ross claims that the State should not have been permitted to cross-examine him about a statement to his wife on the night of the shooting that he was “going to take money from a Mexican,” because he did not specifically testify to this.
Rule 504(b) states that an accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse. However, as the State points out, Ark. R. Evid. 510 states that a person waives this privilege if he “voluntarily discloses or consents to disclosure of any significant part of the privileged matter.” At trial, Ross testified extensively about what he said to his wife on the night of the shooting. This was clearly a voluntary disclosure of a “significant part of the privileged matter” under Rule 504. We therefore agree with the State that Ross’s testimony constituted a waiver of the Rule 504 privilege in this case. Furthermore, Ross could not use the trial court’s initial ruling to exclude the marital communications as a means to commit perjury by way of a defense. The State was certainly entitled to cross-examine Ross as to his version of what he disclosed to his wife on the night of the shooting. See Rooks v. State, 250 Ark. 561, 466 S.W.2d 478 (1971) (holding that it was permissible for the State to test the credibility of appellant’s trial testimony by cross-examination). We therefore affirm on this point.
As for Ross’s argument that the trial court erred in ruling that his handing of the gun and knife to his wife was not protected by the Rule 504 privilege, we hold that Ross has failed to demonstrate any prejudice as a result of this. There was other overwhelming evidence of Ross’s guilt in this case, including eyewitness testimony that Ross committed the murder and evidence that Ross admitted to both his wife and his friend Steve Long that he committed the murder. Because we cannot see how Ross was prejudiced by the trial court’s decision on this matter, we will not reverse. See Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000) (recognizing that no prejudice results where the evidence erroneously admitted was merely cumulative, and an appellate court will not reverse for harmless error in the admission of evidence).
For these reasons, we affirm.
Gladwin and Roaf, JJ., agree.
The court’s specific ruling was that Ross was entitled to the Rule 504 privilege for “whatever communication was made” by Ross to his wife “during [a] van ride” on the night of the incident in question.
According to Ross’s brief on appeal, Ms. Ross had filed for divorce, but the matter was still pending.
According to testimony, Long obtained an honorary degree from the Universal Life Church via the Internet in March 2003. | [
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Josephine Linker Hart, Judge.
Jamie Long appeals from an order of the Pulaski County Circuit Court terminating her parental rights to her daughter K.L. and son M.S. On appeal, she argues that the trial court erred in finding sufficient evidence to terminate her parental rights. We reverse and remand.
On February 27, 2003, Arkansas Department of Human Services (DHS) took Long’s children into custody after she was arrested on drug charges relating to her use of methamphetamine. At the time, K.L., and M.S., were five and two years old, respectively. On April 25, 2003, the children were adjudicated dependent-neglected.
Initially, Long was not compliant with the requirements of the case plan. At the first review hearing, the trial court found that Long had not complied with its orders and the case plan services in that she had not submitted to the court-ordered psychological evaluation, failed to complete parenting classes, no longer attended NA/AA meetings at Celebrate Recovery, arrived late for visitation with her children and, contrary to the direction of DHS, brought people to the visits. The trial court did note, however, that Long did have a drug- and-alcohol assessment, “some visitation,” and “some random drug screens.” At an October 30, 2003, review hearing, the trial court found that Long still had not completed parenting classes and had not visited the children since September 8, 2003. The trial court ordered Long to continue to submit to random drug screens, visit the children “regularly,” and “continue intensive outpatient substance abuse treatment.” It also imposed a requirement that Long “have a stable home and employment and demonstrate that she can properly provide for her kids.”
In its February 26, 2004, permanency-planning order, the trial court found that Long had complied with the court orders and case plan, and it continued to order reunification services. Additionally, the court awarded Long weekend visitation.
On March 19, 2004, the trial court entered an emergency ex parte order modifying the visitation to twice weekly at the DHS offices. The visitation was changed on March 16, 2004, after the foster mother, Mrs. Cherry, informed DHS that the children had not been returned on time from the weekend visit. This order remained in place even though Long informed DHS that the late return was caused by her hospitalization due to complications with her pregnancy.
At the next permanency-planning hearing, held on May 20, 2004, the trial court rejected DHS’s recommendation that reunification remain the goal and sua sponte ordered a termination hearing. In that order, the trial judge stated: “I understand she’s pregnant. I am concerned about the fact that she’s pregnant and having some problems. I’m not unsympathetic to that, but mom does not seem to have understood the priorities that she should have on this case.” She further noted that Long had not provided the drug treatment sign-in sheets that she had been directed to submit. Nonetheless, the trial judge ordered reunification services to continue.
At the September 15, 2004, termination hearing, Dr. Paul Deyoub, a psychologist, testified that he administered a psychological evaluation to Long. He stated that Long admitted to using methamphetamine “four or five times,” marijuana, “some alcohol,” and pain medication. Long told him that she was currently living with a man from Mexico named Mario, whom she planned to marry when her DHS case was over. He noted that she had Mario’s name tattooed on both sides of her neck, but he opined that it was consistent with her personality in that it reflected impulsiveness and poor decision making. Dr. Deyoub further opined that Long’s involvement with Mario also reflected poor judgment in that he was a “big priority for her.” According to Dr. Deyoub, Long’s testing revealed some degree of personality disorders, with traits of Borderline, Histrionic, and Dependent disorders indicated. Long’s I.Q. was 88. He noted that Long had an unstable life, having been abandoned by her parents to a group home for six years “for no apparent reason” after her parents divorced. Later, Long tried to live with her mother when she was fifteen, received in-patient treatment at Rivendell and Turning Point, and had, since age seventeen, tried to make “it as best she can with relationships” that failed but had produced two children. He opined that her prognosis for reunification was “very guarded and poor . . . although not impossible.” Dr. Deyoub noted a trend of past dependence on males in relationships and stated that “Mario is an unknown. I have no idea what this individual is all about. So that’s just one more factor that I don’t know about, but that the Court has to see who is this person.”
Jan Kucala, a licensed counselor, certified play therapist, and program manager for the Centers for Youth and Families in Jacksonville testified that she counseled K.L., beginning on January 13, 2004. She stated that the child had “a lot of anxiety and worry about family matters and concern about what was going to happen to her, what was happening to her mother.” Ms. Kucala stated that Long had made progress, that she was much more aware of K.L.’s feelings, that she was “very open” about mistakes that she had made, and that she showed “a lot of insight” into how her separation from her children has damaged her relationship with them and what she would need to do to repair that relationship. Ms. Kucala noted as well that, at times, there was confusion as to who K.L.’s case worker was and noted that there were several appointments for which DHS had failed to bring the child. She reported that being out of the home was “very stressful” on K.L., that K.L. felt “punished” because she was in foster care, and that there was a “very strong bond” between K.L. and her mother.
Further, Ms. Kucala opined that if Long’s rights were terminated, “regression will probably occur on [K.L.’s] part,” and while she declined to offer an opinion regarding termination because her agency did not encourage them to make this type of judgment, she did state that she thought that “the family had been making progress,” and K.L. had not been prepared “in any way” for termination of her mother’s parental rights. Regarding Mario, Ms. Kucala stated that his involvement had been limited, but she was aware that Long and Mario had an agreement that Long would be able to stay home with the children while Mario supported the family, and Mario affirmed that commitment. Nonetheless, she stated that she did not think that it would be prudent to put the children “totally in their mom’s home today,” but noted that the “kids are very bonded to her” and she did not believe that the reunification process “would be a long-term thing.” She recommended that the trial court order unsupervised visitation.
Long testified that she currently lived in a one-bedroom apartment, but she had signed a transfer with the management company and paid fees to allow her to move into a larger apartment that would accommodate the return of her children. She stated that Mario’s take-home pay was four to five hundred dollars per week. She admitted to testing positive for opiates the previous August, but attributed it to the Tylenol 3 that she had been prescribed. She admitted that she moved to Georgia for three or four months in 2003, but when she found that transferring her case there would be a “long process,” she returned to Arkansas. She stated that she moved there because Mario was able to make more money. Nonetheless, while she was away, she claimed that she called her children regularly.
Regarding her substance-abuse problems, Long claimed that she was not “addicted in any way to any controlled substance” when she had her assessment because she had just been in jail for two-and-a-half months. Since getting out, she went to Celebrate Recovery for drug meetings, AA meetings every day for a month “to keep busy doing things on the positive level,” and UAMS Adult Psychiatry for individual counseling. She also claimed to have attended Narcotics Anonymous at Saline Memorial Hospital. Long admitted that she was slow to provide the documentation of her attendance at the various therapy sessions, but claimed that no one told her that her documentation was inadequate. Long noted that she had been assigned to take five drug screens since May of that year, and while she missed one, all except the August 9, 2004, screening when she was taking Tylenol 3 as prescribed, had been negative.
Long noted that the caseworkers had changed quite a bit during the pendency of her case. She recalled that Angela Haynes, Carolyn Williams, Bonnie Twillie, and Tamika Floyd had all been assigned her case at various times, and she stated that confusion as to who was handling the case had affected her visitation. She recounted having difficulty finding out who her caseworker was at several key times.
Long stated that she had a long-term relationship with Mario Cirilo and that they planned to marry once she got her kids back home. She claimed that she was working very hard to get her children back. Nonetheless, she admitted that Mario was “a priority,” and she disputed that it was bad judgment to try to have a baby while her children were in DHS custody. Long stated that the reason she had failed to get her children back to the foster-parent’s home on time after her last weekend visit was that she was hospitalized. She claimed that she provided DHS caseworker Carolyn Williams with “some proof’ she had been in the hospital, but admitted it was “the wrong one.” Long also conceded that she had not provided documentation to DHS proving that she had been employed at McDonald’s.
Tamika Floyd, one of the four caseworkers that had worked with Long’s children, testified that Long was aware of the requirement that she receive drug treatment and that she provide proof that she was getting drug treatment; that she submit to random drug testing showing that she was “clean”; that she maintain steady employment and stable housing; and that she attend NA meetings and provide DHS with the proof of attendance. Floyd stated that Long tested positive in August for opiates and positive for pro-poxyphene on May 18. Floyd stated that Long also missed one drug screen, claiming “she forgot.” Floyd claimed that she “never saw any proof [Long] completed drug treatment.” Floyd admitted that Long gave her sign-in sheets for NA meetings in August, July, and May, and told her that the sign-in sheets for June were at her sister’s house. However, Floyd claimed that she was only able to “confirm” attendance at two meetings in July and that she had no proof that Long attended individual counseling. Floyd further admitted that she received a letter from Long’s father verifying that he paid Long to take care of her grandmother, but never received “pay stubs.”
Floyd stated that Long “began to comply” with the case plan requirements, but noted that some elements still needed work, including the requirement that she maintain a stable home environment- — -Floyd stated Long’s one-bedroom apartment was not large enough to accommodate her children. She further stated that the NA sign-in sheets are “somewhat questionable.” Regarding the services that DHS provided to Long, Floyd listed “a drug and alcohol assessment, counseling services with [K.L.], psychological assessment, and random drug screens.” She also claimed that transportation services were “offered” along with visitation with the children, “services” for M.S. at Pediatric Specialty Care, foster care, and medical and dental services. Floyd stated that she believed that Long knew her case worker, but admitted that there was considerable shuffling of the case among several workers in the office. Regarding individual counseling, Floyd stated that Long had told a previous case worker, Williams, that Long was receiving counseling at UAMS and “there’s no notation that the counseling was deficient and more counseling was needed.” Floyd also stated that she visited Long’s current one-bedroom apartment, and she saw that there was “food in the refrigerator, the lights were on, and it was clean,” and “fully furnished.”
In its termination order, the trial judge found that “there is a potential that these juveniles would be harmed by continuing contact with the mother.” It further noted that there was “great potential for emotional harm to these juveniles if they had continued contact with a mother who has not placed them first and foremost in her priorities so that she can be there for them all day, every day, and provide for all their needs.” Additionally, the trial judge found that Long “has not demonstrated that she can remain drug free, have stability in housing and employment, and make appropriate decisions that do not negatively affect [the children’s] well being.” She noted deficiencies in the documentation that Long was ordered to provide.
On appeal, Long argues that the trial court erred in finding that there was sufficient evidence to terminate her parental rights. She contends that she “substantially complied” with the orders of the trial court and corrected the problems that caused the removal of her children. Long notes that she was ordered to submit to ten drug screens, and she never tested positive for methamphetamine, the use of which caused her children to be taken into custody. She further notes that she completed parenting classes, attended visitation, participated in a psychological evaluation, completed a drug and alcohol assessment, attended outpatient drug counseling at Celebrate Recovery, attended individual counseling at UAMS, and obtained a place to live and an adequate means of support. Long asserts that she met the three objectives required of her at the permanency-planning hearing: visit her children, continue in therapy with her daughter, and attend AA or NA meetings once a week and provide documentation of those meetings to the caseworker.
The grounds for termination of parental rights must be proven by clear and convincing evidence. M. T. v. Arkansas Dep’t of Human Servs., 58 Ark. App. 302, 305, 952 S.W.2d 177, 179 (1997). 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 Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). This court reviews termination of parental rights cases de novo. Id.
It is clear that Long substantially complied with the requirements imposed upon her by the court. As the trial judge recites in her order, Long was required to do “three main things: attend AA or NA meetings once per week and provide documentation to the caseworker every month; make her priority to visit the juveniles without fail; and continue in therapy with [K.L.] so that she could learn how to help [K.L.] alleviate her anxiety and better parent [K.L.] with her issues.” With the exception of providing documentation, Long fulfilled all of these requirements. Given the extraordinary progress Long has made in fulfilling the requirements of the court, the overwhelming evidence of the very strong bond between mother and children, and the testimony from K.L.’s therapist that the child would “regress,” we hold that the trial court was clearly erroneous in finding that Long’s continued contact with her children would be detrimental. Accordingly, the best interest of the children dictates that we reverse the termination of Long’s parental rights and reinstate reunification services with a goal of returning the children to Long’s custody.
Reversed and remanded.
Roaf, Vaught, and Gladwin, JJ., agree.
Crabtree and Glover, JJ., dissent. | [
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Andre Layton Roaf, Judge.
This is an appeal from a circuit court’s order to remove appellee J.N.’s name from the Arkansas Child Maltreatment Central Registry (central registry). Appellant Arkansas Department of Human Services (DHS) argues on appeal that the trial court erred when it ordered DHS to remove J.N.’s name from the central registry, and that the trial court erred when it remanded this case for an in-person administrative hearing. We affirm.
There were allegations of child maltreatment against J.N., a minor, and, after an investigation into the matter by DHS, it found the allegations to be true. After a hearing, an administrative law judge (ALJ) ordered J.N.’s name to be placed on the central registry. J.N. initially contested the placement of his name on the central registry, and he requested an administrative hearing pursuant to Ark. Code Ann. § 25-15-213(1) (Repl. 2002), which states that every party shall have the right to appear in person or by counsel. J.N.’s hearing was conducted by telephone conference in which the parties, counsel, and witnesses appeared at the DHS offices in Fayetteville while the ALJ listened over the telephone from Little Rock. At the hearing, J.N. objected to the format of the hearing, arguing that it was not an “in-person” hearing pursuant to Ark. Code Ann. § 25-12-213(1). The ALJ found that the telephone hearing was adequate. J.N. appealed this ruling to the Washington County Circuit Court.
A hearing was held at the circuit court on May 12, 2005. Among those present at the hearing were two attorneys for DHS, Nancy Shray and supervising attorney Michael Chase. The circuit court ruled that a hearing by telephone conference was not an “in-person” hearing within the meaning of Ark. Code Ann. § 25-15-213(1), and it remanded the case for a “hearing to be conducted de novo, in person. ...” The trial court stated that the hearing “shall be scheduled at [DHS’s] earliest possible convenience.” The trial court’s order was entered on June 15, 2005, after it was approved as to form and signed by Nancy Shray. On July 25, 2005, a copy of the order was faxed to Shray by the Washington County Circuit Clerk.
One hundred eighty-one days after the trial court’s order was entered, J.N. filed a motion to remove his name from the central registry pursuant to Ark. Code Ann. § 12-12-512 (c)(2) (Repl. 2003), which provides that “the Administrative Hearing process must be completed within one hundred-eighty (180) days from the receipt of the request for hearing, or the Petitioner’s name shall be removed from the Central Registry.” DHS filed a response, arguing that it was not the responsibility of the DHS Office of Chief Counsel to communicate the order to the DHS Office of Appeals and Hearings.
The trial court entered an order on February 1, 2006, directing DHS to remove J.N.’s name from the central registry because DHS failed to provide a timely hearing. The trial court found that DHS attorney Nancy Shray had notice of the order of remand and that DHS did not comply with the order in a timely manner. DHS now appeals the trial court’s order to remove J.N.’s name from the central registry.
For its first point on appeal, DHS argues that the trial court erred when it ordered DHS to remove J.N.’s name from the central registry. DHS asserts that DHS complied with Ark. Code Ann. § 12-12-512(c)(2) (Repl. 2003) because the first or original hearing in this case was completed within the 180 days. DHS further asserts that J.N. failed to inform the ALJ of the trial court’s earlier remand order and that it was J.N.’s responsibility to request a new hearing after the remand order was issued. DHS did not include in its abstract the hearing held on May 12, 2005, which resulted in the remand order being issued in this case. An abstract of this hearing is “necessary to an understanding of all questions presented to [this court] for a decision.” See Ark. Sup. Ct. R. 4-2(a)(5). Nevertheless, we will reach the merits of this appeal because J.N. cured the deficiency by including the hearing in the supplemental abstact.
Arkansas Code Annotated section 12-12-512(c)(2) states that the administrative hearing process must be completed within 180 days from the date of the receipt of the request for a hearing or the petitioner’s name shall be removed from the Central Registry, provided that the delays in completing the hearing that are attributable to the petitioner shall not count against the 180-day limit. Here, there was a hearing that was held within 180 days of J.N.’s original request for a hearing. On appeal, however, the case was remanded back to the ALJ to conduct an in-person hearing, and this in-person hearing was not held within 180 days of the remand order. DHS argues that it was J.N.’s responsibility to request a new hearing in a timely manner, which he did not do, and therefore the delay in completing the hearing was attributable to J.N. and should not count against the 180-day limit.
The situation in the present case is unique and there is no analogous case law. When the circuit court remanded the case back to the ALJ for an in-person hearing, the posture of this case was as if there had been no first hearing before the ALJ. DHS, therefore, should have scheduled another hearing and notified J.N. of this hearing. DHS should have treated this situation as if there had been no first hearing before the ALJ. DHS did not do this, however, and now places the blame on J.N. for DHS’s failure to have a hearing within the 180-day period.
DHS provides no authority for its assertion that it was J.N.’s responsibility to provide the Office of Appeals and Hearings with the circuit court’s remand order. Arkansas Code Annotated section 12-12-512 does not place the burden on the petitioner to schedule hearings. The only time that petitioner has a duty to report a disposition of a case is when the petitioner is involved in an ongoing criminal or delinquency investigation that relates to the child maltreatment report. Ark. Code Ann. § 12-12-512(c)(2)(B). In this situation, the petitioner must report the final disposition of the criminal or delinquency proceeding to DHS. Id. Thus, J.N. had no duty to report the remand order to DHS.
DHS argues that J.N. should have requested another hearing after the case was remanded. This argument makes no sense, because J.N. initially requested a hearing and one of the arguments before the circuit court was whether J.N. was entitled to an in-person hearing. The circuit court remanded the case so that J.N. could have an in-person hearing. Thus, J.N. should not have to again request a hearing that has already been ordered.
The circuit court remanded the case for an in-person hearing to be scheduled “at the respondent’s [DHS] earliest possible convenience.” DHS had the responsibility of scheduling the hearing. It did not schedule the hearing within 180 days of the receipt of the request for a hearing, which in the present case was the remand order, and so the circuit court did not err when it ordered that J.N.’s name should be removed from the central registry.
For its second point on appeal, DHS argues that the trial court erred when it remanded this case for an in-person administrative hearing. J.N. argues that this argument is not preserved because DHS failed to appeal from the remand order entered on June 15, 2005. Under Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure - Civil, this court is limited to a review of a final judgment, decree or order. An order is final if it dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Daniel v. State, 64 Ark. App. 98, 983 S.W.2d 146 (1998). The order must put the judge’s directive into execution, ending the litigation, or a separable branch of it. Id. When an order provides for a subsequent hearing, that provision prevents the order from being a final order. Id. Thus, J.N.’s assertion that DHS should have appealed from the remand order is incorrect, because the remand order was not a final order for purposes of an appeal. Moreover, Arkansas Rule of Appellate Procedure - Civil 2(b) states that an “appeal from any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” Thus, DHS’s argument regarding the trial court’s remand for an in-person administrative hearing is preserved for this court’s review.
DHS asserts that J.N.’s request for an in-person hearing was untimely because he did not make his request until the administrative hearing had begun. DHS cites no authority for this asser tion. Moreover, J.N.’s counsel stated at that hearing that he had made the same request for an in-person hearing in previous hearings.
Arkansas Code Annotated section 12-12-512(c)(l)(C)(ii) states that a person named as the offender of the true report may request an administrative hearing. Arkansas Code Annotated section 25-15-213 states that every party compelled to appear before an agency or representative of an agency shall have the right to appear in person or by counsel. Neither statute specifically prohibits telephone hearings, but Ark. Code Ann. § 25-15-213 suggests that one is entitled to a hearing in person, with “in person” meaning that the petitioner, respondent, witnesses, and the hearing officer are in one location. Thus, J.N. was entitled to an in-person hearing before the hearing officer, and the trial court did not err by so holding.
Affirmed.
Griffen and Vaught, JJ., agree.
Arkansas Code Annotated section 12-12-512(c)(l)(C) was amended in 2005 to specifically allow for a hearing by video teleconference in lieu of an in-person hearing and to allow for telephone hearings when neither party requests an in-person hearing. Ark. Code Ann. § 12-12-512(c)(l)(C)(v) (Supp.2005). | [
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John B. Robbins, Judge.
On November 13, 1990, appellant Christine M. Jones and appellee Dr. Jerry A. Jones were divorced. The divorce decree incorporated a property settlement agreement which gave custody of their infant child, Cameron, to Ms. Jones and provided that Dr. Jones was to pay $2,000 per month in child support. On Sunday, December 13, 1992, the chancery court issued an emergency ex parte order which provided that Dr. Jones was not required to return Cameron to Ms. Jones following Dr. Jones’ weekend visitation and that an emergency custody hearing would be scheduled. The emergency hearing was scheduled for December 16, 1992, and on December 18, 1992, the chancery court issued a temporary order changing custody of Cameron from Ms. Jones to Dr. Jones pending a final hearing. A trial was held in February 1994 for the purpose of hearing Dr. Jones’ petition for a permanent change of custody. After the trial, the chancery court determined that there had been a material change in circumstances which warranted a change in custody from Ms. Jones to Dr. Jones. In its order, the court allowed Ms. Jones liberal visitation rights and abated Dr. Jones’ child support obligation. Specifically, the chancery court relied on its finding that Ms. Jones was unable to provide for Cameron’s emotional needs; that Dr. Jones lived in Conway, which is a much safer environment than Little Rock, where Ms. Jones had recently relocated; and that Dr. Jones had recently remarried and could provide a more stable home than Ms. Jones, who remained single.
For reversal, Ms. Jones raises numerous arguments pertaining to each of the three custody proceedings. She first argues that the trial court exceeded its authority in conducting a child custody hearing on Sunday, December 13, 1992, and abused its discretion in changing custody based upon ex parte communications. As to the December 16, 1992, emergency hearing, Ms. Jones contends that she was not given adequate notice of the hearing as is required by the due process clause of the Fourteenth Amendment, and that the manner in which the hearing was conducted deprived her of due process of law. Ms. Jones also argues that the trial court erred in awarding an emergency change of custody after the hearing because there was insufficient evidence that Cameron was in danger or that it was detrimental for Cameron to be in the custody of Ms. Jones. In addition, Ms. Jones chai- lenges the sufficiency of the evidence with regard to the permanent change of custody to Dr. Jones. She asserts that the trial court’s finding that “it questioned] [Ms. Jones’] ability to adequately provide an emotionally stable and wholesome home for the child” indicated a clearly erroneous standard, and that the trial court abused its discretion in finding that her move from Conway to Little Rock was a substantial change in circumstances supporting a change in custody. Ms. Jones further asserts that the trial court abused its discretion in concluding that the remarriage of Dr. Jones, the subsequent birth of a child, and the presence of a stepson was a significant change of circumstances justifying a change of custody. Finally, Ms. Jones argues that the chancellor abused his discretion in refusing to recuse.
We first note that all of Ms. Jones’ arguments which pertain to the temporary custody orders are now moot and need not be addressed by this court. It is well settled that a temporary order is terminated upon entry of a subsequent permanent order. Vairo v. Vairo, 27 Ark. App. 231, 769 S.W.2d 423 (1989). The rights of the parties in the present litigation have been settled by the final award of custody, and a decision on the merits of the temporary awards would have no practical effect on the rights of the parties. See id. However, because error by a chancellor in granting or denying ex parte emergency relief incident to an action seeking a change of custody is virtually always moot and evades review, we will use this occasion to briefly address appellant’s contention that the ex parte order here should not have been entered. See Wright v. Keller, 319 Ark. 201, 203, 890 S.W.2d 271, 272 (1995).
We acknowledge that the matter of emergency ex parte applications in child custody proceedings must be one of the most difficult areas of a chancellor’s jurisdiction. This is so because ex parte decision-making is contrary to the basic premise of our justice system that an adversarial presentation of a controversy will result in a better reasoned, and hopefully correct, decision. However, because of the harm which can so quickly be suffered by a helpless child, emergency measures without an adversarial presentation are sometimes necessary to terminate or avoid a perceived harmful situation. While divining the truth can be difficult in adversarial proceedings, it is even more difficult when a chancellor has an ex parte petition and affidavits sud denly thrust upon him. The risk and consequence of erring in rendering ex parte protection to a child can appear to be of lesser gravity than the harm which might result if relief is denied.
The procedural method employed by Dr. Jones in seeking emergency custody of the minor child without notice to Ms. Jones, as the custodial parent, is found only under Rule 65 of the Arkansas Rules of Civil Procedure. This rule provides for injunctive relief where irreparable harm or damage will or might result if such relief is not granted. Section (a)(1) of the rule requires the court to decide the merits of an ex parte request for relief on the basis of assertions of fact contained in supporting affidavits or a verified complaint. Here, Dr. Jones’ request for emergency ex parte relief was supported by four documents: Dr. Jones’ verified petition and affidavit, a letter from Dr. Gayle Harrison, and a letter from Dr. Justin Ternes. Because the letters from Dr. Harrison and Dr. Ternes were not under oath they could not constitute affidavits. Ark. Code Ann.§ 16-40-103(b). The fact that these letters were attached as exhibits to Dr. Jones’ verified petition for relief does not bootstrap them into affidavits, and they should not have been considered by the chancellor. This leaves only Dr. Jones’ verified petition and affidavit. When the hearsay statements of Dr. Harrison and Dr. Ternes are disregarded, the only remaining allegations of fact addressing the need for relief could only support, if proven, a change of custody after notice and a hearing on the merits, but fall short of establishing such an emergency that irreparable harm would or might result if immediate ex parte relief was not granted. We believe that the chancellor erred by granting ex parte relief under these circumstances.
Although Rule 65 provides for relief without written or oral notice to the adverse party or his attorney where the requisite proof of emergency is shown, we believe the better practice is to give oral notice to the adverse party’s attorney, if known and available to receive such notice, prior to submission of the ex parte request. Many times the adverse party may not have retained an attorney at this stage of the proceeding. However, if the ex parte request is incident to a change of custody following an earlier custody award, the attorney who represented the adverse party in the earlier proceeding should be notified unless the earlier proceeding occurred in the distant past. Dr. Jones’ petition for ex parte relief was submitted to the chancellor on December 13, 1992. The record reflects that the parties’ divorce was granted by decree filed November 13, 1990, some twenty-five months earlier, at which time Ms. Jones was represented by an attorney, Thomas S. Stone. Notice was not given Mr. Stone of the ex parte proceeding.
Ms. Jones also argues on appeal that the chancellor erred by considering the petition for ex parte relief and signing the resulting order on a Sunday, citing Ark. Code Ann.§ 16-10-114 and Chester v. Arkansas Board of Chiropractic Examiners, 245 Ark. 846, 435 S.W.2d 100 (1968). Dr. Jones responds to this by denying the applicability of § 16-10-114 to emergency ex parte proceedings, but arguing that even if it is applicable then it is unconstitutional. Because we have found on other grounds that the ex parte order should not have been granted, we will not reach this constitutional issue. See Board of Equalization v. Evelyn Hills Shopping Ctr., 251 Ark. 1055, 476 S.W.2d 211 (1972).
For the same reason we addressed the appellant’s argument about the propriety of the ex parte order, we will briefly consider appellant’s contention that the chancellor also erred in granting the temporary change of custody order. A hearing was held on December 16, three days after issuance of the ex parte order. While appellant argues that notice was received less than forty-eight hours prior to the hearing, and that she was not given sufficient time to arrange for several other witnesses to testify on her behalf, appellant neither moved to reset the hearing nor to continue the hearing at the conclusion of her proof.
Appellant contends that the evidence before the chancellor was insufficient to support a temporary change of custody. Appellee testified and called Dr. Gayle Harrison, a psychologist, and Dr. Justin Ternes, a child psychiatrist, as witnesses. Appellant testified and called her sister, Dr. Cathleen Burgess, an anesthesiologist, and her pastor, Dr. Arnold Murray. On rebuttal, appellee called Tina Verser, a nurse employed by appellee. The facts were in sharp dispute. However, appellee’s expert, Dr. Harrison, expressed her opinion that the child had an adjustment disorder with disturbances of emotion and conduct, and had been traumatized while in the mother’s custody. While there was evidence to the contrary, in child custody cases we defer to the supe rior position of the chancellor in assessing credibility of the witnesses. Bennett v. Howell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). While we may have made a contrary decision, we cannot conclude that the chancellor’s determination to place custody of the child with appellee on an interlocutory basis was clearly erroneous.
We are primarily concerned with Ms. Jones’ three arguments pertaining to the final custody determination, as well as her argument that the chancellor erroneously refused to recuse from this case. Ms. Jones takes issue with the final custody award, arguing that the trial court’s decision to change custody was clearly against the preponderance of the evidence. Specifically, she attacks the trial court’s reliance on each of three changes of circumstances upon which the court determined that a change of custody was warranted. This court has stated many times that a material change in circumstances must be shown before a court can modify an order regarding child custody, and the party seeking modification has the burden of showing a change in circumstances. Snisky v. Whisenhunt, 44 Ark. App. 13, 864 S.W.2d 875 (1993). The best interest of the child is the polestar for making judicial determinations concerning child custody matters. Welch v. Welch, 5 Ark. App. 289, 635 S.W.2d 303 (1982). On appeal from chancery court cases, this court considers the evidence de novo, but the chancellor’s decision will not be reversed unless it is shown that his decision is clearly against a preponderance of the evidence. Rogers v. Rogers, 46 Ark. App. 136, 877 S.W.2d 936 (1994).
The first change of circumstances relied on by the chancellor related to his finding that “[w]hile [Ms. Jones] has proven that she is able to function adequately and competently in most areas of her social and work life, the Court questions [her] ability to adequately provide an emotional, stable and wholesome home for the child.” Ms. Jones argues that this finding erroneously shifted the burden of proof away from Mr. Jones and in effect forced her to prove her case beyond question. Ms. Jones also argues that the finding that she is unable to adequately provide a stable home is clearly against the preponderance of the evidence.
We find that the burden of proof was not shifted to Ms. Jones in this case. Rather, the chancellor was merely expressing his concern for the welfare of the child when he announced his uncertainty regarding Ms. Jones’ ability to provide a stable home. The record, in fact, does contain evidence that Cameron was suffering emotionally while in Ms. Jones’ custody and that Ms. Jones had a history of mental problems. Dr. Avam Jeffery Zolten, Directory of Psychology Services at the Family Guidance Center, examined Ms. Jones and testified that she exhibited paranoid behavior. Dr. Zolten also expressed concern as a result of Ms. Jones’ statement that she could tell her son not to do something in a certain tone of voice and he would run to the corner and start crying. Drs. Gayle Harrison and Becky Porter both rendered psychological treatment to Cameron, and both expressed an opinion that Cameron had been traumatized by a female authority figure and that Christy Jones’ home presented an unstable environment for Cameron. Dr. Jones testified and expressed concern because Ms. Jones had been discussing serpents, demons, and death with Cameron and that she would have the child participate in exorcism rituals of cleansing her home of these plagues; and that Ms. Jones told him in Cameron’s presence that she “heard snakes under the house and they were turning” and “when the snakes are turning, that means evil is on its way, and you’re evil.” Finally, Dr. William Siegal testified that he diagnosed Ms. Jones as having a borderline personality disorder approximately seven years before the final custody hearing and there was evidence that, prior to the birth of Cameron, Ms. Jones had attempted suicide on three occasions. Although these two factors predate the original custody award and do not constitute a change of circumstances, a judicial award of custody may be modified upon a showing of facts affecting the best interest of the child that were not presented to the chancellor or were not known by the chancellor at the time the original custody order was entered. Stamps v. Rawlins, 297 Ark. 370, 761 S.W.2d 933 (1988). While it is true that there were medical opinions in this case that tended to show the fitness of Ms. Jones as a parent, this court defers to the superior position of the chancellor in determining credibility of witnesses, particularly in child custody cases. See Bennett v. Howell, supra. The chancery court was entitled to give credence to the evidence indicating that Ms. Jones’ custody of Cameron was detrimental to the child, and its reliance on this evidence in changing custody was not clearly against the preponderance of the evidence.
Ms. Jones next argues that the trial court abused its discretion in holding that her move from Conway to Little Rock and her husband’s remarriage constituted substantial changes of circumstances supporting a change of custody. We cannot agree. There was evidence presented that Ms. Jones’ home in Little Rock is in a higher crime area than Dr. Jones’ home in Conway. This is a legitimate factor to be considered in determining what is in the best interest of the child. Remarriage of one of the parties is also a factor to be considered when deciding what is in a minor child’s best interest. See Roland v. Roland, 43 Ark. App. 60, 859 S.W.2d 654 (1993). In the case at bar, Dr. Jones remarried and has a stable family unit consisting of himself, his wife, Cameron’s half brother, and Cameron’s stepbrother. The chancery court did not abuse its discretion in taking this change of circumstances into account. Furthermore, in light of all of the material changes in circumstances, we find no error on the part of the court in its decision to change custody.
The remaining issue in this case is whether the chancery judge erroneously refused to recuse. Ms. Jones essentially contends that the chancery judge should have recused because his impartiality was put into question when he entered the emergency ex parte custody order. Ms. Jones also argues that the judge indicated bias when, prior to the emergency custody hearing held three days after the ex parte order, he refused to allow her to take Cameron to an independent psychiatrist for an examination without court approval.
Judges are presumed to be impartial and the party seeking disqualification bears a substantial burden proving otherwise. Chancellor v. State, 14 Ark. App. 64, 684 S.W.2d 831 (1985). Disqualification of a judge is discretionary with the judge himself, and his decision will not be reversed absent an abuse of that discretion. Korolko v. Korolko, 33 Ark. App. 194, 803 S.W.2d 948 (1991). Although we agree that the chancery judge in this case erroneously issued the emergency ex parte order, we do not find that this or any other action taken by the judge rose to the level of putting his impartiality at issue. We find no abuse of discretion in the judge’s refusal to recuse.
Affirmed.
Pittman, J., concurs.
Rogers, J., dissents.
The record does not reflect that Ms. Jones disputed this testimony. In fact, the record does not reflect that Ms. Jones testified at all over the course of the four-day final hearing. | [
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Wendell L. Griffen, Judge.
James _ Andrew Taylor challenges his conviction for possession of drug paraphernalia with intent to manufacture methamphetamine. He contends on appeal that the trial court erroneously denied his motion for continuance in order to obtain substitute counsel. The State concedes error and requests that appellant’s conviction be reversed because the record does not reflect that appellant knowingly and intelligently waived his right to counsel at trial. We agree and reverse and remand for a new trial.
Facts and Procedural History
On September 8, 1999, Officer Dan Morales of the Arkansas State Highway Police observed appellant driving a vehicle with defective windshield wipers. After the officer pulled appellant over, appellant agreed that the wipers were defective and told Morales that he had borrowed the car from a friend.
After conversing with appellant, Morales became suspicious and requested appellant’s permission to search the vehicle. Appellant consented. When Officer Morales asked appellant to open the trunk, the passenger in the vehicle immediately responded, “there’s nothing in the trunk.” Appellant proceeded to open the trunk, and Morales discovered several items of drug paraphernalia. Appellant was charged with possession of drug paraphernalia with intent to manufacture methamphetamine.
On November 1, 1999, appellant appeared before a trial judge and was found indigent. The court appointed a public defender, Scott Freydl, to represent appellant at trial, which was scheduled for February 14, 2000. Although appellant met with Freydl to discuss his case, Freydl left the Public Defender’s Office and the court appointed David Mark Gunter to represent appellant. Between November 1, 1999, and February 14, 2000, appellant appeared before the trial court once for a pretrial hearing on discovery motions.
In a hearing conducted on the day of jury selection, appellant informed the court that he no longer wanted Gunter to represent him. When the court inquired further, appellant told the court that he had been incarcerated for five months, that he had received his tax returns, and that he now had the money to hire a lawyer. Appellant stated that he had not had the opportunity to go over the case file with an attorney and that he was requesting a continuance to hire a lawyer. He informed the court that if it granted the motion, “we could take care of this matter at the next court. date.” The'following colloquy took place:
The Court: I am not going to continue this matter. You were in here on the 10th and I told you the trial date would remain the same. We will proceed to trial with either you representing yourself or Mr. Gunter representing you. The jury will be selected today and the trial will be conducted — (to Mr. Wright, Prosecuting Attorney) do you have the witnesses subpoenaed for tomorrow?
Mr. Wright: For tomorrow.
The Court: The trial will be conducted tomorrow. Do • you desire [that] Mr. Gunter continue to represent you at this time?
Appellant: No, sir, I still beg for the mercy of the court to let me have the opportunity to hire an attorney. I’ve got the means and I’ve been in contact with my father in Colorado. He says that he will help me in any way.
The Court: You appeared in court last week on the 10th?
Appellant: Yes, sir. I wanted to ask for a continuance at that time but I was just rushed in and rushed right back out.
The Court: I am going to deny your motion for continuance. Do you understand that you have a right to have Mr. Gunter represent you?
Appellant: No, sir, I do not wish that.
The Court: Do you wish to represent yourself?
Appellant: At this time, no, sir. I wish to obtain a paid lawyer.
The Court: If you can obtain a lawyer by the time we start the jury trial, you may do so. The trial is going [to] continue. Do you understand that?
Appellant: I understand that you’re denying me — that I cannot obtain a lawyer at this time.
The Court: No. You have a lawyer. Mr. Gunter is a competent lawyer.
Appellant: Yes, sir, but he has not come down and went over [sic] this case file with me and I need some of this evidence suppressed. There are some allegations here that are not true and I am asking for a chance to go over this with a lawyer. The first time I saw Mr. Gunter, he didn’t even have this case file with him.
The Court: At this time, you understand — do you desire Mr. Gunter to continue to assist you at this time?
Appellant: No, sir. At this time, I do not because I have the means to afford a lawyer.
The Court: We are going to select the jury in a few minutes for trial tomorrow. Understand that?
Appellant: I understand.
The Court: I am going to require that Mr. Gunter, although not representing [appellant], advise him should he have any legal or procedural questions. You understand that?
Yes, Your Honor. Appellant:
The Court: For the record, [appellant] has been in jail since September of— and the charges — since November 1, 1999. This matter has been set for trial today and the Public Defender’s Office has been appointed, I believe at the first appearance, at that time. Pm going to take about a five minute recess at this time and we will come back to select the jury.
Following deliberations, the jury found appellant guilty of possession of drug paraphernalia with intent to manufacture methamphetamine. It sentenced him to ten years’ imprisonment and fined him $5,000. This appeal followed.
Appellant’s Right to Counsel
For his sole point on appeal, appellant asserts that the trial court erroneously denied his motion for continuance in order to obtain substitute counsel. As support for his argument, appellant contends that he never waived his right to counsel, and that the trial court failed (1) to inquire of his understanding of the procedure and charges against him, and (2) to warn him of the danger of proceeding pro se. Thus, appellant reasons that the record does not support a conclusion that he knowingly and intelligently waived his right to counsel. The State concedes that the record fails to demonstrate that appellant knowingly and intelligently waived his right to counsel. We agree.
Recently, in Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001), our supreme court addressed the issue of whether an appellant knowingly and intelligently waived his right to counsel by stating as follows:
[T]his court has long recognized the crucial aspect of informing an accused of his right to represent himself, along with the attendant risks. Furthermore, our court has held that the trial court maintains a weighty responsibility in determining whether an accused has knowingly and intelligently waived his right to counsel. Every reasonable presumption must be indulged against the wavier of fundamental constitutional rights,- and the burden is upon the State to show that an accused voluntarily and intelli- gendy waived his fundamental right to the assistance of counsel. Determining whether an intelligent waiver of the right to counsel has been made depends in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused.
A criminal defendant may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. The “constitutional minimum” for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel.
Id. at 325-26, 57 S.W.3d at 700-01 (citations omitted).
The assistance of standby counsel may rise to a level sufficient for our court to moot an assertion of involuntary waiver of right to counsel based on our determination that the appellant had counsel for his defense. See Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). Whether the assistance rises to this level is a question that is answered by looking at the totality of the circumstances. See id. To moot an assertion of involuntary waiver, the assistance must be substantial, such that standby counsel was effectively conducting the defense. See id.
After applying the guidelines governing knowing and intelligent waiver to the facts and circumstances in Hatfield, supra, the Ha field court determined that the trial judge failed to adequately advise Hatfield of the consequences of proceeding pro se. The court noted that the trial judge erred by failing to make even a limited inquiry into Hatfield’s understanding of the legal process, although the judge allowed standby counsel to remain in the case. However, the court held that deficiencies in the judge’s inquiry were rendered moot because standby counsel actively participated throughout the trial such that Hatfield waived his right to proceed pro se. See Hatfield v. State, supra.
In Bledsoe, supra, our supreme court determined that there was no evidence of an inquiry by the trial court into Bledsoe’s waiver of the right to counsel, and that Bledsoe’s appointed standby counsel did not actively participate in his defense. Because Bledsoe was left to represent himself, and because Bled-soe’s appointed counsel did not actively represent him, the court determined that Bledsoe was denied his right to counsel. See Bledsoe v. State, supra.
The record in the present case demonstrates that the trial court made no inquiry as to whether appellant understood the risk or danger in representing himself. Instead, the record contains ample support for appellant’s contention that he did not waive his right to counsel. Appellant told the court that he did not wish for Gunter to represent him, and that he did not wish to represent himself. He repeatedly asked the court for permission to obtain a “paid lawyer,” because he “had the means to do so.” When the court told appellant that he already had a lawyer (Gunter), appellant expressed dissatisfaction with Gunter’s services. He told the court that Gunter had visited him once and on that occasion Gunter did not have the case file with him. Appellant also advised the court that although he wanted certain items suppressed, Gunter failed to file a motion to suppress evidence. We note that Gunter did not dispute appellant’s assertions or claim that he was ready for trial. Based on our review of the record, we hold that the trial court’s failure to inquire as to appellant’s understanding of the legal process, or to warn appellant about the possible consequences and disadvantages of representing himself constitutes reversible error.
In rendering our decision, we note that the trial court’s denial of appellant’s request for counsel cannot be justified based on appellant’s belated request for a continuance on the day of trial. As observed by the State, the record fails to reveal that appellant had previously requested any continuances. Indeed, appellant was incarcerated pending trial and told the court that he had received his tax returns and had the money to hire a lawyer. Appellant also told the court that if the motion was granted, he would “take care of this matter at the next court date.” The record unequivocally supports a conclusion that appellant’s request for a continuance in order to obtain counsel was not an attempt to delay the trial or to obstruct the criminal justice system.
Moreover, the record does not support a conclusion that appellant’s involuntary waiver of counsel was rendered moot because of the assistance of standby counsel. Instead, the record demonstrates that during jury selection and throughout the trial, appellant actively represented himself by questioning potential jurors, making opening and closing arguments, cross examining a witness, and raising a relevance objection, which was overruled, to a videotape that the State sought to introduce into evidence. On the other hand, the record indicates that Gunter’s role throughout the proceeding was minimal. Gunter advised appellant on the number of jury strikes, informed the court that appellant did not wish to testify in his own defense, and reviewed prospective jury instructions. Gunter raised no objections to evidence or exhibits, and did not cross-examine any witnesses. Viewing the totality of the circumstances, we conclude that Gunter’s level of participation did not rise to the level such as to moot appellant’s involuntary waiver.
We hold that appellant was denied his right to counsel, and we reverse his conviction and remand for a new trial. Because of our conclusion that appellant did not knowingly and intelligently waive his right to counsel, there is no need to address appellant’s contention that the trial court erroneously denied his motion for a continuance, as this issue is not likely to arise again on remand.
Reversed and remanded.
Vaught and Baker, JJ., agree. | [
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Larry D. Vaught, Judge.
Appellant Kevin Barton inter-locutorily appeals from the trial court’s denial of his motion to transfer his case to juvenile court. On appeal, Barton limits his claim of error to a single issue — that the Arkansas juvenile transfer statute, Ark. Code Ann. § 9-27-318 (Repl. 2002), is unconstitutional because it is violates both equal protection and due process of law. We affirm.
Barton was charged with capital murder, aggravated robbery, and residential burglary following a felony information filed by the State. The State alleged that on August 5, 2004, he robbed, shot, and killed an eighty-four-year-old woman in her home. Because Barton was sixteen years old when the alleged offenses took place, he moved to transfer the case to the juvenile division of the lower court.
His motion to transfer the case to juvenile court was filed on June 30, 2005. On July 28, 2005, he filed a separate motion asking the trial court to declare the juvenile-transfer statute unconstitutional. On July 29, 2005, Barton brought his constitutional chai- lenge before the trial court, after which all parties agreed to postpone a ruling until all evidence was heard. On August 30, 2005, the trial court denied Barton’s motion for transfer. On August 31, 2005, the court entered a separate order relying on Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994), denying Barton’s request that it find the juvenile-transfer statute unconstitutional. That same day, Barton filed a notice of interlocutory appeal from the trial court’s August 30 denial of his transfer motion. However, the sole issue he argues on appeal involves the constitutionality of the juvenile-transfer statute — the subject of a separate order entered on August 31.
Therefore, as an initial matter, we must consider the procedural posture of the appeal. Barton takes an interlocutory appeal from a motion to transfer, which is permitted, but then offers only a constitutional argument on appeal. At the outset we note that Barton has appealed from the transfer-denial order, which concluded his rights in the matter ofjuvenile transfer and by statute is immediately appealable. Ark. Code Ann. § 9-27-318. Thus, the issue of whether the trial court erred in its decision to deny Barton transfer is properly before this court. However, the appeal before us specifically limits the claim of error to only one issue — the constitutionality of the statute. In fact, in his jurisdictional statement, Barton states that he “raises but one point on appeal, to wit, that the trial court erred in denying his motion to hold the Arkansas juvenile-transfer statute, Ark. Code Ann. § 9-27-318 (Repl. 2002), unconstitutional as the denial of equal protection of the law and due process of law.”
While it is well settled that interlocutory appeals are granted as a matter of statute or rule, and there is no right to such appeal granted by the Constitution of the United States, Ellis v. State, 302 Ark. 597, 598, 791 S.W.2d 370, 370 (1990), an appellant is permitted to make constitutional arguments in conjunction with a statutorily authorized argument — as in Beck. In Beck, the primary-argument was the denial of a motion to transfer, but our supreme court also considered an equal-protection argument offered in conjunction with the denial-of-transfer argument. Although the Beck precedent permits us to hear any constitutional arguments Barton offered in conjunction with his transfer argument, in this case, the transfer denial and the constitutionality of the juvenile-transfer statute are separated by Barton’s design. He filed two distinctly separate motions outlining each of his arguments — sufficiency and constitutionality — and received two separate rulings and orders. He interlocutorily appeals the only order that he had a right to appeal — the transfer motion, yet makes no transfer argument.
Because Barton failed to offer any argument relating to the sufficiency of the evidence supporting the trial court’s decision to deny him transfer to the juvenile division, he has not demonstrated a need for interlocutory relief. Accordingly, we affirm the trial court’s denial of transfer because Barton’s juvenile-transfer argument was abandoned on appeal. Stacks v. Marks, 354 Ark. 594, 600, 127 S.W.3d 483, 486 (2003). Further, we refuse to reach the merits of Barton’s constitutional arguments at this stage of litigation because they are not made in conjunction with a valid interlocutory claim. It is axiomatic that the tail may not wag the dog.
Affirmed.
Roaf, J., agrees.
Hart, J., concurs. | [
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Sam birdJudge.
Appellant Multi-Craft Contractors, Inc., a general contractor that maintains a partially self-funded health plan for the benefit of its employees, appeals a summary judgment entered for appellees Gerber Life Insurance Company Inc. and Perico Ltd., Gerber’s general managing underwriter. Multi-Craft contends that the trial court erred in finding that no issues of material fact existed as to whether Gerber and Perico had adequate grounds to retroactively exclude a Multi-Craft employee from an insurance policy for excess-loss coverage. The appeal focuses on a form, completed as part of Multi-Craft’s application for the policy, that required disclosure of “benefits paid, pended, or denied in the last 12 months.” The trial court found that the quoted term was not ambiguous. We agree, and we affirm the summary judgment.
In July 2003 Gerber and Perico bound the excess-loss policy to Multi-Craft to cover claims exceeding $50,000 for employees participating in Multi-Craft’s health plan. “Run-in coverage” was included for claims incurred during the twelve months before the policy’s effective date of June 1, 2003. In September 2003 Multi-Craft submitted through its third-party administrator, AdminOne Corporation, over $70,000 in bills incurred by a diabetic plan participant and denied during the one-year retroactive period. Gerber and Perico refused the claim, asserting that AdminOne had misrepresented the amount of “benefits paid, pended or denied” the participant by inserting only $7,060.23 where this information was requested on the application form. Gerber subsequently notified Multi-Craft that Gerber was exercising its contractual right to revise the policy and that the participant was being excluded from its coverage.
After receiving this notification, Multi-Craft brought an action for breach of contract and promissory estoppel against Gerber, Perico, and AdminOne. Gerber and Perico denied that the loss disclosure form was properly and correctly filled out, and they asserted that substantial and material information was withheld from them during the application process, including the submission of the excess-loss disclosure form. They contended that, under the clear terms of the disclosure form and policy, Gerber was entitled to modify its excess-loss policy to exclude the employee as to whom claims information had been misrepresented.
At the conclusion of a hearing held on July 26, 2005, the trial court granted Gerber and Perico’s motion for summary judgment. The court’s written order of judgment, entered on August 12, 2005, included the following findings:
2. The Court finds that the excess loss disclosure form at issue in this matter is clear and unambiguous in its terms, conditions and intent and that a material failure to disclose information was made on said excess loss disclosure form.
3. Based upon the clear and unambiguous language of the excess loss disclosure form, the application and the contract of excess loss coverage itself, there is no material issue of fact[.]
An order of voluntary dismissal without prejudice was entered as to AdminOne, and Multi-Craft filed this appeal from the order of summary judgment in favor of Gerber and Perico.
Multi-Craft asserts that it presented evidence to the trial court sufficient to create five issues of fact: whether the application form was ambiguous, whether the application was completed correctly, whether an alleged misrepresentation was material, whether Gerber had knowledge of the employee’s medical condition, and whether Multi-Craft had knowledge of the alleged misrepresentation. We do not agree.
Summary judgment is appropriate when there are no genuine issues of material fact, and the moving party is entitled to judgment as a matter of law. Hanks v. Sneed, 366 Ark. 371, 235 S.W.3d 883 (2006). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. The reviewing 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. The evidence is viewed on appeal in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Appellate review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
The excess-loss disclosure form, which was dated May 8, 2003, was submitted through AdminOne as a required part of Multi-Craft’s application process. The document included the following statements and instructions:
This Disclosure Form is an integral part of your request for and/or renewal of Excess Loss Insurance. It will be relied upon by the Excess Loss Insurer in issuing an Excess Loss Insurance Contract.
After receipt and review of the completed Disclosure Form, the Excess Loss Insurer reserves the right to revise the initial offer of coverage and/or to withdraw its offer to provide Excess Loss Insurance. Further, the Excess Loss Insurer reserves the right upon discovery of any omitted information, to revise or otherwise reconsider any underwriting actions that may have been made, and such actions may be retroactive to the Effective Date of coverage. . . .
All representations shall be deemed to be material to acceptance of the risk by the Excess Loss Insurer and the Excess Loss Contract is to be issued in reliance of the truth and accuracy of such representations. Should subsequent information become known which, if known prior to issuance of the Excess Loss Contract, would affect the premium rates, factors, terms or conditions for coverage thereunder, the Insurer will have the right to revise the premium rates, factors, terms or conditions as of the effective date of the Excess Loss Contract. . . .
The disclosure form requested information on “any participants with a history or a current diagnosis of any serious disease or disorder, such as . . . cancer, diabetes, heart diseases, renal failure, . . . and potential organ transplants, etc.”; the hand-written response stated that a particular employee had diabetes with renal manifestation. Also regarding this employee, the figure $7,060.23 was entered under the heading, “Benefits Paid, Pended or Denied in Last 12 Months.”
Evidence submitted to the trial court, in addition to the pleadings and insurance documents, included deposition testimony regarding the application process. Anita Carol Holmes, a claims processor for AdminOne, testified that she could review a person’s claims history by using a computer system. She said, “All of that information as far as paid, pended, and denied claims would be on the RIMS system. When we deny a claim, there is a code that indicates why it’s denied. When a claim is suspended or pended, we suspend it with a particular code . . .
Richard Barrows, president of Multi-Craft, testified that Multi-Craft relied on AdminOne to properly fill out the application, including the excess-loss disclosure form. He said that he had no idea if AdminOne provided on the form accurate information regarding the amount of benefits paid, pended, or denied. He said that he became aware of a problem with the issuance of the policy after he assumed the policy had been issued, that Multi-Craft then “just paid the claims all out of our pocket,” and that a policy of insurance excluding the employee was eventually issued by Gerber and Perico.
Gary Baker, one of the owners of AdminOne, testified, “I don’t know where you would write in pended and denied and paid in that little square . . ., because there is just not enough room on the form. That’s not the intent of the form.”
Mason Baker, an AdminOne employee, testified that he wrote the figure “$7,060.23”on the excess-loss form, which he said was “the total amount of the claims that were paid” but “not the total amount that were pended.” He stated that he “chose not to put in denied or pended,” further explaining:
I didn’t need to tell anyone at Perico or Gerber that this figure did not respond to the pended or denied portion of the question, because it was obvious. That’s what’s implied based on experience. When they want additional information they will come back and ask for it.
He said that he did not provide the amount of claims denied or pended on the excess loss disclosure form “because that information has never been asked for or supplied.” He stated that he had filled out the same disclosure on several occasions for Perico. His testimony continued:
[B]ecause I never provide the amount of denied or pended claims, I didn’t do it this time for Employee. We had never given Perico a dollar amount for claims denied.
It’s very obvious from the numbers in the column on the loss form that there are claims for Employee that are out there that have either been incurred and are paid or have been denied, and from that point you’re going to dig deeper, which goes down to the Large Case Management notes, which is exactly what happened — so this was all standard procedure exactly like we had done on multiple occasions....
The answer I provided is accurate.
James Cook, Perico’s vice-president of underwriting, testified that on May 9, 2003, AdminOne submitted the disclosure form to Perico and also emailed Perico a “Large Case Management Report” revealing that one employee had been on dialysis since at least February 2003. Cook stated that “it was fair to assume, based upon reasonable dialysis charges of $6,000 per month, that [the employee] could easily have had $30,000 in medical bills for dialysis for the period of time from February 2003 through June 2003.” Cook said that Trinice Harris, Perico’s underwriter assigned to the case, made a handwritten notation in her file that the employee had kidney failure after she received the email and that she bound coverage for Multi-Craft under Gerber’s excess-loss policy on July 10, 2003, with an effective date ofjune 1, 2003 and “run-in coverage” for claims incurred during the twelve months prior to the effective date.
Cook revealed that he took over the underwriting process after Harris voluntarily resigned her employment on August 15, 2003. Cook testified that Harris explained to him before she left that there was a “transplant policy” in force for the diabetic employee that would exclude transplants from the insurance policy. He explained that, after telephoning Harris in late August and learning that she had relied upon the information written on the disclosure form, Cook made the decision to exclude the employee from coverage.
He said that his company was not concerned so much about a condition as it was about the risk to the plan, explaining that the risk was what was being underwritten. He said that “a large case management report. . . may or may not represent a potential risk.” He stated his belief that the “substantial dollar amounts” of the employee’s claims should have been on the form’s list of pended claims, which “would have made a difference in the way we underwrote the case had we known . . . .”
Cook noted that the large case management report did not have “any dollar amounts” on it. He testified:
From an underwriting standpoint in relationship to the risk that Gerber Life is taking, i.e., claims over $50,000, the dollar amount becomes very, very important. And as I explained before, there are several reasons why people with expensive, on-going conditions might not have — the plan may not be liable for them. We’re not interested in that, we don’t care about that. We don’t care if a person is getting their bills paid by the coverage they might have on their spouse’s policy. We don’t care if the bills are being paid under Medicare. What we’re underwriting is what does the plan — what liability does this claim or claimant represent to the plan.
It is possible that a person who is incurring $6,000 a month on dialysis could have only $7,000 in combined, paid, pended or denied claims because somebody else is paying the claims. We’ve assumed that [$7,060.23] was all that was paid, pended, or denied in the previous twelve-month period. We relied upon the accuracy of that number. It doesn’t matter who paid it as long as it wasn’t a risk to the plan.
Cook stated that the employee was later excluded from the policy’s coverage because the amount on the form was not accurate, but he acknowledged that on September 8, 2003, he had given different reasons for excluding the employee from coverage.
Hex Bisbee, Multi-Craft’s chief financial officer, testified that his company could call AdminOne to ask what the denied claims of a particular plan participant were. He stated, “I would expect that they would get that information for us.”
James Reagan, an assistant marketing director for Perico, testified that he received a “large case management report” about the employee from AdminOne’s Mason Baker on May 9, 2003. Reagan said that he forwarded the report to underwriter Trinice Harris, that Perico underwriters determine what information a third-party administrator needs to provide to the underwriting department, and that the report included a statement that the employee had renal disease and was currently on dialysis. Reagan testified that he was first notified by an email from James Cook on September 8, 2003, that Perico would retroactively exclude the employee from the policy. Reagan stated that the two reasons Cook gave on September 8 for the exclusion were that “no information about [the employee’s] current condition was supplied prior to the binding of the policy” and that the third party administrator “had told Trinice that [the employee] would be off the plan.”
Erwin Rittinger, a principal and employee of Perico, stated his belief that the claim amount indicated on the disclosure form should have been around $70,000. He stated that Trinice Harris, as the underwriter who was assigned the case, had the ultimate authority to make underwriting determinations. Rittinger said that Harris did not need to know the amount of charges being generated as a result of the employee’s renal failure and dialysis in order to discharge her responsibilities, and he said that he did not think that Multi-Craft acted improperly. Regarding the disclosure form’s request for “benefits paid, pended, or denied,” Rittinger stated: “It’s clear to me from the use of the word ‘or’ that it’s the sum. . . . [T]he form is clear to me that it asks for the sum of the three.”
Mark Kuhls, a potential expert witness, testified that he would look to the parties’ course of dealing in order to define the word “or” in “benefits paid, pended or denied.” He stated that the terms “denied” and “pended” are sometimes interchangeable, that things move from one to the other, and that the disclosure form “does request the amount of pended claims and it requests denied claims as well.”
The trial court’s written order of summary judgment set forth the following finding: “Based upon the clear and unambiguous language of the excess loss disclosure form, the application and the contract of excess loss coverage itself, there is no material issue of fact . . . The written order specifically incorporated comments from the court’s oral ruling. Those comments were as follows:
I have reviewed again the Perico Excess Loss Insurance Disclosure Form and I think a decision on this motion can be made by reviewing it, referring to the pleadings, as far as facts which are not in dispute, and of course, looking at the testimony that the parties have pointed to. I think it’s important to reiterate some of the statements in this Form.
In part, the Form provides that “the excess loss insurer reserves the right, upon discovery of any omitted information, to revise or otherwise reconsider any underwriting actions that may have been made and any such actions may be retroactive to the effective date of coverage.” It “is agreed that the statements in this disclosure form plus any and all materials submitted to Perico for this group are hereby warranted by you [the plan sponsor]. All representations shall be deemed material to acceptance of the risk. And the excess loss contract is to be issued in rebanee of the truth and accuracy of such representations.” Also, and this is very important in my mind, the Form provides that “should subsequent information become known, which [if] known prior to issuance of excess loss contract would effect premium rates, facts, terms and conditions or coverage hereunder, the insurer will have the right to revise the premium rates, factors, terms or conditions as of the effective date of the excess loss contract by providing written notice.”
In my mind, what Gerber did was exercise its right under the contract and issued an addendum to the policy of insurance specifically excluding coverage for... this person that had the renal failure.
Going back to page two of the Excess Loss Disclosure form, [which asks for] benefits paid, pended or denied in the last twelve months, the Court finds that that statement is not ambiguous. It is crystal clear to me after reading the entire document again this afternoon, as I believed it to be before I heard argument today. But it is obvious from — if you look no further than the excess loss insurance disclosure form, that at least one of these companies, Gerber, is making it clear to you, you better tell us everything.”
I know Mr. Baker said,“Well, I never give them the information where it says paid, pended or denied, I just give them paid,” I think is what he said, “I never give them pended or denied.” Well, that may very well be true. I’m not saying that the gentleman isn’t telling the truth. But maybe in the past, he never got caught before. And even if — it’s still an omission, because . . . when reading the whole document, it’s obvious they want everything they can get their hands on to make their decision.
I believe that the phrase “paid, pended or denied in the last twelve months” clearly means all three and not just, “well, you pick which one you want to give us and we’ll accept your choice and you don’t even have to tell us which one it is.” I do not think that makes any sense at all to say that would be the meaning of that phrase.
Multi-Craft and AdminOne, I don’t think it is disputed that this information was an omission. True, they say, “well, we’ve got a custom in the trade for doing that.” Again, I disagree with you. It may have been a custom, but the hand got called this time.
Point on Appeal
We now turn to Multi-Craft’s point on appeal, that the trial court erred in finding that no issues of material fact existed as to whether appellees Gerber and Perico had adequate grounds to retroactively exclude a Multi-Craft employee from excess-loss coverage. Multi-Craft asserts that it presented evidence to create five fact issues. We address the first three together.
Multi-Craft first contends that it presented evidence establishing that the application form was susceptible to more than one reasonable interpretation, in that the phrase “benefits paid, pended or denied” has various meanings. Second, Multi-Craft contends that it created a fact issue as to whether the application was completed correctly. Third, Multi-Craft asserts that a fact issue existed as to whether the misrepresentation was material.
Multi-Craft argues that the confusion created by the form is apparent from the deposition testimony of Gary Baker and Mark Kuhls. Perico and Gerber respond that it is clear from the contract itself that the trial court’s interpretation of the language is the only practical, reasonable, and fair interpretation consistent with the object and intent of the parties. They urge that we reject a hyper-technical interpretation of the policy as “patently unreasonable.” They assert that, as a matter of law, the disclosure form was not ambiguous.
In Elam v. First Unum Life Insurance Co., 346 Ark. 291, 57 S.W.3d 165 (2001), our supreme court examined the question of ambiguity in an insurance contract:
The law regarding construction of an insurance contract is well settled. If the language of the policy is unambiguous, we will give effect to the plain language of the policy without resorting to the rules of construction. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360,16 S.W.3d 242 (2000); Western World Ins. Co. v. Branch, 332 Ark. 427, 965 S.W.2d 760 (1998). On the other hand, if the language is ambiguous, we will construe the policy liberally in favor of the insured and strictly against the insurer. Id. Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one reasonable interpretation. Norris, 341 Ark. 360, 16 S.W.3d 242; Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000). Ordinarily, the question of whether the language of an insurance policy is ambiguous is one of law to be resolved by the court. Norris, 341 Ark. 360, 16 S.W.3d 242; Western World, 332 Ark. 427, 965 S.W.2d 760. Where, however,parol evidence has been admitted to explain the meaning of the language, the determination becomes one of fact for the jury to determine. See Smith, 340 Ark. 335, 10 S.W.3d 846; Southall v. Farm Bureau Mut. Ins. Co., 276 Ark. 58, 632 S.W.2d 420 (1982).
Our case law demonstrates that where there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. As Justice George Rose Smith explained, “[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence.” Id. at 60, 632 S.W.2d at 421 (emphasis added). Thus, where the issue of ambiguity may be resolved by reviewing the language of the contract itself, it is the trial court’s duty to make such a determination as a matter of law. On the other hand, where the parties go beyond the contract and submit disputed extrinsic evidence to support their proffered definitions of the term, this is a question of fact for the jury. In the latter situation, summary judgment is not proper.
346 Ark. at 296-97, 57 S.W.3d 169-70.
We have recently observed that contracts of insurance should receive a practical, reasonable, and fair interpretation, consonant with the apparent object and intent of the parties in light of their general object and purpose. Ison v. So. Farm Bureau Cas., 93 Ark. App. 502, 221 S.W.3d 373 (2006). Further, different clauses in a contract must be read together and construed so that all of its parts harmonize, if that is at all possible, and it is error to give effect to one clause over another on the same subject if the two clauses are reconcilable. Id.
Here, the trial court interpreted the phrase “benefits paid, pended or denied” to mean “all three” instances. The court’s bench ruling included a discussion of the importance of particular statements in the disclosure form:
In part, the Form provides that “the excess loss insurer reserves the right, upon discovery of any omitted information, to revise or otherwise reconsider any underwriting actions that may have been made and any such actions may be retroactive to the effective date of coverage.” It “is agreed that the statements in this disclosure form plus any and all materials submitted to Perico for this group are hereby warranted by you [the plan sponsor]. All representations shall be deemed material to the acceptance of the risk. And the excess loss contract is to be issued in reliance of the truth and accuracy of such representations. Also, and this is very important in my mind, the Form provides that “should subsequent information become known, which is [sic] known prior to issuance of excess loss contract would effect premium rates, facts, terms and conditions or coverage thereunder, the insurer will have the right to revise....”
We agree with the trial court’s conclusion that Gerber clearly instructed an applicant to “tell. . . everything.” Further, we agree with the court’s assessment that the purpose of the form was to permit Perico, as underwriter for Gerber, to assess the risk of the coverage it would undertake on behalf of Multi-Craft’s plan participants.
We hold that, as a matter of law, the disclosure form was not ambiguous. Therefore, no genuine issue of material fact was created as to whether Perico and Gerber rightfully excluded the employee from excess-loss coverage under the policy. In light of this determination that the form was not ambiguous, it follows that no fact issue was created to whether the application was completed correctly when AdminOne submitted only the dollar amount of claims paid rather than the total amount of benefits paid, pended, or denied. Additionally, the form specified that all representations “shall be deemed material to acceptance of the risk” and “the excess loss contract is to be issued in reliance of the truth and accuracy of such representations.” In light of this language, there was no fact issue as to whether the misrepresentation of “benefits paid, pended, or denied” was material to the determination of policy coverage. Thus, we hold that there is no merit to MultiCraft’s assertions that fact issues were created regarding whether language of the excess-loss disclosure form was ambiguous, whether the application was completed correctly, and whether an alleged misrepresentation was material.
Multi-Craft asserts that it created a fourth issue of fact as to whether Perico and Gerber had knowledge of the employee’s medical condition because the “large case management notes” furnished to them provided sufficient information to warrant an investigation of the employee’s claims. Multi-Craft complains that Cook, after learning that information about the employee’s condition had been disclosed two months before coverage was bound, revised the initial reason for excluding him from coverage. Multi-Craft points to testimony that Cook first denied coverage because the information was not supplied prior to the binding of coverage, yet later said that the basis of denial was because the amount of “paid, pended, and denied claims” was not accurately reflected on the disclosure form. Thus, it asserts that the alleged misrepresentation was not a valid basis for retroactive exclusion of the employee from coverage. Citing Old American Life Insurance Co. v. McKenzie, 240 Ark. 984, 403 S.W.2d 94 (1966), Multi-Craft asserts that any misrepresentation on the application, even if material, was not a proper basis for excluding coverage because the insurer had information sufficient to warrant an investigation.
The present case is distinguishable from Old American, which held that an applicant for accident and disability insurance should not be denied benefits of the policy although he did not disclose his complete medical history in his application. The supreme court ruled that when the applicant reported a previous disc operation on the application, he put the insurer upon notice as to his serious back operation; further, when he provided the insurer with the name of his surgeon to whom the insurer could turn for exact and precise information if so desired, “he substantially met all burdens imposed upon him in his relations with [the insurer] under his contracts of insurance.” Old Am., 240 Ark. at 987, 403 S.W.2d at 96.
The issue in the present case is not simply whether Gerber and Perico had knowledge of the employee’s medical condition. Nor is the issue whether the disclosure form, which was part of the application process, put them on notice of the employee’s condition. The issue is whether they were put on notice of the amount of claims being generated against Multi-Craft’s healthcare plan by the employee, including “benefits paid, pended, or denied.” James Cook testified that Perico’s concern was the liability of the plan and that the dollar amount of the employee’s claims would enable Perico to make an informed decision as to whether to accept the risk of extending coverage to him. We hold that, under the specific terms of the disclosure form, the material misrepresentation of the amount of claims denied to the employee gave Gerber and Perico the right to retroactively exclude this employee from the policy’s coverage.
Finally, Multi-Craft asserts that it created a fact issue as to whether it had knowledge of the employee’s condition. It cites Ford Life Insurance Co. v. Samples, 277 Ark. 351, 641 S.W.2d 708 (1982), for the proposition that an insurer must show that the insured was aware of a misstatement before an insurance policy will be rendered void. Gerber and Perico point to terms of the “Administrative Services Agreement” under which Multi-Craft delegated to AdminOne the responsibility “to maintain records regarding payments of Claims, denials of Claims, and Claims pended.” Because of this delegation, Gerber and Perico assert that any ignorance on the part of Multi-Craft as to the employee’s claims history was irrelevant. We agree.
The insured in Ford Life purchased a policy of credit term-life insurance in conjunction with the purchase of a pickup truck, first signing an insurance form that included the execution of a “good health” statement. Prior to the signing, the soliciting insurance agent had learned that the insured was in poor health and was drawing disability insurance, which was founded upon an anxiety reaction and chronic brain syndrome. The day after signing the contract, the insured suffered a myocardial infarction that led to his death. Observing that the insured died as a result of a disease not connected to his total disability condition, the Ford Life court held that a “good health” statement on the application for life insurance, even if material in some respects, will not void the policy unless the insurer shows a causal relation between the misrepresentation and the loss. The court observed, “The ‘good health statement’ obviously did not include the condition which allowed him to receive his Veterans Administration benefits because by agreement his disability check was to be used to pay for the pickup truck.”
In the present case, Multi-Craft asserts that there was a fact question as to whether it was aware of a material misrepresentation on the application because AdminOne, rather than Multi-Craft, had access to information regarding the amount of claims previously denied to the employee. It is well established, however, that a corporation is affected by knowledge of its agent. In Hill v. State, 253 Ark. 512, 521-22, 487 S.W.2d 624, 631 (1972), our supreme court reviewed this rule of agency law:
[A] corporation, which can act only through its officers and agents, is affected with notice which comes to an officer, agent or employee in the line of his duty and the scope of his powers and authority and . . . knowledge of an officer, agent or employee acquired in the ordinary discharge of his duties is ordinarily to be imputed to the corporation.
Here, the disclosure form specifically asked for information about the employee’s condition, and Multi-Craft delegated to AdminOne the responsibility for providing complete and accurate information. Multi-Craft delegated to AdminOne the responsibility of acquiring knowledge about employee’s claims paid, denied, or pended; it therefore cannot claim that it lacked knowledge of this information.
The trial court’s grant of summary judgment is affirmed.
Affirmed.
Baker and Roaf, JJ., agree.
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John B. Robbins, Judge.
Appellant Harold Lepel sustained a neck injury while working for appellee St. Vincent Health Services on March 11, 2002. The appellee accepted the injury as compensable and covered certain medical and temporary total disability benefits. However, a dispute arose over Mr. Lepel’s claim for additional benefits that included medical services provided by Dr. Anthony Russell, TTD benefits from May 22, 2003, through a date yet to be determined, and benefits under Ark. Code Ann. § 11-9-505(a)(1) (Repl. 2002) on account of St. Vincent’s alleged refusal to return Mr. Lepel to work within his physical limitations after May 22, 2003. After a hearing, the Workers’ Compensation Commission ruled that Mr. Lepel failed to establish entitlement to any of the above additional benefits. Mr. Lepel now appeals, asserting that none of the Commission’s findings are supported by substantial evidence. We affirm.
When reviewing a decision from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm the decision if it is supported by substantial evidence. Swaim v. Wal-Mart Assoc., Inc., 91 Ark. App. 120, 208 S.W.3d 837 (2005). Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Davis v. Old Dominion Freight Line, Inc., 341 Ark. 751, 20 S.W.3d 326 (2000).
Mr. Lepel testified that he worked for the appellee in the nuclear medicine department. He stated that he was moving a patient in a stretcher on March 11, 2002, when he felt a sharp pain between his neck and right shoulder, as well as pain down to his left elbow. Mr. Lepel first sought treatment at St. Vincent’s emergency room on March 18, 2002, where he was prescribed medication and advised to visit his family physician, Dr. Charles Barg.
On May 2, 2002, Dr. Barg ordered an MRI and bone scan, and after reviewing the results he took Mr. Lepel off work for two weeks beginning on May 16, 2002, due to a cervical herniation. Dr. Barg then referred Mr. Lepel to a neurosurgeon, Dr. Wilbur Giles. After an evaluation, Dr. Giles returned Mr. Lepel to work beginning on May 31, 2002, with the restrictions that he not lift more then twenty pounds or engage in pushing or pulling activities. Mr. Lepel continued to work with these restrictions and on October 1, 2002, Dr. Giles returned him to regular duty.
Mr. Lepel continued to experience problems related to his cervical injury and was referred to Dr. Reze Shahim, who first saw him on November 5, 2002. Dr. Shahim recommended a program of physical therapy and pain management, which was administered under the direction of Dr. Gary Frankowski. Dr. Frankowski recommended another MRI, which was conducted on December 20, 2002, and indicated what was described as a questionable tiny ruptured disc on the right at C3-4.
Mr. Lepel testified that he aggravated his injury while working under limitations on April 16, 2003, when a patient was getting out of a chair and grabbed his left arm, causing pain to shoot down the arm. On the following day Dr. Barg advised that Mr. Lepel should remain off work until he visited a neurosurgeon. Mr. Lepel presented to a neurosurgeon, Dr. Anthony Russell, on May 14, 2003, on what Dr. Russell characterized as essentially a self referral. Dr. Russell ordered another MRI that was performed on May 16, 2003, which revealed a cervical fusion predating the compensable injury as well as multilevel degenerative changes. On May 19, 2003, Dr. Russell noted that Mr. Lepel could return to work with the restrictions that he avoid pushing, pulling, or lifting more than thirty pounds without assistance. Mr. Lepel was on authorized leave from work under the Family Medical Leave Act from April 17, 2003, until returning to work on May 21, 2003.
Mr. Lepel worked on May 21, 2003, and a portion of the following day before being advised that his employment in the nuclear medicine department was being terminated. Mr. Lepel testified that the manager, Kenneth Goad, and radiology director, Dent Smith, met with him on the morning of May 22, 2003. Mr. Smith was the primary spokesman and told Mr. Lepel that due to budget considerations they could not afford to keep his job open. Mr. Smith then advised Mr. Lepel to report to the office of LeRoy Walker, the vice president of human resources.
When Mr. Lepel met with Mr. Walker, he was presented with a “confidential release” form which, among other things, provided that Mr. Lepel would receive a month’s salary and health coverage if he would agree to release any potential claims against the hospital. However, Mr. Lepel elected not to sign the agreement. Mr. Lepel acknowledged that, during the meeting, Mr. Walker asked him if he would be interested in other positions with the hospital and advised that there were jobs available. Mr. Walker printed off a list of potential jobs and gave it to Mr. Lepel. However, Mr. Lepel declined to apply for any of the jobs, explaining that “I did not think they intended to hire me in any position since I had already been fired.” Mr. Lepel instead accepted his termination and collected his pension fund.
Mr. Smith testified that, at the time Mr. Lepel’s position was terminated, he told Mr. Lepel that he was an employee in good standing with the hospital and that he was eligible to apply for anything that he was interested in within the hospital. Mr. Walker testified that the termination agreement presented to Mr. Lepel was a standard form routinely given to terminated employees. Mr. Walker stated that he specifically asked Mr. Lepel to review the job postings and return to discuss what positions he might be interested in, but that Mr. Lepel never came back to discuss any jobs. In this regard, Mr. Walker testified, “I specifically spoke to Mr. Lepel, shared with him a job listing and recall talking to him about not knowing his exact skill sets or interests in other positions, so specifically asked him to look at our posting and come back to me and indicate what positions he might be interested in sliding into.”
Mr. Lepel’s first argument on appeal is that the Commission erred in refusing to award benefits for the treatment rendered by Dr. Russell on the basis that such treatment was not authorized. Mr. Lepel concedes that he was not referred to Dr. Russell by one of his authorized physicians and that he did not apply for a change of physician pursuant to the applicable rules in Ark. Code Ann. § ll-9-514(a) (Repl. 2002). Subsection (b) of the statute provides, “Treatment of services furnished or prescribed by any physician other than the ones selected according to the foregoing, except emergency treatment, shall be at the claimant’s expense.” However, Mr. Lepel relies on Ark. Code Ann. § 11 -9-514(f) which provides:
(f) When compensability is controverted, subsection (b) of this section shall not apply if:
(1) The employee requests medical assistance in writing prior to seeking the same as a result of an alleged compensable injury;
(2) The employer refuses to refer the employee to a medical provider within forty-eight (48) hours after a written request as provided above;
(3) The alleged injury is later found to be a compensable injury; and
(4) The employer has not made a previous offer of medical treatment.
Mr. Lepel maintains that subsection (f) applies because the appellee controverted further medical benefits, and that a written request for medical assistance was executed and denied. While Mr. Lepel did not himself make any written request, he relies on the April 9, 2003, independent medical evaluation of Dr. Ronald Williams, where Dr. Williams reported that the previous MRI findings were equivocal and that “I would like to repeat that.”
We hold that the Commission properly denied compensation for the treatment by Dr. Russell. Contrary to Mr. Lepel’s argument, the provisions of Ark. Code Ann. § 11-9-514(f) were not met in this case. The report by Dr. Williams did not constitute a written request by the employee for an MRI or treatment under the meaning of the statute. Moreover, compens- ability of Mr. Lepel’s neck injury was not controverted by the appellee, and a previous offer of medical treatment was made by the appellee and accepted by Mr. Lepel. Mr. Lepel’s authorized physician was Dr. Barg, who had made previous referrals to neurosurgeons Giles and Shahim. While Dr. Barg noted on April 17, 2003, that Mr. Lepel should remain off work until he sees a neurosurgeon, this did not constitute a referral to any specific physician, including Dr. Russell. Mr. Lepel did not apply for a change in physician and elected to visit Dr. Russell on a self referral, and we agree that the resulting treatment was unauthorized.
We next address Mr. Lepel’s argument that the Commission erroneously denied his claim for benefits under Ark. Code Ann. § ll-9-505(a) (Repl. 2002), which provides:
(a)(1) Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the Workers’ Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year.
(2) In determining the availability of employment, the continuance in business of the employer shall be considered, and any written rules promulgated by the employer with respect to seniority or the provisions of any collective bargaining agreement with respect to seniority shall control.
Mr. Lepel contends that because the appellee terminated him and unreasonably failed to return him to suitable work within his limitations, the above provision applies.
In making his argument, Mr. Lepel relies on Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.3d 237 (1996), where we held:
Before Ark. Code Ann. § ll-9-505(a) applies several requirements must be met. The employee must prove by a preponderance of the evidence that he sustained a compensable injury; that suitable employment which is within his physical and mental limitations is available with the employer; that the employer has refused to return him to work; and, that the employer’s refusal to return him to work is without reasonable cause.
Id. at 230, 934 S.W.2d at 239. In that case, we further held that the statute requires that, when an employee who has suffered a compensable injury attempts to re-enter the work force, the employer must attempt to facilitate the re-entry by offering additional training to the employee, if needed, and reclassification ofpositions, if necessary. Mr. Lepel asserts that Mr. Walker nor any of the appellee’s employees attempted to assess his job skills or assist in any training. While Mr. Lepel was given a fist of potential jobs, he maintains that he was understandably skeptical about applying for any of the positions given that he had just been terminated by his employer.
We hold that substantial evidence supports the Commission’s decision that Mr. Lepel failed to establish entitlement to benefits under Ark. Code Ann. § 11-9-505(a)(l). We think it significant that appellee returned Mr. Lepel to work following his March 11, 2002 compensable injury and that Mr. Lepel worked all but two weeks over the next thirteen months until he absented himself under the Family Medical Leave Act on April 16, 2003. Furthermore, in Torrey v. City of Fort Smith, supra, we held that the claimant was entitled to such benefits where, after being advised by his employer that there were no jobs within his physical restrictions, the claimant was encouraged to apply for other positions within the city and he applied for two dispatcher positions but was not hired. To the contrary, as found by the Commission in the instant case, Mr. Lepel was offered but failed to take advantage of the opportunity to apply for other positions. Because Mr. Lepel was provided assistance by Mr. Walker in obtaining alternate employment that may have been within his restrictions, but declined to apply for any other jobs, we cannot say that the appellee refused to return him to work. And while Mr. Lepel testified that he elected not to apply for any jobs because he thought it would be useless, this is belied by his stipulation below that his termination had nothing to do with his workers’ compensation claim, as well as the evidence that the elimination of his position was purely a financial decision as opposed to one based on any misconduct or personal animosity.
Mr. Lepel’s remaining argument is that the Commission erred in failing to award temporary total disability benefits beginning from the date of his termination. We disagree. Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002). The evidence in this case demonstrated that when his position was terminated Mr. Lepel was capable of working in some capacity, and in fact had been working for the appellee for an extended period of time following the compensable injury. While Mr. Lepel contends that the appellee thereafter failed to provide any other job within his restrictions, we reiterate that Mr. Lepel failed to apply for any jobs as encouraged by Mr. Walker. Moreover, there was testimony by Mr. Lepel that he frequently climbed Pinnacle Mountain, and climbed it two to three times per week even during the period he was off work for medical reasons immediately before his position was eliminated. He also testified that he intends to go back to work. Given these circumstances, there was substantial evidence to support a finding that Mr. Lepel was not totally incapacitated from earning wages.
Affirmed.
Pittman, C.J., Gladwin, Bird, Crabtree, andBAKER,JJ., agree.
Griffen, Glover, and Roaf, JJ., dissent.
The five weeks that Mr. Lepel was on medical leave between April 16, 2003, and May 21, 2003 are not in issue on this appeal. Mr. Lepel does not claim entitlement to temporary total disability during this period and the Commission has made no ruling on whether this time off was precipitated by a compensable injury. | [
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Wendell L. Griffen Judge.
Randy Tucker appeals from the order of the Pope County Circuit Court that increased his child-support obligation from $45 per week to $1,809.92 per month, based on a net-worth approach, and argues three points for reversal. Office of Child Support Enforcement (OCSE) cross-appeals from the trial court’s refusal to make the modification retroactive to the date of the filing of the petition for modification. We affirm on the direct appeal and reverse and remand on the cross-appeal.
Tucker and his ex-wife, appellee Regina Tucker, were divorced by decree of the trial court on April 30,1997. The decree awarded Regina Tucker custody of the parties’ minor child and ordered Tucker to pay child support of $45 per week.
On October 2, 2003, OCSE intervened and filed a motion to modify Tucker’s child-support obligation. The motion alleged that, since the entry of the decree in 1997, Tucker’s income had increased by more than twenty percent or by more than $100 per month, thereby constituting a material change in circumstances. Tucker denied the material allegations of the motion.
A hearing was held on March 16, 2005. William Lawton, a certified public accountant, testified that he reviewed Tucker’s tax returns and other information as requested by OCSE. From that information, he prepared a worksheet showing Tucker’s monthly expenses to be $8,084. He also said that Tucker’s 2003 Schedule C appeared reasonable, but that it could be used to hide income. According to Lawton, it appeared that Tucker paid his personal living expenses out of his business accounts. He also testified that Tucker may be living on borrowed money because his liabilities (such as loans and lines of credit) increased dramatically over the past five years.
Randy Tucker testified that he was a self-employed contractor and that he had been in the business since 1997. He acknowledged that his financial situation had “substantially changed” since that time. Tucker testified that he paid all of his bills, both business and personal, at the end of each month and that, if he needed money to make the payments, he drew from one of three bank loans or two lines of credit for his business. He also had three credit cards that he used for both business and personal expenses. He stated that he updated his financial statements with the banks at the start of every year and periodically throughout the year, such as when he was going to purchase property for development as a subdivision. Tucker stated that the banks had a lot of faith in his ability to repay the debt.
Tucker listed his family’s monthly expenses as $4,101 and explained that, after his wife’s contributions, he needed to contribute $576 per week to meet the monthly expenses. He said that he tithed approximately $20,000 per year to his church, which was more than ten percent of his income, and that this figure was based on what he made three or four years prior to trial. In an answer to interrogatories, Tucker listed seven vehicles he owned, including two tractors and two all-terrain vehicles. He also testified that he owned two boats, purchased on the lines of credit. He denied having a lavish lifestyle, stating that, other than going to Branson to purchase school clothes, he had taken only one vacation in the last four years.
Ricky Taylor, Tucker’s certified public accountant, testified that he generated a worksheet showing Tucker’s 2003 net income as $509.46 per week, not including losses from Tucker’s farming operation. He said that the calculation of Tucker’s expenses was based on averages of what he spent each month, as well as the tax returns. He confirmed that Tucker paid all of his bills, business and personal, once a month, from'one of his lines of credit, adding that he did not believe that Tucker made as much as he spent.
The trial court issued a letter opinion announcing its decision on July 15, 2005, in which it found that there was a material change in circumstances. The court found that there were discrepancies between Tucker’s testimony and his tax returns to the extent that use of the returns to compute Tucker’s income and child-support obligation would be unreliable. The court then proceeded to use the net-worth approach found in Holland v. United States, 348 U.S. 121 (1954). In using such an approach, the trial court relied on three financial statements, dated August 2003, April 15, 2004, and January 19, 2005, that Tucker issued to banks in the ordinary course of business. The court found that Tucker’s net worth had increased by $214,000 over that period and calculated Tucker’s average monthly income, after excluding income from Tucker’s current wife, to be $12,066.11. Because Tucker’s income exceeded the child-support chart levels, the court applied the child-support guidelines’ percentage for one child (15%), to arrive at a monthly obligation of $1,809.92. The court made the modification retroactive to January 19, 2005, instead of October 3, 2003, as sought by OCSE, because there was no proof offered to enable the court to conduct a net-worth analysis for the two-year period prior to the petition’s filing. This resulted in an arrearage judgment of $9,689.52. Tucker was to pay this arrearage off at the rate of $200 per month. Judgment was entered accordingly.
Tucker argues three points on appeal: (1) that the trial court erred in disregarding his tax returns and applying Internal Revenue Code standards and procedures in determining his disposable income for child-support purposes; (2) that, if the net-worth approach in determining child support is used, this court should clarify or modify the method used by the trial court because it did not present the entire picture, and because the standards and procedures used produced erroneous and unreliable results; and (3) that the trial court erred in awarding an increase in support because such a ruling is clearly contrary to the preponderance of the evidence and creates an undue hardship on Tucker. On cross-appeal, OCSE argues that the trial court erred in not making the modification retroactive to October 2, 2003, the date the motion for modification was filed.
Child-support cases are reviewed de novo on the record. Cole v. Cole, 89 Ark. App. 134, 201 S.W.3d 21 (2005). It is the ultimate task of the trial judge to determine the expendable income of a child-support payor. Id. This income may differ from income for tax purposes. See id.; Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). As a rule, when the amount of child support is at issue, the appellate court will not reverse the trial judge absent an abuse of discretion. McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Cole, supra.
Although Tucker argues that the trial court erred in disregarding his tax returns and applying Internal Revenue Code standards and procedures in determining his disposable income for child-support purposes and contends that the trial court has no discretion to ignore the tax returns, we disagree. The net-worth approach is specifically authorized by the guidelines.
Administrative Order Number 10, Section III(c), concerning child-support guidelines, provides that, for self-employed payors,
support shall be calculated on the last two years’ federal and state income tax returns and on the quarterly estimates for the current year. A self-employed payor’s income should include contributions made to retirement plans, alimony paid and self-employed health insurance paid. . . . Depreciation should be allowed as a deduction only to the extent that it reflects actual decrease in value of an asset. Also, a court shall consider the amount the payor is capable of earning or a net worth approach based on property, life style, etc.
(Emphasis added.) Thus, by the plain terms of Administrative Order No. 10, a trial court is required to consider, in addition to a self-employed payor’s tax returns, either his capacity to earn or a net-worth analysis based on factors such as the payor’s lifestyle and property. However, a net-worth analysis should not be used interchangeably with a payor’s tax returns. Rather, the net-worth method should be used only after a finding that the returns are unreliable. The trial court made such a finding in the present case.
Tucker also argues that, because the Holland Court recognized that the net-worth method was fraught with dangers, that method should not be used in calculating income for child-support purposes. However, the dangers to which the Court was alluding concern its use in criminal cases rather than any inherent flaws in the method itself. We cannot say that the trial court abused its discretion in calculating Tucker’s income by the net-worth method.
In his second point, Tucker contends that, if the net-worth method in determining child support is used, this court should clarify or modify the method used by the trial court because it did not present the entire picture and because the standards and procedures it used produced erroneous and unreliable results. We disagree. We are not required to adopt a specific net-worth analysis or set of factors to be used in such an analysis in order to affirm the trial court in this case. As set forth in Holland, the net-worth method involves establishing a beginning net worth at the start of the relevant period and an ending net worth at the end of the relevant period, and considers living expenses and allowable deductions for the same period. 348 U.S. at 125. Tucker offers no persuasive argument why the same method cannot be used to establish the expendable income of a child-support payor. Nor does he point to any specific errors in the use of that method.
Tucker argues that the trial court should take into account certain items such as depreciation and the fact that he is living on borrowed money. However, these items presumably are considered in the net-worth approach. Any depreciation to vehicles or equipment is taken into account over time as the value of the assets declines. The amount of depreciation deduction to be allowed is within the discretion of the trial court. Gray v. Gray, 67 Ark. App. 202, 994 S.W.2d 506 (1999). Likewise, the use of loans and other forms of credit is also considered in a net-worth approach because the amount of the loan indebtedness, along with all other liabilities, is deducted from the value of Tucker’s assets in arriving at his net worth.
Finally, Tucker argues that the trial court’s ruling is clearly contrary to the preponderance of the evidence and creates an undue hardship on him. The first part of the argument is simply a re-argument of the earlier points that the net-worth approach used by the trial court ignored the tax returns and did not consider certain deductions. As such, it need not be addressed. In the second part of the argument, Tucker, citing Howard v. Wisemon, 38 Ark. App. 27, 826 S.W.2d 314 (1992), argues that the amount of the increase in child support is “devastating” to his family and his business. However, he did not make this argument below. We do not address arguments made for the first time on appeal. Sweeden v. Farmers Ins. Group, 71 Ark. App. 381, 30 S.W.3d 783 (2000).
On cross-appeal, OCSE argues that the trial court erred by not making the modification retroactive to October 3, 2003, the date the petition was filed. This issue is reviewed for an abuse of discretion. Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996). Arkansas Code Annotated section 9-14-107(d) (Supp. 2005) provides that “[a]ny modification of a child-support order that is based on a change in gross income of the noncustodial parent shall be effective as of the date of filing a motion for increase or decrease in child support, unless otherwise ordered by the court.” (Emphasis added.)
The trial court decided not to make the modification retroactive to the date of the petition because, in its view, there was no evidence that enabled it to calculate Tucker’s income for the two-year period prior to the petition’s filing. This view is erroneous. First, there was evidence of the change in Tucker’s income that predated the filing of the petition in the form of financial statements from January 2003 and earlier; however, that evidence was not necessary to perform a net-worth analysis. Second, the trial court’s reasoning that the net worth was not established until January 19, 2005, is inconsistent with using each month within the relevant period to determine the average increase in net worth. It is true that Tucker’s full increase in net worth was not “realized” on his financial records until January 19, 2005, but he presumably enjoyed the benefits of the incremental increases in his income during the months in which they arose.
Thus, logic dictates that the averaging of the increased net worth over the entire calculation period must mean that the average increase applied to each month within the calculation period. To hold otherwise would penalize the child by denying increased support for a period of time in which Tucker actually enjoyed the benefits of his increased net worth, even if that increase did not materialize “on the books” until a later date. Therefore, we reverse the trial court’s decision concerning the effective date of the modification and remand the case to the trial court with instructions to the trial court to enter an order making the modification retroactive to October 3, 2003.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
Robbins and Crabtree, JJ., agree. | [
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Beth Gladden Coulson, Judge.
The appellants, Gerald and Charlotte Johnston, purchased land at a mortgage foreclosure sale. This appeal is from a decree dismissing the appellants’ complaint in equity which sought to reform the property descriptions in certain mortgages, various foreclosure documents, and a commissioner’s deed to reflect lands allegedly omitted by mutual mistake of the appellees. The chancellor dismissed the complaint for want of equity on the grounds that purchasers at a foreclosure sale who are not parties to the mortgage being foreclosed cannot maintain an action for reformation absent some act on the part of the mortgagor causing a bid on the property which would not otherwise had been made. We find that the chancellor erred in dismissing the complaint and reverse and remand.
Beginning sometime in 1976, separate appellee Kenneth Sorrels and his mother, separate appellee Elsie Sorrels, executed a series of mortgages to the First State Bank of Morrilton, Arkansas. Subsequently, Kenneth Sorrels sought a loan from separate appellee Central Arkansas Production Credit Associa tion (CAPCA), which obtained a mortgage on part of the Sorrels property after making the loan and obtaining a release from the bank. CAPCA filed a petition in foreclosure after payments on the loan were not made when due. The decree of foreclosure was entered in December of 1982. All documents pertaining to the foreclosure contained the property description found in CAPCA’s mortgage.
A foreclosure sale was held on January 21, 1983, and the appellants placed the highest bid through an agent. Approximately two years after the foreclosure sale, the appellants discovered that the legal description contained in the mortgages, the foreclosure documents, and the commissioner’s deed did not include a 29.41 acre tract of land which the appellants thought had been part of the land sold at the foreclosure sale. The appellants’ complaint in equity sought reformation of all relevant documents on the theory that, whereas it had been the clear intent of CAPCA and the Sorrels to include the 29.41 acre tract as part of the land being mortgaged, the tract had by mutual mistake been omitted from the legal description in the mortgages and all subsequent documents.
At trial, Don Guess of CAPCA testified that he and Kenneth Sorrels viewed the property to be mortgaged and that Sorrels represented that the land comprising the 29.41 acres was included. Guess also testified that the loan would never have been made had not the 29.41 acre tract and the improvements thereon been subject to the mortgage. Although Guess testified that he made no representations to the appellants as to what land was included in the foreclosure sale, he conceded that he had previously shown the property to others and had represented that the 29.41 acre tract was part of the land to be sold and that he would have made the same representation to the appellants.
Other evidence indicated that Kenneth Sorrels did not claim an interest in the property until after it was discovered that the 29.41 tract was not included in the legal descriptions. Also, there was testimony that Kenneth Sorrels requested that he be given time after the sale to remove certain items from the property now in dispute. While neither the appellants nor the Sorrels attended the sale, the agent bidding on behalf of the appellants testified that representations were made at the sale that the property being sold comprised that part of the Sorrels farm land which would have included the 29.41 acre tract.
The chancellor found that the evidence would have supported an action for reformation on the part of CAPCA. However, he determined that the appellants were not entitled to reformation of the mortgages because they were neither parties to the mortgages nor had they shown that the mortgagors (the Sorrels) engaged in any conduct causing a bid on the property which would not otherwise have been made. We find this to be an unduly restrictive interpretation of the cases governing the right of a purchaser at a foreclosure sale to maintain an action for reformation of documents necessary to his chain of title when: (1) it has been determined that the mortgagor and the mortgagee by mutual mistake omitted certain land from the description in the mortgage instrument, and (2) the evidence presents a question of fact as to whether the purchaser intended to buy the property as described.
It is well established that when land is held pursuant to a deed of trust or mortgage so as to secure a debt, and by mutual mistake the parties have omitted from the legal description a tract of land intended to be conveyed, a party to the mutual mistake who subsequently purchases under a decree of foreclosure is entitled to reformation of the deed of trust or mortgage, the decree, and the commissioner’s deed so as to include the omitted tract. Foster v. Richey, 192 Ark. 683, 93 S.W.2d 1258 (1936); Allen v. McGaughey, 31 Ark. 252 (1876). Testimony warranting such reformation must be clear, concise, and convincing, though it need not be undisputed. Reformation is predicated upon the equitable maxim that equity treats that as done which ought to be done. Foster, supra.
As was noted by the chancellor, the facts before us do not involve a purchaser who as mortgagee, for example, would have been a party to the mutual mistake and thereby be able to establish the element of privity necessary to maintain an action for reformation. Yet, it is equally well settled that the concept of privity does not restrict reformation in this jurisdiction only to those who were parties to the mistake. Commonwealth Building & Loan Association v. Wingo, 189 Ark. 1033, 75 S.W.2d 1008 (1934); Modica v. Combs, 158 Ark. 149, 249 S.W. 567 (1923); Blackburn v. Randolph, 33 Ark. 119 (1878).
In Blackburn, a deed of trust conveying a plantation had been executed so as to secure a debt. The plantation was sold after the debt went unpaid. By mistake, a tract of land had been omitted in the description of the lands in the deed of trust; this omission carried forward into each successive sale of the plantation. The final grantee sought reformation of the deed as against a judgment creditor who had caused an execution to be levied on the omitted tract of land. As to the argument that there was not such privity between the grantee and the original grantor as would permit an action for reformation, our supreme court stated that the equity of the complainants would not fail so long as in each conveyance there had been a mutual mistake whereby each party actually supposed that the particular piece of ground was described when in fact it was not. The court went on to state that:
What is meant when the cases say that the mistake will only be corrected between the original parties and those claiming under them in privity, is, in effect, that the court will not interfere in favor of subsequent purchasers who were simply ignorant of the former mistake and may be presumed to have intended to take by the description used. . . .
33 Ark. at 125.
Modica v. Combs, supra, involved a void description and not an omission; also, the purchaser at the foreclosure sale was the beneficiary under the deed of trust. However, the court permitted reformation by a subvendee of the purchaser at the sale. In discussing Blackburn, the court stated that the rule in this jurisdiction was that the purchaser at a mortgage foreclosure sale under the power contained in the mortgage, and his vendee, were as much entitled to reform for a perpetual mistake in the mortgage constituting his chain of title as any other subvendee. 158 Ark. at 154. Courts of equity would reform a void description in a mortgage “not only at the instance of the mortgagee, but also at the instance of a purchaser at the foreclosure sale under the power or his vendee.” Id. at 154-155.
In Commonwealth Building & Loan Association, supra, the purchaser at a foreclosure sale was allowed to reform a release deed given by a grantor to the grantee who had mortgaged the land being foreclosed. The description in the release deed did not convey the land which the grantor and grantee intended to have released and which the grantee intended to mortgage and the purchaser (mortgagee) intended to buy. The court cited the following language from the Blackburn opinion:
Where a mistake in description of land occurs in a series of conveyances, under such circumstances as would entitle any one of the vendees to a reformation as against his immediate vendor, the equity will work back through all, and entitle the last vendee to a reformation against the original vendor. . . .
189 Ark. at 1037.
In light of the discussion in Blackburn and the requirements set forth in Foster, supra, the following can be said to apply to the right of a purchaser at a foreclosure sale or one claiming under him to maintain an action for reformation of documents necessary to the chain of title. First, the party seeking reformation must be able to introduce such clear, concise, and convincing evidence as would present a question of fact as to whether the omission, void description, or other similar deficiency occurred either by mutual mistake of the parties to the instrument sought to be reformed or by mistake of one of the parties and the inequitable conduct of the other. Second, if the party seeking reformation was not a party to the instrument sought to be reformed, he must be able to introduce additional evidence raising a question of fact as to whether he was simply ignorant of the former mistake and intended to buy the property as described or whether he had assumed, for example, that the particular piece of land was described when in fact it was not.
These requirements having been met, the fact finder must then determine whether as between each successive party there has been such a mutual mistake of fact or mistake by one and inequitable conduct by another as would actually warrant reformation under the facts of the case. Reformation on the part of the purchaser should not be foreclosed simply because the purchaser was not a party to the instrument sought to be reformed or because he did not place his bid in reliance upon some act on the part of the mortgagor. We find that the chancellor erred when having determined that the evidence warranted an action for reformation on the part of CAPCA, he dismissed the appellants’ complaint absent a finding that they were simply ignorant of the mistake and intended to buy the property as described.
Although the appellants argue that under our de novo review we are in a position to decide these issues and enter a final judgment, we find that the chancellor’s superior position as fact finder warrants our remand of the case. Therefore, we reverse and remand to allow the chancellor to enter his findings of fact and such conclusions of law as are not inconsistent with this opinion.
Reversed and remanded.
Corbin, C.J., and Mayfield, J., agree. | [
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James R. Cooper, Judge.
In this workers’ compensation case, the only issue to be decided is whether there is substantial evidence to support the Commission’s finding that the appellee was permanently and totally disabled. We find that there is sufficient evidence and affirm. The appellants also argue that the evidence was insufficient to support the Commission’s finding that the appellee’s injury was non-scheduled. We need not reach this issue in light of the fact that we affirm the Commission’s finding that the appellee was totally and permanently disabled. An employee who suffers a scheduled injury, which proves to be permanently and totally disabling, is not restricted to compensation specified for the scheduled injury, but is entitled to the greater benefits provided for permanent and total disability. Cooper Industrial Products, Inc. v. Worth, 256 Ark. 394, 508 S.W.2d 59 (1974); McNeely v. Clem Mill and Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966).
At the hearing before the administrative law judge, it was undisputed that the appellee’s injury arose out of and in the course of his employment. The appellants paid medical expenses; temporary total disability from the date of injury, October 23, 1982 through February 25, 1985; and fifty weeks of permanent partial disability. The only issue before the administrative law judge was whether the injury was scheduled and the appellee was therefore not entitled to further permanent partial disability. The administrative law judge found that the appellee’s injury was non-scheduled, and assessed a permanent partial disability rating of thirty-five percent to the body as a whole. Both sides appealed to the Commission, and the Commission affirmed the administrative law judge’s opinion with the exception that the Commission found the appellee to be permanently and totally disabled.
In a workers’ compensation case, the appellate court must view and interpret the evidence, and all reasonable inferences deducible therefrom, in the light most favorable to the findings of the Workers’ Compensation Commission and give the testimony its strongest probative force in favor of the action of the Commission. Roberts v. Leo Levi Hospital, 8 Ark. App. 184,649 S.W.2d 402 (1983). Even if the evidence will support a finding contrary to that made by the Commission, the question before the appellate court is whether there is substantial evidence to support the finding made by the Commission. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977).
The appellee, while employed as a pulpwood worker, sustained an injury to his left shoulder. The biceps tendon, which attaches the biceps muscle to the bone, was torn. Surgery was performed on October 27,1982, by Dr. Skagerberg. The shoulder joint was opened up to re-attach the muscle to the bone. After the surgery, the appellee was attended by Dr. Mumme. Dr. Mumme’s progress notes, which were entered into evidence, show that the appellee suffered continual pain in the shoulder, in spite of therapy, medication, and a TENS unit. (A TENS unit is an electric stimulation device used to control and modify some types of pain.) Dr. Mumme felt, however, that the appellee’s shoulder had improved, and on January 6,1984, he noted that the appellee had recovered virtually full range of motion of the left shoulder. On February 28,1984, Dr. Mumme rendered an opinion that the appellee had sustained a twenty-five percent permanent partial impairment to his left shoulder and fifteen percent to the body as a whole.
In the interim, an arthroscopy was performed on the appellee on August 17, 1983. In the operative report, Dr. Mumme noted that the procedure was difficult because of secondary adhesions in the left shoulder. He further noted that he was unable to satisfactorily examine the intra-articular aspect of the shoulder because of tightness and adhesions.
At the recommendation of the appellee’s family physician, the appellee was seen by orthopedic specialist Dr. John Wilson. Dr. Wilson found mild restrictive motion in the shoulder, and gave the appellee a permanent impairment rating of fifteen percent to the upper extremity and nine percent to the body as a whole.
In addition to Drs. Mumme and Wilson, the appellee was also being seen by Dr. Knight, who works with Dr. Mumme at the Holt-Krock Clinic in Fort Smith, Arkansas. Dr. Knight’s findings and impairment ratings were essentially the same as Dr. Mumme’s.
At the hearing, Dr. McBryde, the appellee’s family physician, testified. He stated that he believed the appellee suffered impairment of fifty percent to the shoulder and twenty-five percent to the body as a whole. He testified that the appellee could not lift anything with his left arm, and could only lift fifty percent of normal with his right arm. Dr. McBryde also found an injury to the left elbow which restricted the appellee’s ability to reach with his left arm. Although the doctor was unable to specify any particular incident in which the appellee injured his elbow, he did state that the appellee had not had any problems with the elbow prior to the shoulder injury. The doctor also stated that the appellee’s problems with headaches were attributable to the shoulder. It was his opinion that instability of the neck and shoulder were causing a muscle contraction type headache. Dr. McBryde also found degenerative arthritic changes in the neck, and felt that the arthritis and shoulder injury tended to aggravate each other. The appellee had been suffering from high blood pressure prior to the shoulder injury. Seven days after the injury, the appellee’s blood pressure rose even higher and he required increased medication to control it because his blood pressure has not returned to the pre-injury range. Dr. McBryde testified that part of the reason for the elevated blood pressure was the stress placed on the appellee because of the injury, the associated pain, and financial concerns. Dr. McBryde also discussed the appellee’s prior back injury. At the time of that injury he had been treated by Dr. Wright, who had been the appellee’s family physician prior to Dr. McBryde. As a result of all of the symptoms, Dr. McBryde testified that the appellee’s physical abilities were limited.
The thrust of the appellants’ argument is that the opinions of the orthopedic specialists, Drs. Mumme, Wilson and Knight, should be given greater consideration than that of the family physician. However, that is a matter going to the weight and probative force of the evidence, rather than its substantiality. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). Conflicts in medical testimony are for the Commission to resolve, and when the Commission chooses to accept the testimony of one physician over that of another, this Court is powerless to reverse the decision. Barksdale, supra.
Furthermore, many factors, not just the medical evidence, are to be considered in a determination of wage loss disability. Consideration should be given to the claimant’s age, education, experience, and other matters affecting wage loss, including the degree of pain he endures as a result of the compensable injury. Chism v. Jones, 9 Ark. App. 268, 658 S.W.2d 417 (1983); Hunter Wasson Pulpwood v. Banks, 270 Ark. 404, 605 S.W.2d 753 (Ark. App. 1980).
The appellee testified that he was fifty years old and had not had any job training or education since his graduation from high school in 1954. His work history is limited to heavy manual labor and operating heavy equipment. He testified that he could not return to those jobs because of the pain, weakness, and limited motion in his arm and shoulder. He also stated that he could not sit or stand for long periods of time, could not drive for long periods of time, and that his wife had to assist him with dressing.
The appellee lived in Scott County all of his life with the exception of the six years he was in the Navy. The County Judge, Hon. Clyde Hawkins, testified that the appellee had worked for him before and he knew the appellee to be a hard worker. He also stated that he was familiar with the job market in Scott County and did not know of any job the appellee could perform.
We find that the medical evidence, along with the evidence of the appellee’s job skills, education, and the fact that he still suffers severe pain, supports the Commission’s finding that the appellee is permanently and totally disabled.
Affirmed.
Corbin, C.J., and Cracraft, J., agree. | [
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George K. Cracraft, Judge.
Dow Richard Pursley was convicted of having unlawfully entered and remained on the premises of Dr. William F. Harrison on three successive Fridays. He does not deny his guilt of criminal trespass but contends that it was error under the circumstances in this case for the trial court to refuse to give a proffered instruction on the so-called “choice of evils defense.” We conclude that there was no error and affirm the convictions.
Arkansas Statutes Annotated § 41-504(1) (Repl. 1977) provides as follows:
Conduct which would otherwise constitute an offense is justifiable when:
(a) the conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
(b) the desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.
The commentary to this section states that conduct that would ordinarily be criminal may be excused because of extraordinary attendant circumstances, and that such circumstances permit a comparison of the injury caused by the criminal offense with the public or private injury the actor seeks to prevent. This section, however, is to be narrowly construed and applied. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980). The commentary to this section lists some illustrative situations which might permit recourse to this rule: (1) destruction of buildings or other structures to keep fire from spreading; (2) breaking levees to prevent the flooding of a city, causing, in the process, flooding of an individual’s property; and (3) temporary appropriation of another person’s vehicle to remove a seriously injured person to a hospital. Other similar situations which might give rise to the defense were recognized in Koonce v. State, supra. In all of the illustrative situations set out in the commentary and in Koonce, the actor finds himself in an emergency situation requiring emergency measures which would not be permitted under less urgent circumstances. The evidence in this case, when viewed in the light most favorable to the appellant, bears no similarity to any of these examples.
In order for the choice of evils defense to be available, there must be proof of extraordinary attendant circumstances requiring emergency measures in order to avoid an imminent public or private injury. Here there was no proof of extraordinary attendant circumstances. Appellant lived in Springdale, Arkansas, where he engaged in the practice of counseling. From his experience in counseling young women who had undergone abortions, he had formed a belief that serious psychological consequences could result and that those contemplating abortion should be advised by him of the possible results of and alternatives to such a procedure. On the three Fridays mentioned in the information (and may other prior occasions), he had intentionally come to Fayetteville and stationed himself on public property near the clinic. As women went into the clinic, he followed them onto the private property to express his views to them despite repeatedly being told not to do so. He did not find himself faced with extraordinary or unexpected circumstances requiring a choice of action. Without regard to alternative measures, he had deliberately placed himself near the clinic in anticipation of events which he knew would occur and with his choice of action already determined.
Nor was there proof of an imminent danger of injury to the women. There was no evidence that any of them were either pregnant or had come to the clinic for an abortion. Dr. Harrison testified that he was a physician engaged in the practice of obstetrics and gynecology — “delivering babies and taking care of female reproductive organs.” No evidence that he was not so engaged was offered by the appellant or sought on cross-examination of Dr. Harrison.
It is well settled that, where the evidence does not support an instruction, it should be refused. Even if the instruction contains a correct statement of the law, it is not error for the trial judge to refuse it if there is no basis in the evidence for giving it. Clark v. State, 15 Ark. App. 393, 695 S.W.2d 396 (1985); Wilson v. State, 9 Ark. App. 211, 657 S.W.2d 558 (1983).
Appellant also contends that the trial court erred in excluding evidence of instances of abortion’s harmful results observed by him in his practice as a counselor. He argues that this evidence would establish the injury he was seeking to avoid. In view of our conclusion on the first point, we do not address that argument.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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Melvin Mayfield, Judge.
Two cases are consolidated under one number in this appeal. In one case, the appellant was convicted in a jury trial on August 4, 1986, of breaking or entering and theft of property. He was also charged as a habitual criminal, and after the jury returned a verdict of guilty, the jury was instructed with regard to the habitual criminal charge; evidence of prior convictions was introduced; and after further deliberation, the jury returned a verdict fixing punishment at eight years for breaking or entering and 30 days for theft of property.
The other case involves one of the prior felony convictions introduced in evidence. This is a judgment dated July 1, 1981, which states that appellant entered a plea of guilty to “aggravated robbery with firearm,” and that “imposition of sentence is suspended for ten years,” subject to certain conditions set out in the judgment. At the beginning of the trial on August 4,1986, the judge stated he noticed that a revocation petition had been filed asking that the suspended imposition of sentence entered in July of 1981 be revoked because the conditions of that suspended sentence had been violated. The judge suggested that he consider the revocation petition upon the same evidence presented in the breaking or entering and theft of property case and, after that case was completed, that he then make a decision on the revocation petition.
No objection was made to proceeding as the court suggested, and after the jury had returned a verdict of guilty in the breaking or entering and theft of property case, the court revoked the suspended imposition of sentence entered in 1981 and sentenced the appellant to ten years in that case and ordered that it run consecutive to any sentence fixed by the jury in the breaking or entering and theft of property case.
On appeal, the appellant makes two arguments. First, he contends that the trial judge should have recused because (1) he was the prosecuting attorney when the 1981 aggravated robbery with firearm charge was filed, (2) he negotiated a plea with the appellant’s attorney in that case, and (3) he represented the state when that matter was presented to the court. Second, the appellant says that he was denied due process of law because the same judge, who had previously prosecuted him on the aggravated robbery conviction, determined that his statements to the police, when he was arrested for breaking or entering and theft of property, were voluntary and admissible for use by the jury to convict appellant; and that the judge himself used the statements and the conviction to revoke appellant’s suspended sentence.
We first consider the question of whether we should reverse the conviction for breaking or entering and theft of property. Appellant’s argument on that issue is based upon the proposition that the only evidence linking him to the breaking or entering consisted of his own statements which the trial judge should have suppressed.
In our opinion, even without appellant’s statements, there was ample evidence to support his conviction for breaking or entering and theft of property. The manager of a convenience store in West Memphis testified that on the morning involved he got to the store about 5:30, and upon going outside the building on the west side, he saw a man putting a Weed Eater down on the ground behind a building across the street. The manager identified the Weed Eater, which was produced in court, and testified that it was kept in a storage building at the rear of the store. He said he knew it was in the storage building at 6:30 the night before, and that the next morning after he saw the man with it, he called the police and gave them a description of the man. An officer testified that he arrested appellant in the vicinity of the store and that appellant matched the description, given by the radio dispatcher, of a man running from the location of the store.
In addition to the above testimony, the officer who first stopped the appellant testified that appellant asked what he had done and was told that someone matching his description had just taken something from the convenience store. The officer testified that appellant immediately said that the door was open, that he took the Weed Eater, and that he was going to sell it and buy some dope. The trial judge held that this was a voluntary and spontaneous statement, that it was not made in response to questioning, and that it should not be suppressed.
Appellant argues, however, that because the judge had been the prosecuting attorney when appellant was convicted in 1981, the appellant was denied due process of law. We do not understand that it is claimed that the judge was actually biased or prejudiced against appellant. Indeed, appellant’s brief states that apparently neither the judge nor anyone else even remembered that he was the prosecuting attorney in 1981. In fact, the only evidence in that respect was his signature on the guilty plea and sentence recommendation filed in the 1981 case. The appellant’s brief specifically states that “nobody could be expected to remember every case he handled” but that this case should be reversed because of the “potential bias” that is present. This is the “suggested” violation of due process involved in this case.
Appellant relies upon Dyas v. Lockhart, 705 F.2d 993 (8th Cir. 1983) and Dyas v. Lockhart, 771 F.2d 1144 (8th Cir. 1985). The first opinion remanded the district court’s denial of writ of habeas corpus for that court to make a determination of whether the petitioner had personally waived a state judge’s disqualification, resulting from his relationship to the prosecuting attorney and his deputies, and if the disqualification was not waived, the district court was to provide the petitioner a hearing in which he would have the opportunity to prove that the state judge was actually biased. Upon remand, the district court found that petitioner did not knowingly waive his objection to the judge’s disqualification, although he knew of the judge’s relationship to the prosecuting attorneys, but the court found no actual prejudice or bias against the petitioner. In the second opinion, the United States Court of Appeals again remanded the case to the district court. This time the district court was directed to consider certain specified actions of the state trial judge along with any other instances of prejudice in the record suggested by the petitioner.
We do not believe the above cases mean that we should reverse the instant case. The actions of the state trial judge that the court in Dyas specified should be reviewed for actual bias or prejudice are not even present in the instant case. Applicable here is the case of Jordon v. State, 274 Ark. 572, 626 S.W.2d 947 (1982), where the Arkansas Supreme Court held that the trial judge was not disqualified because he had actively prosecuted the appellant in three of the four prior felony convictions relied on for the enhancement of punishment. Jordon also pointed out that the Arkansas Constitution, article 7, section 20, providing that a judge shall not preside in a case in which he has been of counsel, relates to the case being tried. The judge in the instant case was never “of counsel” in the breaking or entering and theft case now under discussion. Also Canon 3C(b) of the Code of Judicial Conduct, see 35 Ark. L. Rev. 247, 256 (1981), was not violated in this case since the judge here had never “served as lawyer in the matter in controversy.” (The “controversy” is the breaking or entering and theft of property case now under discussion.) The verdict of guilty was returned by the jury and the sentence was fixed by that verdict. We find no actual or potential bias in the case under discussion that could offend due process.
The revocation, however, presents a different situation. That matter was decided by the trial judge, not by a jury. The judge revoked the suspended imposition of sentence judgment entered in July 1981 in the aggravated robbery with firearm case; he sentenced the appellant to ten years in the Arkansas Department of Correction upon the revocation of that suspended sentence; he was the prosecuting attorney who represented the State of Arkansas at the time the suspended imposition of sentence was entered in July of 1981; and he signed the plea and sentence recommendation filed in that case and agreed to by the defendant and his counsel.
Canon 3C(b) of the Code of Judicial Conduct provides that a judge should disqualify in a proceeding “in which his impartiality might reasonably be questioned, including but not limited to instances where he served as a lawyer in the matter in controversy. . . .” Clearly the revocation hearing falls within this provision. In Adams v. State, 269 Ark. 548, 601 S.W.2d 881 (1980), the Supreme Court of Arkansas said of the provision pertaining to a judge’s relationship to a lawyer in the case being tried:
We hold that Canon 3C is applicable in criminal cases as well as civil cases, that it is applicable at the arraignment stage of a criminal proceeding, that it applies even though the prosecuting attorney and circuit judge each is a duly elected public official, that no request to disqualify and no objection for failure to disqualify is necessary to be made either by a trial attorney or by a party representing himself, that the trial judge must take the initiative to disqualify or, in the alternative, to comply with the procedure set out in Canon 3D, that this Court can, on its own initiative, examine the record to notice compliance or noncompliance, and that failure to comply is reversible error.
269 Ark. at 549-50.
Although we do not mean to impugn the integrity of the trial judge, we believe the law simply required a disqualification under the circumstances relating to the revocation case. We, therefore, affirm the judgment in the breaking or entering and theft of property case (Circuit Court N o. CR-86-122) but reverse the judgment in the revocation case (Circuit Court No. CR-80248B) and remand that matter to the trial court.
Corbin, C.J., Cooper and Cracraft, JJ., concur. | [
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