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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission holding appellee entitled to continuing temporary total disability and medical treatment and authorizing a change of physicians.
The appellee suffered a fractured vertebra on June 22,1984, when a plywood board on which he was standing on a roof broke and he fell twenty-two feet to the ground, landing first on his heels then on his buttocks. At the first hearing, held November 12, 1984, it was determined that appellee was entitled to temporary total disability benefits and it was agreed that he would be examined by an orthopedic surgeon, Dr. Austin Grimes. A subsequent hearing was held on July 24,1985, at which appellee contended he was entitled to continuing temporary total disability benefits and medical care. Appellant contended appellee’s healing period had ended and that a change of physicians from his treating physician to Dr. Jeff Carson, a chiropractor, was unauthorized.
The administrative law judge held that even though appellee admitted having worked for a couple of months between the first and second hearings, his injury severely limited his social and work activities and he was entitled to further medical treatment and temporary total disability, excepting the dates he had worked. The law judge also held that the change to Dr. Carson was authorized because appellee had followed the statutorily outlined procedure. The full Commission affirmed. For reversal, appellant argues that the decision was not supported by substantial evidence and the facts do not support the Commission’s order that appellee was entitled to a retroactive change of physicians.
The record shows that subsequent to his compensable injury appellee contracted infectious mononucleosis. He admitted that delayed his healing period, but he also testified that he still suffered from severe pain and stiffness in his back. His girlfriend testified that some mornings the appellee was so stiff and sore she had to help him get up, and on one occasion, she had to physically carry him to the car and take him to the doctor because his legs were asleep. Appellee admitted he had attempted to work, first for a grocer, then for an automobile body repair shop. He testified that he tried to work because he was short of money but was forced to quit each job because of physical limitations caused by his injury and because the work was so strenuous.
Various doctors who submitted medical reports on appellee’s condition confirmed the fractured vertebra but indicated it should have healed. One doctor stated that he could not understand why appellee was still having pain and suggested it might be caused by other reasons; however, he did not speculate as to what those other reasons might be. At the time of the last hearing, appellee was not on medication and was consulting only the chiropractor, Dr. Carson, who, he insisted, was the only doctor who had improved his condition at all since his injury.
Appellant first argues that the Commission’s decision awarding temporary total disability is not supported by substantial evidence and that fair minded persons with the same evidence before them could not have reached the same conclusion. Stephens v. St. Vincent Infirmary, 15 Ark. App. 209, 691 S.W.2d 190 (1985); Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 (1985).
Findings of the Workers’ Compensation Commission are viewed in the light most favorable to the decision reached by the Commission; the testimony is given its strongest probative force in favor of the action of the Commission; and the decision carries the weight of a jury verdict. Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983). The Commission has the duty of weighing medical evidence as it does any other evidence and if that evidence is conflicting, the resolution of the conflict is a question of fact for the Commission. Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981). After a thorough review of the record, we cannot say the decision awarding temporary total disability is not supported by substantial evidence.
Next, appellant argues the facts do not support the Commission’s decision that the appellee was entitled to retroactive approval of a change from his medical doctor to a chiropractor. Appellant cites Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984), and American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983), which held that under Act 290 of 1981, which amended Ark. Stat. Ann. § 81-1311, the Commission no longer had broad discretion to retroactively authorize a change of physicians. However, this argument ignores Act 444 of 1983, which added a specific provision authorizing a change to a chiropractor without seeking permission of the Commission. That addition is found in Ark. Stat. Ann. § 81-1311 (Supp. 1985) and states “if the change desired by the claimant is to a chiropractic physician, the claimant may make the change by giving advance written notification to the employer or carrier.”
The record contains a copy of a notice stating that appellee desires to change physicians from Dr. Grimes to Dr. J. J. Carson, and the receipt of the notice is acknowledged by the signature of appellee’s employer, Tony Usdrowski. Although the notice is undated, appellee testified he began seeing Dr. Carson on March 13,1985, and was given the notice to take to his employer who then signed it. The Commission found that the provisions of Act 444 of 1983 had been sufficiently complied with and we find substantial evidence in the record to support this finding of fact.
Affirmed.
Coulson and Cooper, JJ., agree. | [
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Beth Gladden Coulson, Judge.
On July 17, 1985, the appellant, David Samuel Carson, entered a plea of nolo con-tendere to the charge of battery in the second degree. The trial court suspended the imposition of sentence for a period of five years subject to certain conditions, including the requirement that the appellant not violate any federal, state, or municipal law. The State filed a petition to revoke on July 8,1986, alleging that the appellant had committed the offenses of manufacturing a controlled substance, possession of marijuana with intent to deliver, and possession of drug paraphernalia. The appellant filed a motion to suppress certain evidence on the grounds that the search warrant and underlying affidavit were defective because they contained no facts bearing upon the reliability of the State’s confidential informant.
The trial court ruled that the exclusionary rule did not apply to revocation proceedings and that, even if the warrant was deficient, those executing the search in question had acted in “good faith” reliance upon the facial validity of the warrant. The appellant was found to be in violation of the terms and conditions of his suspended imposition of sentence and was sentenced to five years imprisonment with two years suspended. We find that the trial court’s ruling was in accord with the prevailing law and affirm.
It is now settled in this jurisdiction that the exclusionary rule does not apply in revocation proceedings, at least where there has been a good faith effort to comply with the law. In Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980), we stated:
[W]e adopt the rule which we consider to be consistent with Ark. Stat. Ann. § 41 -1209(3)(b) (Repl. 1977) and with the holding in Morrissey v. Brewer, 408 U.S. 471 (1972), that the trial court may permit the introduction of any relevant evidence of an alleged violation of the conditions of probation, including evidence that might be subject to a motion to suppress under the doctrine of Mapp v. Ohio, at least where there has been a good-faith effort to comply with the law. This is the rule of the great majority of jurisdictions.
270 Ark. at 638.
The refusal to apply the exclusionary rule in cases where the search was conducted in good faith reliance upon a warrant later proven defective serves as an accommodation of the societal interests in requiring strict compliance with conditions of probation and in deterring illegal police action. Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980), cert. denied, 449 U.S. 1124 (1981). See Queen v. State, 271 Ark. 929, 612 S.W.2d 95, cert. denied, 454 U.S. 963 (1981); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). The good faith exception, as adopted in McFarland v. State, 284 Ark. 533, 684 S.W.2d 233 (1985), applies to those situations where the warrant and underlying affidavit fail to set forth those facts which would establish the reliability of the informant who provided the hearsay information which prompted the State’s decision to obtain the warrant. Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987).
In a hearing on a petition to revoke, the burden is upon the State to prove the violation of a condition of the suspended sentence, and, on appellate review, the trial court’s findings are upheld unless they are clearly against a preponderance of the evidence. Felix v. State, 20 Ark. App. 44, 723 S.W.2d 839 (1987). The trial court’s findings as to the application of the good faith exception in this case are not clearly against a preponderance of the evidence. For the foregoing reasons, we find no merit in the appellant’s contention that the court erred in denying the motion to suppress, and we affirm.
Affirmed.
Mayfield and Jennings, JJ., agree. | [
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John E. Jennings, Judge.
Randall Burkett was convicted in Polk County Circuit Court of possession with intent to deliver a controlled substance (marijuana) and possession of drug paraphernalia and was sentenced to a total of fourteen years in the Department of Correction. For reversal Burkett argues that the trial court erred in admitting in evidence a statement made by his girlfriend, Sherry Smith, and that the evidence is insufficient to support the verdict. We agree that the out-of-court statement should not have been received in evidence and reverse and remand for new trial.
We first address the issue of the sufficiency of the evidence. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In determining the sufficiency of the evidence we consider all of the evidence, including that which may have been erroneously admitted. Enoch v. State, 37 Ark. App. 103, 826 S.W.2d 291 (1992). We will affirm on the question of the sufficiency if the jury’s verdict is supported by substantial evidence. Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1992). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resorting to speculation or conjecture. Kellogg v. State, 37 Ark. App. 162, 827 S.W.2d 166 (1992).
The evidence at trial was that the Polk County Sheriff and other law enforcement officers went to an apartment in Mena at 415 Mena Street on October 16, 1990, to serve a felony warrant on the defendant. The only person in the apartment was Sherry Smith. Ms. Smith signed a consent to search and the officers found a large quantity of marijuana under a mattress in the bedroom. In a kitchen cabinet they also found two packages of cigarette rolling papers, one pair of folding type scissors (which, according to an officer, was used to trim hand-rolled cigarettes), a box of pills, a glass vial containing “a clear rock substance,” a brass type container, various Ziplock bags “common to the delivery of marijuana,” a pipe lighter, and $80.00 in cash.
Sherry Smith was called as a witness by the State, but claimed her privilege against self-incrimination under the Fifth Amendment to the United States Constitution. The trial court ruled that she was unavailable as a witness under Rule 804(a)(1) of the Arkansas Rules of Evidence and admitted into evidence her out-of-court statement as a statement against interest under Rule 804(b)(3). Her statement was:
I live at Apt. 5,415 Mena Street and live with Randall D. Burkett. We are not married, but have a child, Courtney Smith, age 1 year old. The marijuana found by Officer Nelson in my apartment is not mine, nor do I use dope. The drugs found in my apartment is Randy Burkett’s. I do not sell drugs and have never sold any drugs. I would always go outside when Randy sold drugs. I know some of the guys who come to our house to pick up marijuana, but I never delivered anything to them.
We hold that the evidence was sufficient to support the jury’s verdict. According to the evidence the only persons living in the apartment on Mena Street were Randall Burkett, Sherry Smith, and their one-year-old baby. According to Ms. Smith’s statement the marijuana in the apartment belonged to Burkett and he was in the business of selling it. This evidence is sufficient to support the jury’s verdict on the possession count.
While the evidence linking the defendant with the drug paraphernalia is circumstantial, we think the jury could properly infer that the paraphernalia belonged to the defendant from his joint occupancy of the apartment coupled with Ms. Smith’s statement that he was selling marijuana from time to time. We have said many times that the law makes no distinction between direct and circumstantial evidence. Duncan v. State, 38 Ark. App. 47, 828 S.W.2d 847 (1992).
The case must, however, be reversed on the issue of the admissibility of Sherry Smith’s statement. We find no fault with the circuit judge’s conclusion that the witness was unavailable within the meaning of Rule 804 nor with his conclusion that the statement qualified generally as a “statement against interest.” But the case is clearly governed by the last sentence of Rule 804(b)(3): “A statement or confession offered against the accused in a criminal case, made by a co-defendant or other person implicating both himself and the accused, is not within this exception.” In the case at bar Sherry Smith’s statement was “offered against the accused in a criminal case” and it implicated both herself and the defendant. The statement was therefore not within the hearsay exception and its admission requires reversal.
Reversed and Remanded.
Cooper and Danielson, JJ., agree.
Ms. Smith and the defendant were married on December 4, 1990. | [
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Elizabeth W. Danielson, Judge.
Appellant Fred Allen was convicted by a jury of arson and sentenced to six years imprisonment. He argues on appeal that the trial court erred in denying his motion for a directed verdict based on the insufficiency of the State’s evidence. We affirm.
In reviewing the denial of a motion for directed verdict, we consider the evidence in the light most favorable to the appellee and affirm the trial court’s decision if there is substantial evidence to support the conviction. Safely v. State, 32 Ark. App. 111, 797 S.W.2d 468 (1990). Substantial evidence is evidence 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. Id.
A person commits arson if he starts a fire or causes an explosion with the purpose of destroying or otherwise damaging an occupiable structure that is the property of another person. Ark. Code Ann. § 5-38-301 (Supp. 1991). The State alleged that appellant started a fire in the home of his parents with the purpose of destroying or damaging the home, and that the fire caused damage in an amount between $20,000 and $100,000. Appellant argues that the State failed to put on evidence sufficient to overcome the common law presumption against arson.
In Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989), the supreme court stated that in order to overcome the common law presumption against arson, the State must prove not only the burning of the building, but also that it was burned by the willful act of some person criminally responsible for his acts, and not by natural or accidental causes. 300 Ark. at 377. At appellant’s trial, the State presented the testimony of Linda Cook, a neighbor of appellant’s parents, who testified that she saw appellant and his wife, Becky, having what she described as a “deep conversation” on the night of the fire. She said after appellant spoke on the telephone a couple of times, Becky left and appellant appeared to be “aggravated.” After this, Ms. Cook saw appellant come and go from the house four or five times, driving fast and “throwing gravel.” The second to the last time Ms. Cook saw appellant come back carrying a sack. The bedroom light went on and off, then the light in the kitchen. The last time appellant left, he turned out all the lights and sped away. L. G. Caldwell, another neighbor, also testified that around that same time appellant was going in and out a lot, “racing around up and down the streets.” Shortly after appellant left the last time, both witnesses heard sirens and saw smoke coming from the Allen residence.
Becky Allen testified that appellant had been drinking the night of the fire and that they had argued because he wanted to use her car. She also testified that when she saw Mr. and Mrs. Allen, appellant’s parents, the next morning, Mr. Allen said, “He’s burned our home,” and Mrs. Allen said, “I can’t believe he’s done this to us.” Both of appellant’s parents denied making these statements.
The State also presented the testimony of expert witness Lieutenant Harvis Jacks, an inspector with the Little Rock Fire Department. Lt. Jacks testified that he was called in on the case due to the suspicious nature of the fire. The house was locked when firemen arrived and a bedroom had been ransacked. Lt. Jacks investigated this bedroom and determined that a mattress in the room was the point of origin of the fire. He described the fire in the mattress as a free-burning fire, which occurs when something is ignited on top of the mattress. Due to the nature of the fire and the surrounding circumstances, Lt. Jacks believed the fire was intentionally set. He investigated the scene for any other possible cause of the fire and could find none. However, he did find a partially used bottle of charcoal lighter fluid in the dining area of the house.
Considering all the testimony, the evidence presented by the State is sufficient to meet the requirements set forth in Ross v. State, 300 Ark. 369, 779 S.W.2d 161, to overcome the common law presumption against arson. We cannot say the trial court erred in denying appellant’s motion for a directed verdict.
Affirmed.
Cooper and Jennings, JJ., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a judgment of Ashley County Chancery Court, Juvenile Division, which found appellant to be a delinquent juvenile because he had committed rape, theft of property, breaking or entering, and criminal mischief. Appellant was committed to the Pine Bluff Youth Services Center, a secure detention facility operated by the Arkansas Youth Services Board.
Appellant argues the trial court erred in denying his motion for directed verdict on the charge of rape, and in allowing the prosecutor to ask the victim leading questions on the subject of “sex” and “sexual intercourse.”
A motion for a directed verdict is a challenge to the sufficiency of the evidence. McIntosh v. State, 296 Ark. 167, 753 S.W.2d 273 (1988). In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the decision of the trier of fact. Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989); Ryan, supra.
Appellant was adjudged a delinquent juvenile because of rape by forcible compulsion. Arkansas Code Annotated §5-14-103(a)(1) (1987) provides a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Both deviate sexual activity and sexual intercourse require penetration “however slight.” Ark. Code Ann. § 5-14-101(1) and (9) (1987).
Essentially the appellant argues there was insufficient evidence of penetration to support his conviction. He argues the victim provided no details to substantiate her conclusion that she was raped; that her statements were ambiguous and conclusory; that there was no physical evidence to corroborate her testimony; and that it is reasonable to conclude the victim might equate a physical attack with rape.
In Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986), our supreme court stated:
The testimony of the alleged victim which shows penetration is enough for conviction. Penetration can be shown by circumstantial evidence, and if that evidence gives rise to more than a mere suspicion, and the inference that might reasonably have been deduced from it would leave little room for doubt, that is sufficient.
290 Ark. at 385 (citations omitted).
Here the 87-year-old victim testified that appellant grabbed her and commenced beating her; dragged her into the house and then raped her. She said she begged him to behave and to stop; that he raped her in the kitchen and in the living room; and that he had sex with her. The victim testified that she was a married woman; that she had sex with her husband during the years of her marriage; that she understood what it meant for someone to have sex; that this is what happened between her and the appellant; and that she thought appellant finished the sex act because he was “up there long enough.” She testified further that while the sex act was going on her dress was completely off.
A number of courts have held similar testimony sufficient to constitute evidence of penetration. In State v. Golden, 430 A.2d 433 (R.I. 1981), the victim, a twenty-three-year-old woman, testified that the appellant said the victim was going to “give him sex.” A struggle ensued and the victim was cut severely. The victim’s recollection was somewhat vague, but she testified the next thing she knew the appellant was on top of her. Three neighborhood youths were in the vicinity. One of them, Alan, testified that he saw the victim and appellant “having sex” and the appellant “going up and down” on the victim; the youths informed Alan’s grandmother that they had seen some girl get “raped.” And the first officer on the scene testified they “appeared to be having intercourse.” The court stated that the victim had stated on several occasions during her testimony that the defendant “had intercourse” and “forceful * * * forcibly [sic] sex” with her and held that when one of understanding testifies to a completed act of sexual intercourse, it has been held to be sufficient proof of penetration. 430 A.2d 436-37.
In State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968), the victim testified the defendant told her to remove her pants, she became hysterical, and then felt a blow on the head. Thereafter she didn’t remember what happened until she came to and “he was in the act of raping me.” The court held that the victim’s statement that when she regained consciousness the appellant was in the act of raping her was merely her way of saying he was having intercourse with her; she was not expressing her opinion of what happened; but was stating in shorthand fashion her version of the events to which she had already testified.
In State v. Ashford, 301 N.C. 512, 272 S.E.2d 126 (1980), the state argued that the victim testified the defendant had “intercourse” and “sex” with her and that these terms are sufficient as shorthand statements of fact on the issue of penetration. The Supreme Court of North Carolina agreed and held the testimony sufficient to support a finding by the jury that there was penetration.
In State v. Brown, 100 N.M. 726, 676 P.2d 253 (1984), the victim died when after the attack the appellant abandoned her injured, helpless, and unconscious on a winter night. On appeal, the appellant claimed there was a failure of proof of penetration to support his conviction. Nevertheless the court held evidence that the appellant had assisted two co-defendants in forcibly removing the victim’s clothing and “then each in turn removed their pants and laid on top of the victim’s unclothed body” sufficient for the jury to have reached a reasonable conclusion that the appellant did penetrate the victim.
In State v. Steinbrink, 297 N.W.2d 291 (Minn. 1980),a 15-year-old victim testified that “sexual intercourse” occurred, but she was not asked to explain what she meant by “sexual intercourse.” The appellate court held that its examination of the record “convinces us” that the victim knew the meaning of the terms (“making love” and “sexual intercourse”) which she used to describe the act of penetration.
And in Williams v. Commonwealth, 202 Ky. 664, 261 S.W. 18(1924), a 16-year-old victim testified the appellant took her off in the woods; that they slept on the ground all night; that they had sexual intercourse; and that she was then 14 years old. The court held:
A fact may be proved by circumstances no less than by words, and this rule is applied to the question of penetration just as it is in other questions of fact arising in criminal cases. Here the parties went to the woods for this purpose; the witness testified they stayed on the ground all night, and defendant got on top of her and had sexual intercourse with her two or three times that night. Certainly a jury giving this evidence reasonable effect did not need to be told that there was penetration of the female parts. This was the purpose of the whole adventure, and it must be presumed that the witness used the words “sexual intercourse” in their ordinary sense.
202 Ky. at 665, 261 S.W. at 19.
Although appellant in the instant case argues the evidence was ambiguous and conclusory, the evidence in this case rests upon the credibility of the victim, and while the victim, a lady of advanced age, might have been a little confused, it is the job of the trier of fact to resolve any contradictions, conflicts, and inconsistencies in a witness’s testimony. Franklin v. State, 308 Ark. 539, 825 S.W.2d 840 (1992). The trial judge, who was the trier of fact in the instant case, stated that he believed the victim’s testimony that the appellant “raped” her and had “sex” with her was given in its “ordinary, common, everyday sense, that anybody would understand,” and the judge overruled appellant’s motions for a directed verdict and found that he had committed the offense of rape. We think the evidence was for the trial judge to evaluate. The victim said she had sex with her husband during the years of their marriage, that she knew what that means, and she said “that’s what happened” between her and the appellant. We think there is substantial evidence to support the trial judge’s decision.
Appellant also argues the trial court erred in allowing the prosecuting attorney to ask the victim leading questions on the subject of “sex” and “sexual intercourse.” Appellant argues that the victim’s confusion should not entitle the prosecuting attorney to advise the victim what the term “rape” means.
During direct' examination the following exchange took place between the victim and the prosecutor:
Q All right. After the beating was happening, what happened next?
A Well, you know what he did.
Q Yes, ma’am. But you have got to tell the Court what he did.
A Yes, sir. Okay. Y es, sir. He raped me. He surely did. Y es, sir.
Later, the following exchange took place:
Q You say he raped you. Tell the judge exactly what that meant.
A Going with you.
Q Well, rape normally means a sex act. Did he—
A Yes, sir. Uh-huh.
Q Did he have sex with you?
A Yes, sir.
At this point, appellant’s attorney objected on the basis that the questions were leading. The trial judge responded that the prosecutor was simply trying to have the victim define what she meant by rape.
Assuming, however, that some questions asked by the prosecutor were leading questions, Ark. R. Evid. 611(c) allows the trial judge some discretion in permitting leading questions, and it has been said that “it is always in the sound discretion of the trial judge to permit a witness to be asked leading questions on direct examination.” Hamblin v. State, 268 Ark. 497, 501, 597 S.W.2d 589 (1980). See also Scantling v. State, 271 Ark. 678, 609 S.W.2d 925 (1981). Here, the victim was 87 years of age. The transcript shows that she had some difficulty understanding, and she was reluctant to answer questions on a subject not normally discussed in public. Under the circumstances, we cannot find that the trial judge abused his discretion.
Affirmed.
Cracraft, C.J., and Rogers, J., agree. | [
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John E. Jennings, Judge.
In this workers’ compensation case Purolator Courier, the employer, appeals from an order of the Commission holding that Billy Darrell Chancey was entitled to additional temporary total disability benefits; that Chancey sustained permanent partial disability of sixty percent to the body as a whole; and that the Second Injury Fund had no liability on the claim and was dismissed. Appellant argues that the “Commission erred in finding that Chancey’s poliomyelitis or encephalitis constituted a ‘latent condition’ thereby relieving the Second Injury Fund of Liability.” We disagree and affirm.
While working for appellant as a truck driver on January 2, 1985, Chancey slipped and fell from the running board of his van and hurt his back. At the time Chancey was thirty-nine years old. He saw a Dr. McDaniel, who referred him to Dr. Kaplan, a neurosurgeon. After a week of hospitalization and tests, Dr. Kaplan’s diagnosis was lumbar strain and radiculitis. Chancey continued to experience back pain, for which he took Darvocet and other pain medication. After six months of conservative treatment, Chancey was referred to the Baptist Pain Clinic in Memphis, Tennessee, where he stayed as an in-patient for six weeks under the care of Dr. William C. North. After discharge in September 1985, he continued to return for regular visits and continued taking pain medication. Follow-up notes by Dr. North indicate that Chancey continued to experience pain and weakness.
Dr. Kaplan’s discharge summary dated January 24, 1985, noted that
[ Chancey] may have had polio when he was eleven years old. . . . [h]e awakened and was very ill one morning. He stated that the could move only his left upper extremity. His left upper extremity has been larger than his right and his left lower extremity has been larger than his right lower extremity since he had this central nervous inflammation when he was eleven years old.
Old history of central nervous infection, probably polio when eleven years old.
After a follow-up visit on April 5,1985, Dr. Kaplan sent a letter to Dr. McDaniel dated April 8, 1985, noting that
[ Chancey] had mild spasticity and atrophy of his right extremities, mildly impaired alternate motion rate on the right, and questionable weakness of his right extremities — all probably related to childhood central nervous system disease.
A “Physical Therapy Initial Evaluation — Pain Unit” document dated August 12, 1985, shows that “Pt. states he has recently been told he had polio as a child.” Dr. North’s discharge summary dated September 23, 1985, states:
Preadmission Diagnosis:
1. Low back pain
2. Psychological factors contributing to low back pain.
Discharge Diagnosis:
1. Clinical myofascitis of the lumbar muscles.
Secondary Diagnosis:
1. Psychological factors affecting medical illness.
2. Post-poliomyelitis.
Past Medical History:
He had polio in his childhood. There is a minimal residual rightsided weakness.
A pain center office note dated July 23, 1986, by Dr. Martin Fodiman states, “The patient’s chief problem is myofascitis of the lumbar muscles and post poliomyelitis syndrome, also psychological factors effecting his medical illness.” In a letter dated August 7, 1986, Dr. North stated:
Mr. Chancey is unique in that his injury coincided with the natural course of old poliomyelitis where there is gradual deterioration of muscle strength. In the absence of some precipitating cause which results in a significant period of time in which muscles are not used, this deterioration is generally so gradual that it is not recognized as being a factor in the aging process.
It is our impression that Mr. Chancey was inactive for so long that to rehabilitate his muscles, which is always a very slow process, required a long period of time. As a result of the exercise program Mr. Chancey has a muscle imbalance which is marked and accentuates his disability. He has made considerable progress in dealing with this issue. He appears to us to be extremely well motivated, much better than many of our patients. However, it will be at least two or three years before Mr. Chancey will have learned to function within the limitations imposed by his poliomyelitis deficits and the effects of the injury.
Notes from an examination by Dr. Dillard Denson dated June 21, 1988, recount Chancey’s history of his childhood illness as well as the results of the examination. Those notes show, “IMPRESSION: 1. Polioencephalitis; 2. Possible poliomyelitis; 3. Post-polio syndrome.”
A letter from Dr. Stevenson Flanigan dated August 9,1988, states:
I believe [Chancey] has been a victim of a polio-my-eloencephalitis that was likely the disorder with which he was afflicted as a youngster. The pain and limitations identified with the pain are likely an aggravation of the condition with which he was functionally affected until the time of his accident. Apart from the restricted range of movements associated with contractors and possibly a mild degree of spasticity, there is no objective indication of an alteration in his functional capacity that could be attributed to the accident.
During continued treatment by Dr. North, Chancey underwent a vocational assessment with favorable results and was recom mended for vocational rehabilitation. After a return visit on June 17,1987, Chancey was given a prescription for Xanax, which he took while continuing with other medication for pain. A progress note dated March 23, 1988, indicates that the pain clinic had done all they could for him. A letter from Dr. North dated June 15, 1988, stated:
I should like to briefly summarize Mr. Chancey’s situation. He carries a diagnosis of:
(1) Chronic lumbar myofascitis secondary to injury
(2) Right lower extremity in back weakness secondary to encephalitis
(3) Psychological factors affecting medical illness
All three of these diagnoses are interrelated and perhaps causally related. The low back injury which he sustained is not an unusual injury. However, the effects of it and the response to therapy were not as dramatic as would probably have occurred had he not had the residual weakness to begin with. Finally, the combination of the latent neuro-muscular problem coupled with the failure to respond effectively to therapy has led him to a situation of anxiety and depression that is related to his inability to perform his usual tasks.
We feel that he has probably received maximum medical benefit from our therapy. Evaluation of his physical findings which include atrophy of the muscles of the right lower leg, limitation of motion of the right knee and ankle, and pain associated with the changes in the knee and spine joints, give him an impairment of 50% of the right lower extremity which translates into 20 % impairment of the whole person. He will need continuing supervision of an exercise program to maintain his muscle strength. He also will need some medication. It is my understanding that he has moved from the Memphis area to Little Rock.
Could you set him up with a local physician for maintenance care? Enclosed is a copy of medication record. Please give Mr. Chancey a call when this has been arranged.
I am sorry that we cannot do more for Mr. Chancey but I do not believe that there is anything further that can be done to improve his function apart from being able to find a job that will fit within his limitations of motions and strength and to let him improve his earnings and therefore his outlook on life. •
In the August 9,1988, letter Dr. Flanigan noted that one of Chancey’s major problems was habitual use of Motrin, Darvocet N, Xanax, and Halcion, and recommended professional help in withdrawal from those drugs. Chancey was successfully treated at the VA for his substance dependency in April 1989.
At the hearing, Chancey testified that when he was about eleven years old he woke up one morning unable to move anything except his left arm. He was examined at a hospital and released. After a few weeks of chiropractic treatment he got better and was able to walk. He saw another doctor regarding a cyst on his neck. He was hospitalized for thirty-one days while tests were run. It was two months before he could return to school. After two more months in a special physical education class he seemed to have fully recovered and was taken out of the special class. For the remainder of his junior high and high school career he was active in athletics, participating on the track team and playing basketball and baseball. After graduation he joined the Air Force as a supply clerk and served overseas in Vietnam. Upon discharge from the Air Force, he returned to Tulsa, Oklahoma, and took a delivery job. He worked numerous other jobs for the next fifteen years or so, many involving delivery and supply-type duties. He began working for Purolator in 1980, where he was employed at the time of his 1985 injury. He testified that he never again suffered any physical problems related to his period of childhood illness.
Arkansas Code Annotated section ll-9-525(a)(3) (1987) provides:
It is intended that latent conditions which are not known to the employee or employer not be considered previous disabilities or impairments which would give rise to a claim against the Second Injury Fund.
Based on Chancey’s testimony, the deposition of Dr. North, and the other medical evidence, the Commission found that Chancey suffered from a neurological disorder which was latent until it was accelerated by his work-related injury. The Commission said:
In the present case, as discussed above, we find that the evidence clearly establishes that the claimant’s neurological condition was latent. As discussed, the claimant was aware of the size differences, the infrequent weakness, and possibly the slight limp. However, he felt that these were residuals of the childhood incident. There is no evidence that the claimant had any knowledge, or should have had any knowledge, that he suffered from any condition which would result in the progressive deterioration of his muscles. Likewise, there is no evidence that the employer was aware of any such condition. Moreover, we find that the claimant’s current disabled condition is the result of the muscle deterioration and weakness attributable to the inactivity produced by the work-related injury. Consequently, we find that the pre-existing condition resulting in the claimant’s disability condition was latent and unknown to either the employer or the claimant.
“Latent condition” is not defined by statute. The phrase “latent injury” has ordinarily arisen in workers’ compensation cases in the context of the statute of limitations. See, e.g., Arkansas Louisiana Gas Co. v. Grooms, 10 Ark. App. 92, 661 S.W.2d 433 (1983); Woodard v. ITT Higbie Mfg. Co., 271 Ark. 498, 609 S.W.2d 115 (Ark. App. 1980). The word “latent” applies to that which is present without showing itself. Sanderson & Porter v. Crow, 214 Ark. 416, 216 S.W.2d 796 (1949). Latent means hidden, concealed, or dormant. McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S.W.2d 416 (1961). An injury is latent until its substantial character becomes known or until the employee knows or should reasonably be expected to be aware of the full extent and nature of his injury. Arkansas Louisiana Gas Co. v. Grooms, supra. The question whether an injury is latent is one of fact, subject to the substantial evidence standard on review. See Woodard v. ITT Higbie Mfg. Co., supra; McDaniel v. Hilyard Drilling Co., supra. When reviewing a finding of fact made by the Commission, we must affirm if the Commission’s decision is supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988).
In the case at bar the fact that there were visible signs of the claimant’s underlying disorder does not preclude a finding that the condition which disabled him was latent at the time of the injury. Until the injury, the claimant was able to perform normally, to play high school sports, to serve in the Air Force, and to perform manual labor. The evidence supports a finding that, at the time of the injury, the full extent and nature of his childhood illness and its effect were not known to him or to his employer. See Ark. Code. Ann. § 1 l-9-525(a)(3); Arkansas Louisiana Gas Co. v. Grooms, supra.
Affirmed.
Danielson and Mayfield, JJ., agree. | [
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Judith Rogers, Judge.
This is a step-parent adoption case. Welma Waldrip, appellant, and Randy L. Davis, appellee, were divorced in late 1987. In the divorce, Welma was awarded custody of their two sons, and appellee was ordered to pay $200 a month in child support. Welma married appellant, Joseph Houston Waldrip, Jr., in August of 1988. In September of 1991, a petition was filed for adoption of the boys by Mr. Waldrip. In this petition, appellants alleged that appellee’s consent to the adoption was unnecessary because he had failed significantly and without justifiable cause to provide for the support of the children.
The hearing was held on December 16, 1991. At the conclusion of the hearing, the probate judge made the dual findings that appellants had not shown by clear and convincing evidence that appellee had failed to support the children, and that the adoption was not in the best interests of the children. In this appeal, appellants argue that the trial court erred in finding that they had not met their burden of proving that appellee had failed to support the children. For reasons discussed herein, we dismiss the appeal.
Arkansas Code Annotated § 9-9-207(a)(2) (1987) provides that:
(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.
However, the mere fact that a parent has forfeited his right to have his consent to an adoption required does not mean that the adoption must be granted. The court must further find from clear and convincing evidence that the adoption is in the best interest of the child. Manuel v. McCorkle, 24 Ark. App. 92, 749 S.W.2d 341 (1988).
It is the appellants’ sole contention on appeal that appellee’s consent to the adoption was unnecessary because for a period of one year he failed significantly and without justifiable cause to support the children, and that the probate court’s finding to the contrary was clearly erroneous. Appellants do not challenge, however, the court’s finding that the adoption was not in the children’s best interest, and they openly recognize that by not contesting that ruling any determination upon review of the court’s alternate finding concerning appellee’s purported failure of support will not alter the ultimate decision of the probate court in this case, the denial of the petition for adoption. Nevertheless, appellants urge us to reach the merits of their argument by contending that our decision might have an impact on a future claim for back child support or might affect a future adoption proceeding. We cannot accept appellants’ invitation to address their argument.
As a general rule, no appeal lies from findings of fact, conclusions of law, or “mere rulings.” Holsum Shipley Baking Co. v. Terwilliger, 36 Ark. App. 221, 819 S.W.2d 303 (1991). To make a determination on this issue in this situation would be tantamount to issuing an advisory opinion, which courts are prohibited from doing. See Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988). Moreover, it is our duty to decide actual controversies. Killiam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). Since the resolution of appellants’ issue would have no effect on the instant case and since we do not issue advisory opinions, we dismiss the appeal. See Beatty v. Clinton, 299 Ark. 547, 772 S.W.2d 619 (1989); Huckaby v. Cargill, Inc., 20 Ark. App. 164, 725 S.W.2d 856 (1987).
Dismissed.
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision finding that appellee had contracted an occupational disease, histoplasmosis, during the course and scope of his employment with appellant and that he had become totally disabled as a result. On appeal, appellant contends that the Workers’ Compensation Commission’s decision is not supported by substantial evidence. We disagree and affirm.
In reviewing the Commission’s decision, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We do not reverse a decision of the Commission unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached. Willmon v. Allen Canning Co., 38 Ark. App. 105, 828 S.W.2d 868 (1992).
Appellee worked for Osmose Wood Preserving, appellant, from February 1990 until July 1990. Appellant engages in the manufacturing of utility poles and inspection of existing power line utility poles to determine if the poles need to be replaced. To determine if the poles needed to be replaced or treated, an 18 by 24 inch hole was dug around the base of the pole. If the pole needed to be treated, it was coated with creosote, wrapped with material and the ground restored. Appellee’s job consisted of digging around the poles and treating the poles if necessary. About June 21,1990, appellee became ill. Dr. Robin J. McAlister determined that appellee was suffering from histoplasmosis after eliciting a positive histoplasmosis serology.
The applicable statute in this case is Ark. Code Ann. § 11-9-601 (1987). Specifically under § 11-9-601(e), an occupational disease is one that results in disability or death and arises out of and in the course of the occupation. However, no compensa tion shall be payable for any ordinary disease of life to which the general public is exposed. § 11-9-601 (e)(3). Also, under § 11-9-601(e)(2), no compensation shall be payable for any contagious or infectious disease unless contracted in the course of employment in a hospital or sanitorium.
The administrative law judge found that appellee was exposed to the histoplasma capsulatum; that histoplasmosis is peculiar to the occupation in which appellee was engaged; and that histoplasmosis is not a disease common to the general public. The administrative law judge also noted that histoplasmosis is not the kind of infectious disease which the statutory exclusion addresses.
First, appellant argues that the record is void of any proof that appellee actually came into contact with the fungus which caused his histoplasmosis while working for appellant. However, the record discloses that appellee was working in Northwest Arkansas which is saturated with poultry production houses and that histoplasma capsulatum is endemic to this area. The appellee testified that the poles which he inspected and treated were located in rural areas, and that the lines ran through bushy areas, creek bottoms, farms, chicken houses and in fields treated with chicken feces. Appellee testified that he had on occasion dug through chicken feces to gain access to the poles. Dr. Robin McAlister’s notes concerning appellee stated that appellee denied any camping trips, hunting, fishing or exposure to wild animals. Dr. McAlister also noted that “in light of all of this, as well as positive serologies confirming histoplasmosis and positive mediastinal lymph node biopsies, it must be assumed that this patient had significant exposure to histoplasma capsulatum through his work. I am unable to elicit any other method of exposure.” Dr. Eileen Taft stated “[i]t seems logical to me that systemic illness with this organism may have well resulted from the activities which the patient performs in his line of work.” Also, Dr. Taft notes that appellee’s work certainly predisposes him to exposure to a relatively high inoculum of the organism.
In workers’ compensation cases, medical opinions need not be expressed in terms of reasonable medical certainty in speaking of causal connection when there is supplemental evidence supporting the causal connection. Hope Brick Works v. Welch, 33 Ark. App. 103, 802 S.W.2d 476 (1991). Causal connection is generally a matter of inference, and possibilities may play a proper and important role in establishing that relationship. Id. Given the evidence that appellee was exposed to the fungus at work and the medical opinions offered on this subject, we cannot say there is no substantial evidence to support the Commission’s finding that appellee’s condition was causally related to his employment.
Second, appellant argues, with reference to Ark. Code Ann. § ll-9-601(e)(3),that80% of the people in Arkansas are exposed to the fungus and that no other employee contracted the fungus. The fact that the general public may contract the disease, however, is not controlling; the test of compensability is whether the nature of employment exposes the worker to a greater risk of that disease than the risk experienced by the general public or workers in other employments. Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984). In this case, there was testimony that appellee was exposed to chicken feces and areas with the histoplasmosis fungus on a daily basis due to his employment. Consequently, we cannot say there is no substantial evidence to support the finding that appellee was placed at a greater risk of acquiring the fungus than the general public.
Also, appellant contends that histoplasmosis is an “infectious disease” which bars a workers’ compensation claim. This argument is based on Dr. McAlister’s testimony that histoplasmosis was a fungus that was “infectious” and the provision of Ark. Code Ann. § 11-9-601(e)(2), which states:
(2) No compensation shall be payable for any contagious or infectious disease unless contracted in the course of employment in, or immediate connection with, a hospital or sanitorium in which persons suffering from that disease are cared for or treated.
However, just as the ALJ pointed out in his decision, we are of the opinion that appellee’s histoplasmosis is not excluded under Ark. Code Ann. § ll-9-601(e)(2) (1987).
Provisions of the Workers’ Compensation Act are to be construed liberally in favor of the claimant. In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter. City of Fort Smith v. Tate, 38 Ark. App. 172, 832 S.W.2d 262 (1992).
The original Arkansas Workers’ Compensation law, enacted in 1939, provided coverage for occupational disease and included a schedule of compensable diseases and included a schedule of compensable disease under Ark. Code Ann. § 81-1314(a)(5). Listed in the category of compensable diseases was:
12. Infectious or contagious disease contracted in the course of employment in, or in immediate connection with, a hospital or sanatorium in which persons suffering from such disease are cared for or treated.
In 1976, section 14, the occupational disease section, was amended by Act 1227. The listing of compensable diseases was discarded; however, a provision was maintained to protect hospital or sanatorium workers under § 81-1314(a)(5)(h), which is now codified at Ark. Code Ann. § 11-9-601. When reviewing the statutory history of this provision, we observe that the category set out in § 81-1314(5)(12) (1948) was inclusive in nature and provided coverage for contagious or infectious diseases which hospital or sanatorium workers contracted through their employment. Section 11-9-601 (e)(2) was not meant to exclude coverage for employees who contract an infection in the course of their employment because they do not work in a hospital or sanatorium, but rather was to protect hospital and sanatorium workers. We have repeatedly held that the Workers’ Compensation Act is to be liberally construed in favor of the claimant in accordance with the Act’s remedial purpose. Deffenbaugh Industries v. Angus, 39 Ark. App. 24, 832 S.W.2d 869 (1992). We cannot say that the Commission’s conclusion that appellee’s histoplasmosis is the type of infection which is compensable under § 11-9-601 was in error. Based on the evidence that appellee acquired histoplasmosis through his exposure to the fungus in connection with his employment; that appellee was placed at a greater degree of risk of contracting this fungus due to his work; and that histoplasmosis is peculiar to appellee’s job, we also cannot say that there is no substantial evidence to support the Commission’s decision.
Affirmed. | [
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Judith Rogers, Judge.
The appellant, Randall D. Mar-tindill, was arrested for driving while intoxicated by David Newman, an auxiliary police officer for the City of McRae. The arrest occurred when Newman stopped appellant’s vehicle after twice observing it cross the center line of the roadway. During the stop, Newman concluded that appellant was intoxicated, and he transported appellant to the police station in Beebe where there was a breathalyzer machine. At the station, Newman issued appellant citations for driving while intoxicated and driving left of center. Appellant refused to submit to a blood-alcohol test, and the operator of the breathalyzer machine also cited appellant for violating the implied consent law. This appeal follows appellant’s convictions on all charges at a bench trial held in the Circuit Court of White County.
For reversal, appellant contends that at the time of his arrest . the auxiliary officer was not acting under the direct supervision of a designated, on-duty law enforcement officer as is required under the provisions found in Ark. Code Ann. § 12-9-301 (1987) and § 12-9-303 (1987). Consequently, he asserts that he was not legally arrested or validly charged with the offenses of driving while intoxicated and left of center, and argues that the trial court erred in denying his motions to dismiss and to suppress the evidence arising from the arrest. Because we do not accept appellant’s proposition that the auxiliary officer was not properly supervised, we affirm.
Arkansas Code Annotated § 12-9-303 (1987) provides as follows:
(a) An auxiliary law enforcement officer shall have the authority of a police officer as set forth by the statutes of this state when the auxiliary law enforcement officer is performing an assigned duty and is under the direct supervision of a full-time certified law enforcement officer.
(b) When not performing an assigned duty and when not working under the direct supervision of a full-time certified law enforcement officer, an auxiliary law enforcement officer shall have no authority other than that of a private citizen.
According to Ark. Code Ann. § 12-9-301(8) (1987), “direct supervision” means having a designated on-duty, full-time certified law enforcement officer responsible for the direction, conduct, and performance of the auxiliary law enforcement officer when that auxiliary law enforcement officer is working an assigned duty. The statute further provides that direct supervision does not mean that the full-time law enforcement officer must be in the physical presence of the auxiliary law enforcement officer when the auxiliary officer is working an assigned duty. It is the appellant’s contention in this appeal that there was no “direct supervision” when the arrest occurred because the supervising officer was not “on-duty” based on evidence that the supervisor was at home and had turned down the volume of his police radio.
As disclosed by the record in this case, Officer Newman stopped appellant’s vehicle at roughly 2:30 a.m. on August 5, 1990. Some five minutes before initiating the stop, Newman had been in contact with Marshall Mark Bishop, who was the officer designated as Newman’s supervisor. Bishop informed Newman that he was going home and he instructed Newman to make one last patrol through town before Newman retired for the evening. Bishop further advised Newman to call him at his residence if any problems were encountered. Newman stopped appellant’s vehicle during this last sweep through town. Newman phoned Bishop immediately upon his arrival at the Beebe police station and he informed Bishop about what had transpired. Bishop told Newman to have the breathalyzer test administered and to call him back when the results were obtained. Newman then informed appellant of the law concerning implied consent and advised appellant of his rights with respect to taking the test. When appellant refused the test, Newman contacted Bishop who directed Newman to issue citations for driving left of center and driving while intoxicated.
Our courts have had occasion to address questions concerning auxiliary police officers in the context of Ark. Code Ann. §§ 12-9-301 and 12-9-303. First, in Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985), the supreme court ruled that unsupervised auxiliary officers did not have the authority to arrest the defendant or validly charge him with the offense of DWI, second offense. The court observed that unsupervised auxiliary officers only had the authority to act as private citizens, who are authorized to make an arrest if it is believed that a felony had been committed, but not a misdemeanor offense such as DWI, second offense. As the auxiliary officers’ citation was the only charging instrument, the supreme court dismissed the case since the unsupervised officers had no authority to issue the citation. Later, in McAfee v. State, 290 Ark. 446, 720 S.W.2d 307 (1986), the court held that the supervisor’s physical presence was not required to validate an arrest by the auxiliary officer. There, the court was also of the opinion that it would be an unreasonable interpretation of the statue to require the auxiliary officer to speak to his supervisor before proceeding with an arrest. Next, in Turnbull v. State, 22 Ark. App. 18, 731 S.W.2d 794 (1987), we rejected the contention that radio contact between the auxiliary officer and his supervisor did not provide direct supervision, noting that the physical presence of the supervisor was not required.
Here, we think the record amply demonstrates that the auxiliary officer was acting under the direct supervision of his supervisor to the extent required under the statutes. Both Newman and Bishop were aware of each other’s whereabouts at the time of the arrest. Newman was specifically instructed to make one more patrol through the area and was directed to contact Bishop should anything occur. Newman complied with this directive when he phoned Bishop from the police station. Moreover, Newman received further instructions from Bishop as to how he should proceed in handling the situation. Notwithstanding appellant’s argument that Bishop was not “on-duty” because he was at home, the record supports the view that Bishop, in fact, maintained his role as Newman’s supervisor. Therefore, we find no merit in appellant’s argument that direct supervision was lacking.
Affirmed.
Jennings and Danielson, JJ., agree. | [
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John E. Jennings, Judge.
Alishisa Ofochebe was one of three drivers involved in a traffic accident in Garland County which caused two deaths. She was charged with and convicted of two counts of manslaughter and was sentenced to ten years on each count, with the sentences to run consecutively.
Appellant’s counsel has now filed a no-merit brief stating that he “has examined the record of these proceedings and found no reversible errors.” Counsel’s brief then discusses a list of “adverse rulings which could possibly support an appeal.”
The procedure for the filing of a no-merit brief is governed by Anders v. California, 386 U.S. 738 (1967) and Rule 11 (h) of the Rules of the Supreme Court. The test is not whether counsel thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be “wholly frivolous.” Anders, 386 U.S. at 744. Under Anders, the appellate court is also required to make a determination “after a full examination of all the proceedings,” whether the case is wholly frivolous. Similarly, Rule 11 (h) permits the filing of a no-merit brief only when “the appeal is wholly without merit.”
After examining the record we are not convinced that the appeal is wholly without merit or “so frivolous that it may be decided without any adversary presentation.” Penson v. Ohio, 488 U.S. 75, 82 (1988). We need not and do not determine whether error was committed; we hold merely that some of the issues raised are not “wholly frivolous.”
By way of example there exists in this case an issue under the United States Supreme Court’s holding in Batson v. Kentucky, 476 U.S. 79 (1986). That issue clearly deserves an adversary presentation. Many of the other adverse rulings received by appellant were on evidentiary matters. Some of the points are wholly without merit. Others, however, are not so frivolous as to obviate the need for a full adversary presentation.
For the reasons stated, and pursuant to Anders v. California, counsel’s motion to withdraw is denied, and the case is remanded for rebriefing in adversary form. A new briefing schedule is established to start December 2, 1992.
Danielson and Rogers, JJ., agree. | [
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Melvin Mayfield, Judge.
This appeal follows the successful assertion of the statute of limitations by appellee, Spencer Alford, in an action brought against him by appellant, Oaklawn Bank, for a deficiency judgment following the repossession and sale of collateral securing a promissory note.
On July 1, 1985, appellee signed a note in the amount of $11,655.36 to Oaklawn Bank in order to finance the purchase of a 1985 Jeep. The note provided that appellee would make forty-eight monthly payments of $242.82 beginning August 16, 1985, and that appellee would be in default if he failed to make a payment when due. It also provided that, in the event of default, appellant could accelerate the due date of the note, making all sums immediately due. The security agreement appellee gave to appellant provided remedies in the event of default, which included the right to take immediate possession of the property, with or without legal process, to sell it, and to apply the proceeds as provided by law toward payment of repossession expenses and satisfaction of the debt. The security agreement stated: “You will be entitled to a deficiency judgment if the proceeds of sale do not pay all the secured obligations (except where prohibited by law).”
Appellee defaulted in payments on the note, and appellant repossessed the vehicle. On August 11, 1986, appellant sent the following notice to appellee:
As you know on August 9,1986, we repossessed the motor vehicle described below which we were financing for you. The vehicle is being held in storage for Oaklawn Bank, where it will remain until August 21,1986. If you pay your account in full the amount of $13,847.42 on or before that date [,] [w] e will release the certificate of title to the vehicle to you. You will also need to pick up any personal belonging[s] on or before August 21, 1986 or we will dispose of the property.
If you do not pay your account in full on or before that date, it is our intention to offer the vehicle at private sale on the next succeeding business day. We will apply the net proceeds of the sale to your account. If the amount of the proceeds is less than the amount due us, we will notify you of the amount and will expect you to pay the deficiency.
On September 18,1986, appellant sent a letter to appellee stating that the Jeep had been sold, leaving a balance of $2,108.75, and requesting payment. This letter was returned to appellant with a notation of “Returned to Sender Moved Left No Address.”
On September 6, 1991, appellant filed a complaint in the Clark County Circuit Court for the amount of the deficiency plus interest, attorney’s fees, and costs and attached a copy of the note and security agreement to the complaint. In response, appellee answered that the five-year statute of limitations had run and asserted the same defense at trial. See Ark. Code Ann. § 16-56-111(b) (1987). In an order entered March 6, 1992, the circuit judge found that appellant had accelerated the note by repossessing appellee’s vehicle on August 9,1986, and by writing a letter to appellee dated August 11, 1986, demanding full payment of the note; that the statute of limitations began to run when appellant accelerated the note; and that the statute of limitations expired on August 10, 1991, barring appellant’s complaint.
On appeal, appellant argues that the statute of limitations, at least with regard to the deficiency, had not run before it filed its complaint. Appellant asserts that it had two potential causes of action when appellee defaulted on the note: it could either (1) accelerate the note, forego repossession and sale of the collateral, and institute legal action for collection of the entire balance due under the note; or (2) repossess the collateral, dispose of it in a commercially reasonable manner, apply the proceeds of the sale to appellee’s indebtedness, and if a deficiency remained, take legal action for its collection. Appellant asserts that it could not have maintained a successful action for the collection of a deficiency balance until the amount was established by the sale of the collateral on September 18, 1986; the statute of limitations, therefore, did not begin to run until September 18,1986, and did not expire before the filing of the complaint. We disagree.
A statute of limitations does not begin to run until the plaintiff has a complete and present cause of action. Corning Bank v. Rice, 278 Ark. 295, 300, 645 S.W.2d 675, 678 (1983). The period of limitations for contracts runs from the point at which the cause of action accrues. Eckels v. Arkansas Real Estate Comm’n, 30 Ark. App. 69, 79, 783 S.W.2d 864, 870 (1990). For breach of contract, the true test in determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion. Dupree v. Twin City Bank, 300 Ark. 188, 191, 777 S.W.2d 856, 858 (1989); Davenport v. Pack, 35 Ark. App. 40, 45-46, 812 S.W.2d 487, 490 (1991). A cause of action for breach of contract accrues the moment the right to commence an action comes into existence, Dupree v. Twin City Bank, 300 Ark. at 191, 777 S.W.2d at 858, and occurs when one party has, by words or conduct, indicated to the other that the agreement is being repudiated or breached. Eckels v. Arkansas Real Estate Comm’n, 30 Ark. App. at 80, 783 S.W.2d at 870. In ordinary contract actions, the statute of limitations begins to run upon the occurrence of the last element essential to the cause of action. Chapman v. Alexander, 307 Ark. 87, 88, 817 S.W.2d 425, 426 (1991).
Appellant is correct in asserting that, if the right of action depends upon some contingency or a condition precedent, the cause of action accrues and the statute of limitations begins to run when the contingency occurs or the condition precedent is complied with. Dupree v. Twin City Bank, 300 Ark. at 191, 777 S.W.2d at 858; Rice v. McKinley, 267 Ark. 659, 664, 590 S.W.2d 305, 308 (Ark. App. 1979). Appellant, however, confuses its remedy of repossession, sale, and an action for any deficiency with its cause of action on the debt owed by appellee to appellant. In fact, appellant fundamentally errs in characterizing this remedy as a cause of action. The basis for appellant’s cause of action against appellee was the debt evidenced by the promissory note and secured by the Jeep; the note and the security agreement provided remedies for the satisfaction of this debt in the event of default.
After appellee defaulted and appellant accelerated the debt, appellant’s cause of action on the debt evidenced by the note did not depend upon any further contingency or condition precedent. Appellant’s right to a deficiency judgment was simply part of a remedial process appellant initiated by accelerating the debt and cannot be treated as a separate cause of -action. We, therefore, agree with the circuit judge in his finding that the statute of limitations began to run with appellant accelerated the debt and that it barred appellant’s complaint.
Affirmed.
Jennings, C.J., and Rogers, J., agree. | [
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George K. Cracraft, Chief Judge.
Greg Hendrix appeals from his conviction of delivery of a controlled substance (cocaine), for which he was sentenced to a term of ten years in the Arkansas Department of Correction and fined $10,000.00. We find sufficient merit in two points raised to warrant reversal for a new trial.
Officer Ed Gilbert testified that in September 1990, while working undercover, he purchased a substance from appellant for $100.00. It was not denied that the substance was cocaine. Appellant testified in his own behalf, denying that he was the person from whom the officer made the purchase.
On direct examination, appellant was asked by his attorney if he had ever used drugs. Appellant responded that over two years ago he had tried cocaine on one or two occasions but had not used it at any time after that. He denied either using or dealing in drugs, asserting that he had tried to keep other people from becoming involved with drugs because “it’s burning our commu nity down” and because people who use or deal in drugs “los [e] everything.”
After appellant testified, the State announced in chambers that it intended to call Officer Ricky Newton to testify that, approximately four months before appellant’s arrest on the charge for which he was being tried, Newton had found appellant in possession of cocaine, arrested him, and obtained an Arkansas State Crime Laboratory report that would corroborate the officer’s opinion that the substance was cocaine. Appellant made a continuing objection to evidence of the incident on grounds that it was not proper impeachment evidence, that introduction of the laboratory report denied him the right of confrontation, and that the officer lacked the required qualifications to state an opinion as to the classification of the substance taken from appellant on that occasion. Appellant makes these same arguments on appeal.
We first address the issue of impeachment. On direct examination, appellant not only denied participating in the crime for which he was being tried, but also made the sweeping assertion that he had not used or dealt in narcotics and had used his best efforts to prevent others from doing so. When he made these assertions on direct examination, he opened the door for impeachment by contradiction and the State was entitled to introduce competent evidence that he had been untruthful and attempted to mislead the jury by his direct examination. Garst v. Cullum, 291 Ark. 512, 726 S.W.2d 271 (1987); Hilly. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991); see McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986). Since the Arkansas Rules of Evidence do not provide a rule for impeachment by contradiction, we must look to the common law. While a witness cannot be impeached by extrinsic evidence on collateral matters brought out on cross-examination, the limitation does not apply to answers given on direct examination. It is now established that when a witness testifies on direct examination that he has not committed collateral acts of misconduct, that testimony may be contradicted by extrinsic evidence. Garst v. Cullum, supra; Hill v. State, supra. Under this rule, it would not be error for the court to allow competent evidence to establish that appellant’s assertion that he had not used or dealt in drugs and had used his best efforts to prevent others from using them was untrue.
We agree with appellant, however, that on the facts of this case the actual evidence introduced was not admissible. Officer Newton testified that he stopped appellant in May 1990 for a traffic violation and found him in possession of a plastic bag containing a substance that the officer sent to the State Crime Laboratory for analysis. Over appellant’s objection, the officer was permitted to state that in his opinion the substance in the bag was cocaine. Also over appellant’s objection, the State was allowed to introduce into evidence a copy of the crime laboratory report purported to have been made of that substance. We agree with appellant that it was prejudicial error to allow the crime laboratory report into evidence over his objection that it denied him the right to confront and cross-examine his accusers.
Arkansas Code Annotated § 12-12-313(d) (Supp. 1991) states as follows:
(d)(1) All records and reports of evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the employee who performed the analysis.
(2) The defendant shall give at least ten (10) days notice prior to the proceedings that he requests the presence of the employee of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.
(3) Nothing in this subsection shall be construed to abrogate the defendant’s right to cross-examination.
The purpose of this statute is to remove these reports from exclusion under the hearsay rule and make them admissible when certain requirements designed to establish their trustworthiness have been met. Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990). However, we cannot agree that the statute, when applied to the facts of this case, also dispensed with appellant’s right to assert his rights of cross-examination and confrontation. These rights are designed to protect the accused against adverse testimony from whatever source it might come and guarantee the right to see a witness face-to-face. The primary purpose of this guarantee is to preserve the right of cross-examination. It also is designed to require the personal appearance of the witness to enable the factfinder to observe his deportment and to have the advantage of subjective moral effect on the witness produced by his presence before the court in which the accused is on trial. See Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978).
The State argues that appellant’s failure to demand the presence of the crime laboratory analyst prior to trial constitutes a waiver of his right to demand that presence. We agree that even constitutional rights must be asserted in the manner specified by reasonable procedural requirements. See Parham v. State, 262 Ark. 241, 555 S.W.2d 943 (1977). However, the State’s reliance on Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990), is misplaced. In Johnson, the appellant had knowledge that the crime laboratory report would be used at trial for more than ten days prior to the date of trial, and under those circumstances it was held that his failure to assert his right of confrontation in the time provided by statute constituted a waiver of that right.
The rule in Johnson necessarily contemplates that the accused knew or should have known of the State’s intent to use the document prior to trial. In the event of such knowledge, he must follow the procedure set out in the statute. The statute, however, contains no procedure for the assertion of these rights when the existence and intended use of such a report first becomes known to the accused after the trial has commenced. Here, the State admits that it had no intention of using evidence of the stop made by Officer Newton until after appellant had testified. Nor was it disputed that appellant did not know of that intent until the third day of the trial. While the procedural rule requiring pretrial notice of demand for the right of cross-examination of a laboratory employee is generally a reasonable one, there can be no reasonable basis for enforcing such a rule where it is not possible for the accused to comply.
Nor do we find merit in the State’s argument that, because appellant could have asked for a continuance to enable him to obtain the presence of the witness, his failure to do so constituted a waiver of the right to demand that presence. Because the statute does not contain a reasonable procedure for asserting the right of confrontation when that right arises after the trial has begun, the assertion of that right when it does arise is all that is required of the accused and casts upon the State the burden of either producing the witness for cross-examination or requesting a continuance in order to produce him. In other words, in the absence of an applicable statute or rule, the burden of producing a prosecution witness for cross-examination does not rest upon the accused, but rather upon the State.
Appellant also argues that the trial court erred in allowing Officer Newton to state his opinion that the substance discovered in the earlier incident was cocaine. We agree.
When Officer Newton was called to testify he was asked to state his name, occupation, and if he had ever seen appellant before. He stated his name as “Trooper R.L. Newton.” He was asked if he had ever seen appellant before and he stated that he had seen him on Tuesday the 15th of May, 1990, when he observed appellant operating a vehicle with an expired registration and stopped him. He was asked, “Did you recover a controlled substance in that vehicle or in the region near the vehicle?” Over appellant’s continuing objection that there had not been a proper foundation laid, the officer was permitted to state his opinion that the substance was cocaine.
Rule 702 of the Arkansas Rules of Evidence provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier-or-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.
It is well settled that the determination of whether a witness possesses these qualifications sufficiently to qualify as an expert in the matter is within the sound discretion of the trial court, whose ruling this court will not disturb unless that discretion is abused. Whaley v. State, 11 Ark. App. 248, 669 S.W.2d 502 (1984).
We cannot conclude that the trial court exercised any discretion at all. No attempt was made to qualify this officer as having more experience with or understanding of controlled substances than that of the average juror. He simply stated that he was a police officer, without reference to the length of time he had served as such or to any training or experience he may have had relative to controlled substances. Without a proper foundation, it was error to overrule appellant’s objection.
It was argued in our conference that the objection to the officer’s statement of opinion was not properly preserved for appeal and that his statement rendered the admission of the crime laboratory analyst’s report harmless. While we do not agree that the point was not preserved, we conclude that even if it was not, the testimony did not render admission of the report harmless.
An accused’s right of confrontation is guaranteed by both the state and federal constitutions. Although there are some federal constitutional errors that are harmless and do not require reversal, the rule for such a doctrine is necessarily a federal one. Vann v. State, 309 Ark. 303, 829 S.W.2d 415 (1992). In such cases, the test is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. Chapmans. California, 386 U.S. 18 (1967); Fahy v. Connecticut, 375 U.S. 85 (1963); Vann, v. State, supra.
Here, the basis for the officer’s opinion was not disclosed to the jury. As the extent of his knowledge, training, or experience regarding drugs was not made known, his testimony may have been given less weight by the jury than the positive assertion in the report of one who was purported to be a trained chemist. We must conclude, therefore, that there is a reasonable possibility that the admission of the chemist’s report contributed to the conviction, and we cannot declare that its admission was harmless beyond a reasonable doubt.
Reversed and remanded.
Cooper, J., dissents. | [
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Judith Rogers, Judge.
In its regulatory capacity, the appellant, the Arkansas Securities Department (hereinafter “Department”), revoked the registration of U.S. Associates, Inc., and the licenses of appellees Rondell Eugene Loftin, Ronald Floyd Davis and Gary Ellis Johnson. The circuit court, upon review, reversed the Department’s decision based on the determination that appellees had not been afforded a fair hearing before the agency’s tribunal as evidenced by an ex parte discussion that took place between the agency’s hearing officer and department representatives. On appeal, the department contends that the trial court erred in holding that appellees had been denied due process and further argues that its decision was otherwise supported by substantial evidence. We affirm.
On March 13,1989, the Department’s staff filed an administrative complaint against the appellees and others alleging certain violations of Arkansas securities laws and regulations. In general, it was alleged that appellees Ellis and Johnson, as agents of U.S. Associates, had engaged in various unlawful trading practices and that appellee Loftin, the president and chief executive officer of U.S. Associates, had failed to discharge his supervisory duties and obligations with respect to these and the other named agents of the firm. On November 21, 1989, as provided under Ark. Code Ann. § 23-42-202(b) (1987), the Commissioner, Beverly Basset, delegated to Joe E. Madden, Jr., an Assistant Commissioner, the authority to act as the hearing officer .in this matter. Pursuant to Ark. Code Ann. 25-15-213(2)(C) (Repl. 1992), the appellees, as well as another named respondent, Adron Jerome Gilbert, filed affidavits of personal bias and disqualification in which they requested the removal of Madden as the hearing officer. Madden denied the appellees’ motions for disqualification, but granted the motion of Gilbert, based on his personal involvement in the investigation of Gilbert and the attempted negotiation of a settlement with him.
The hearing began on December 5,1989, and continued for a period of thirty-nine days. At the conclusion of the twenty-fourth day, the appellees renewed their requests for Madden’s disqualification. In their oral motions, appellees contended that Madden had also taken part in the investigation which led to the complaint being filed against them. Their argument was based on Gilbert’s testimony that morning suggesting that the appellees had been a topic of discussion in a June 29, 1989, meeting conducted by Madden with Gilbert and other staff members, including Deputy Commissioner Becky Berry. At the outset of the proceedings the next day, Madden denied the Department’s motion to quash the subpoena requested by appellees for Ms. Berry, and appellee Loftin proceeded to question Ms. Berry as to her recollection of the June 29, 1989, meeting. During Loftin’s examination, the witness was confronted with a tape recording of a conversation which had occurred during the noon recess the previous day between the hearing officer, Ms. Berry, and attorneys and representatives for the Department, Drake Mann, John Moore and David Smith. A transcript of the ex parte discussion was introduced into the record, which states as follows:
Ms. Berry: Gary Johnson ... he is, I mean really, yesterday, for a couple of days he just sits there nonchalant and then he just gets . . .
Mr. Mann: All wound up.
Ms. Berry: Yeah, if he was a female I could understand it.
Mr. Moore: Who says he isn’t.
Mr. Mann: Cross-examination . . .
Ms. Berry: Well he says that Glen Reese made all the recommendations and that he didn’t. He also says ... I can remember he said it again in the meeting. All I remember is that we discussed League and all. He said what did y’all discuss ... all of it ... we discussed League and all the other allegations in the complaint. . . That’s a lie.
Mr. Moore: Well we’re going to have to attach [sic] his credibility and show he is biased. That’s what we’re going to have to do.
Ms. Berry: I do not . . . as God is my witness I do not remember.
Hearing Officer: If you don’t remember, you don’t remember.
Ms. Berry: I don’t, I don’t. . . refreshing memory... do you believe that?
Mr. Moore: What are we going to do for lunch here?
Ms. Berry: Very Quick.
Mr. Mann: What time is it?
Mr. Moore: I’ve got to get someone to handle the meeting over there.
Hearing Officer: We’re breaking for lunch.
Mr. Smith: If you want to John, you can run over and do that.
Hearing Officer: We’re breaking til one.
Mr. Smith: ’cause we’re going to have that meeting. We can go through our notes.
Hearing Officer: There’s not that much cross-examination.
Ms. Berry: Then why even open it up for them any.
Hearing Officer: Now you’ve told them that your [sic] going to.
Ms. Berry: You could go down and tell them.
Mr. Moore: Screw them. I don’t care if we’ve told them anything at all. . . We’ve changed our minds . . . screw them ... I don’t care.
Mr. Mann: Your [sic] prejudice is becoming self-evident.
Ms. Berry: That’s right.
Mr. Moore: I am. I will not hide it. In fact more so today than I think I have ever been.
Ms. Berry:... Is Gary Johnson . . . has he not won the contest:
Mr. Moore: Asshole of the year.
Ms. Berry: No that’s just to . . .
Mr. Smith: . . . say’s anything right.
Mr. Mann: He succeeding in pissing y’all off.
Hearing Officer: . . . That’s the only thing he’s trying to do.
Mr. Moore: I’m assuming that you’re going to overrule any objections we make . . . regarding that stuff.
Hearing Officer: No, not if I think it’s a good solid valid objection.
Mr. Moore: Like we haven’t been objecting to the hearsay nature of all this ’cause I figure you’re gonna allow it anyway.
Hearing Officer: I’m gonna let him tell about what happened and his recollection of it.
Mr. Moore: Of course the only thing he says . . .
Hearing Officer: I think the record is perfectly clear that he says ... I think that I remember ... I think . . .
Mr. Moore: Yeah.
Ms. Berry: So we cover everything.
Mr. Moore: The only thing that I think hurts about that meeting is he says Johnson and Davis were mentioned.
Ms. Berry: Right.
Mr. Moore. He never has, really said that Ron Loftin was mentioned.
Mr. Mann: And that hurts because of Joe’s bias.
Hearing Officer: Yeah.
Mr. Mann: So we can drop this out of the complaint. . .if we want to ... if we think it’s that bad . . . Right?
Hearing Officer: No. Because it’s Johnson and Davis.
Mr. Mann: Oh, it’s Johnson and Davis . . . Right . . . O.k., never mind.
Hearing Officer: ... I don’t remember it either.
Ms. Berry: Listen ... it was not.
Hearing Officer: There was . . . When he started talking about it. . . The only thing I remember. . .is there was a discussion about that FNMA 10 day.
Ms. Berry: Right.
Hearing Officer: That everybody took their commissions.
Ms. Berry: But that wasn’t either one of those guys. That was Tim Gibbons.
Hearing Officer: But see, I couldn’t remember who that was.
Ms. Berry: And you weren’t involved in that at all.
Hearing Officer: See I couldn’t remember. But see, at that point I didn’t know who any one of those people were.
Ms. Berry: You didn’t know what we were talking about . . . That had nothing to do with either one of those people.
Mr. Moore: Well they’ll ask you about it.
Ms. Berry: Well am I going to get up there.
Hearing Officer: I think you should get prepared.
Ms. Berry: Fine . . . I’d love to.
Mr. Moore: See y’all after lunch.
Hearing Officer: I’m going back to the office, I’ve got a ton of calls to make including calling Gerald Hannahs.
In explaining the substance of the conversation, Ms. Berry acknowledged that the testimony discussed was that of Mr. Gilbert, who had testified on behalf of the appellees before the lunch break. After further questioning, appellees alleged that the witness’s testimony was inconsistent in certain material respects and the hearing officer granted a brief continuance from that day, a Wednesday, until the following Monday, so that her testimony could be transcribed. When the hearing was resumed on Monday, the hearing officer stated for the record that he had been informed by the court reporter that a transcript of Ms. Berry’s testimony could not be completed on such short notice. The hearing officer then reversed his earlier decision and granted the Department’s motion to quash the subpoena for Ms. Berry. Consequently, no further examination of this witness was allowed. Appellees again renewed their request for disqualification of the hearing officer; the request was denied.
On September 26, 1990, the hearing officer filed a lengthy opinion consisting of his findings of fact, conclusions of law, and his recommendation that the appellee’s licenses be revoked. On that day, the Commissioner approved and adopted the hearing officer’s decision in its entirety. Appellees pursued an appeal in the circuit court seeking to set aside the agency’s order pursuant to Ark. Code Ann. § 25-15-212 (Repl. 1992). The circuit judge determined that the hearing officer had abused his discretion by taking part in the ex parte, discussion and concluded that the appellees had been deprived of the constitutional right to a fair hearing. In its order, the court stated that “it in no way questions the integrity of the hearing officer, Joe Madden, but that litigants, such as the plaintiff's, are not only entitled to a fair hearing but also to a hearing that has the ‘appearance’ of a fair hearing and that in this case simply was not done.” The court reversed the Department’s decision and remanded for a new hearing. In so doing, the court did not address the question of whether the agency’s decision was supported by substantial evidence.
A fair trial by a fair tribunal is a basic requirement of due process. This rule applies to administrative agencies as well as to courts. See Sexton v. Ark. Supreme Court Comm. on Professional Conduct, 299 Ark. 439, 774 S.W.2d 114(1989) (citing In re Murchison, 349 U.S. 133 (1955). See also Ark. Elec. Energy Consumers v. Ark. Pub. Serv. Comm’n, 35 Ark. App. 47, 813 S.W.2d 263 (1991). The supreme court has held that administrative agency adjudications are also subject to the “appearance of bias” standard which is applicable to judges. Acme Brick Co. v. Missouri Pacific R.R., 307 Ark. 363, 821 S.W.2d 7 (1991). As observed by the court in Ark. Racing Comm’n v. Emprise Corp., 254 Ark. 975, 981, 497 S.W.2d 34, 38 (1973), “Since the underlying philosophy of the Administrative Procedure Act is that fact finding bodies should not only be fair but appear to be fair, it follows that an officer or board member is disqualified at any time ‘there may be reasonable suspicion of unfairness.’ ” The Administrative Procedure Act includes a provision which states that members of an agency assigned to render a decision or to make final or proposed findings of fact or conclusions of law in any case of adjudication shall not communicate, directly or indirectly, in connection with any issue of fact with any person or party nor, in connection with any issue of law, with any party or his representative, except upon notice and opportunity for all parties to participate. Ark. Code Ann. § 25-15-209(a) (Repl. 1992). The act further provides that all presiding officers and all officers participating in decisions shall conduct themselves in an impartial manner and may at any time withdraw if they deem themselves disqualified. Ark. Code Ann. § 25-15-213(2)(B) (Repl. 1992).
Based on the existence and content of the ex parte communication, particularly when viewed in conjunction with the hearing officer’s actions after the discussion was bought to light, we cannot disagree with the circuit judge’s conclusion that the appearance of a fair hearing was compromised. Accordingly, we affirm the circuit judge’s decision. Because this matter is remanded for a new hearing, it is unnecessary for us to consider appellant’s argument whether the Department’s decision was supported by substantial evidence.
Affirmed.
Cracraft, C.J., and Mayfield, J., agree.
Appellant, Joe E. Madden, Jr., the current Commissioner of the Arkansas Securities Department, succeeded Commissioner Beverly Bassett in January of 1991. Throughout the period of time that this matter was before the Department, Bassett held the position of Commissioner. | [
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John E. Jennings, Judge.
Lucius Mosley was found guilty by a jury of possession of cocaine and was sentenced to seven years imprisonment. The sole argument on appeal is that the evidence was insufficient to support the conviction. We agree and reverse.
When the sufficiency of the evidence is challenged on appeal, we must view it in the light most favorable to the State. Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991). Only three witnesses testified at trial: Mike Gregor, Henry Boyer, and Norman Kemper. Mr. Gregor, a detective with the Hot Springs Police Department, testified that he and other members of the Eighteenth District Judicial Drug Task Force had conducted surveillance on a duplex apartment at 700 1 /2 School Street in Hot Springs. He obtained a search warrant and on July 8, 1991, at 11:00 p.m. he went to the apartment to search it. Three members of the Hot Springs SWAT Team were with him, including Officer Henry Boyer.
Detective Gregor went up to the apartment and kicked the front door in and entered the front room, followed by the other officers. When the door was kicked in, one of the occupants was struck by the door and knocked “partially” across the room.
The detective described the room as approximately eight feet by ten feet. When the officer entered there were seven people in the room: three men seated on a couch to the officer’s right (the appellant was identified as the man sitting in the middle); two men to the officer’s left who were “in a semi-crouched position;” a woman sitting in an armchair directly across from the officer; and the man the door had struck.
Detective Gregor went into a back room to see if anyone else was there, and as he returned to the front room he saw a plastic bag stuffed in between the back of the chair and the wall. The bag contained thirty-three “rocks” of crack cocaine. The chair was described as being four or five feet from the couch where the appellant was sitting. Viewing the evidence in the light most favorable to the State, the appellant might have been able to see the top of the plastic bag from his position on the couch.
Detective Gregor also found cocaine beneath a cushion on the couch. He testified, “We seized another amount of crack cocaine from a cushion — center portion of the couch, which the three defendants had been seated on — I’m sorry, three other individuals had been seated. It was a cellophane cigarette wrapper containing a few, and then there were a numerous — or a total of twenty-eight rocks of crack cocaine scattered about in that general area underneath.” A glass pipe containing burnt residue was found beneath the couch itself. The detective testified that the appellant was “very fidgety and nervous, somewhat scared or shocked.” The detective also testified that when he entered the room he did not observe anyone smoking crack cocaine and that to his knowledge the appellant did not live in the apartment. The appellant was searched but no drugs were found on his person. Fingerprints from the bags were taken but came back from the crime lab as inconclusive.
Officer Henry Boyer, a member of the Hot Springs SWAT Team, testified that the appellant appeared “extremely agitated and nervous.” He also testified that two of the SWAT team members who entered the apartment carried nine millimeter machine guns.
Finally, Norman Kemper, a chemist for the State Crime Lab testified that the-substances found were in fact cocaine.
When the issue on appeal is the sufficiency of the evidence, we affirm if the jury’s verdict is supported by substantial evidence. Buckley v. State, 36 Ark. App. 7, 816 S.W.2d 894 (1991). Substantial evidence has been defined as evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). In Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981), the court said, “[0]ur substantial evidence rule in a case depending on substantial evidence means simply that the proof must go beyond presenting the jury a choice so evenly balanced that a finding of guilt must rest not on testimony but on conjecture.”
In Parette v. State, 301 Ark. 607, 786 S.W.2d 817 (1990), the supreme court said:
Constructive possession may be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Where, however, there is joint occupancy of premises, then some additional factor must be present linking the accused to the contraband. The state must prove that the accused exercised care, control and management over the contraband and that the accused knew that it was in fact contraband.
301 Ark. at 616, 786 S.W.2d at 822 (citing Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988)). See also Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991); Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991); Cerda v. State, 303 Ark. 241, 795 S.W.2d 358 (1990); Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990); Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986).
In the case at bar there was no evidence that the appellant lived in the apartment. There is no evidence as to how long he had been there before the officers entered. Assuming that the appellant’s mere presence in the apartment qualifies as “joint occupancy,” it remained for the State to prove that he exercised care, control and management over the contraband and that he knew that it was in fact contraband. Parette, supra. While such control and knowledge may be inferred from the circumstances where there are additional factors linking the accused to the contraband, see Nichols v. State, supra, there is not enough evidence in the case at bar to permit that inference. Here, the appellant, along with two others, was near the cocaine scattered beneath the cushion on the couch — he was sitting on it. But this was not a place “exclusively accessible to the accused and subject to his control.” Crossley, supra. The plastic bag stuffed between the back of the armchair and the living room wall was not “in plain view” as that term is used in the relevant cases. See e.g., Sanchez, supra; Nichols, supra.
Finally, under the circumstances presented here, we cannot say that the fact that the appellant appeared “shocked or scared,” alone or in combination with the other facts of the case will support an inference of guilt. In Cerda v. State, 303 Ark. 241,795 S.W.2d 358 (1990), the court said, “The fact that appellant was extremely nervous is some indication of guilty knowledge, but does not compel such a conclusion since nervousness during an arrest and search would be expected.” That statement applies with somewhat more force to the facts here.
Daniel Becker, for appellant.
Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
Our conclusion is that under the law the evidence was insufficient to support the verdict of guilt.
Reversed and Dismissed.
Cooper and Danielson, JJ., agree. | [
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Judith Rogers, Judge.
This is an appeal from a decision revoking Alzia Phillips’ probation and sentencing him to six years in the Arkansas Department of Correction. On appeal, appellant contends that the trial court erred in revoking his probation in violation of his due process right to notice of the basis for his revocation. We disagree and affirm.
On February 12, 1988, appellant was found guilty of possession of a controlled substance, cocaine, and was placed on probation for six years, ordered to pay a $500 fine and to comply with written probation conditions. On October 30, 1989, the prosecuting attorney filed a petition for revocation alleging that the appellant had violated the terms of his probationary sentence on or about October 18, 1989, by committing the crimes of misdemeanor theft of property and disorderly conduct. Appellant admitted the violation and the court extended his probation to March 8, 1994. The prosecutor subsequently filed a petition for revocation on November 21, 1990. The prosecutor claimed that the appellant had violated the terms of his probation alleging that he had committed the offense of delivery of a controlled substance on October 30, 1990, and had failed to keep supervision fees current.
The charge of delivery of a controlled substance was dismissed after a bench trial held on August 20, 1991. The revocation hearing was held immediately following the dismissal. During the trial, Officer Larry Paul Garrison testified that he purchased three rocks of what was purported to be cocaine from appellant. There was also evidence introduced showing that the serial number on a twenty dollar bill found in appellant’s possession matched the number Officer Garrison had copied from the money used in the transaction. Appellant interposed an objection to the introduction of the three rocks that Garrison purchased on chain of custody grounds. The court overruled the objection and admitted the three rocks, along with a fourth rock that was found in the same evidence baggy. Garrison sufmised that this fourth rock was found on appellant’s person in the search incident to his arrest. There was testimony given by the chemist from the crime lab identifying the rocks purchased by Garrison as aspirin, while the fourth rock showed a positive analysis for cocaine. Under these circumstances, the court on its own motion dismissed the charge of delivery of a controlled substance as the evidence revealed that the rocks purchased by Garrison were aspirin. Based on the evidence offered at trial, the court, however, found that appellant had violated the terms of his probation by delivering a counterfeit substance, and revoked appellant’s probation.
Appellant claims he was not provided adequate notice of the charge against him because the state’s petition alleged a charge of delivery of a controlled substance, not delivery of a counterfeit substance. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, even though it does result in the loss of liberty. Consequently, a person on probation is not entitled to the full panoply of rights afforded a defendant in a criminal prosecution. Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992). Fundamental fairness, with an opportunity to be heard, is all that a probationer is entitled to demand. Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981); Fitzgerald v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). The notice required for revocation of suspension or probation is provided for in Ark. Code Ann. § 5-4-310(3) (1987), which requires that the defendant be given prior notice of the time and place of the preliminary hearing, the purpose of the hearing, and the conditions of suspension or probation he is alleged to have violated.
In support of his argument, appellant cites Robinson v. State, 14 Ark. App. 38, 684 S.W.2d 824 (1985). In Robinson, the appellant was charged with robbery and theft by receiving. Robinson was acquitted of all charges. His revocation hearing followed the trial and the court revoked his suspended sentence finding that there was evidence he had committed third degree battery. Our court reversed, finding inadequate notice because, under the circumstances, the appellant had not had the opportunity to present a defense for the offense of third degree battery. Our court noted, that without due notice by the state of its basis for seeking to revoke suspension of sentence, a defendant is left to speculate upon what charges might emanate from the state’s evidence on the day of the revocation hearing.
This case, however, is distinguishable from Robinson. In Robinson, we relied heavily upon the fact that the record revealed that Robinson was not afforded the opportunity to defend against the charge of third degree battery. In the instant case, however, appellant made no claim of surprise, nor did he seek a continuance or indicate the necessity of altering his defense to meet the circumstances. Appellant merely asserted that he was not accorded notice of the charge against him for revocation. When error is alleged, prejudice must be shown because we do not reverse for harmless error. Bonds v. State, 298 Ark. 630, 770 S.W.2d 136 (1989); Phillips v. State, 25 Ark. App. 102, 752 S.W.2d 301 (1988). It is the appellant’s burden to demonstrate prejudicial error, not merely to allege it. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986). In our view, appellant has demonstrated no prejudice resulting from his probation being revoked based on evidence that he delivered a counterfeit substance, as opposed to a controlled substance. Unlike the situation in Robinson, we cannot say that appellant was denied an opportunity to be heard, or that fundamental fairness was lacking.
Also, the offenses in this situation contain essentially the same elements to be proven. Arkansas Code Annotated § 5-64-401 (a) (1987) states, in part,that it is unlawful for any person to deliver a controlled substance; while Ark. Code Ann. § 5-64-401(b) (1987) states, in part, that it is unlawful for any person to deliver a counterfeit substance. The similarity between each offense supports the conclusion that appellant was accorded adequate notice. We think a finding of delivery of a counterfeit substance naturally flows from an allegation of delivery of a controlled substance, when the substance actually delivered is shown to have been a counterfeit substance. Consequently, we do not find that appellant’s right to due process was offended.
Affirmed.
Cooper and Mayfield, JJ., dissent. | [
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Judith Rogers, Judge.
Jeffery Lynn Cash, appellant, appeals his convictions of robbery and theft of property for which he was sentenced to concurrent terms of five and three years, respectively. As his sole point for reversal, appellant contends that he was denied the right to a speedy trial. We disagree, and affirm.
Appellant was charged by a single information with the offenses of aggravated robbery and theft of property (counts 2 & 3), and the offenses of robbery and theft of property (counts 1 & 4). The court’s docket reflects that all charges were set for trial on February 6,1991. On January 18,1991, appellant moved to sever these offenses, and at an omnibus hearing held on January 22, 1991, the court granted appellant’s motion to sever. Appellant was tried on counts 2 and 3 on the date originally scheduled for trial, February 6. As reflected by a docket entry made on January 22, counts 1 and 4, which are the subject of this appeal, as well as another charge pending against appellant, were bound over for trial on May 21, 1991. On May 21, the state elected to try appellant on the other pending charge, and appellant was not tried on counts 1 and 4 until September 16, 1991.
The parties agree that the speedy trial period began to run on August 31,1990, the date of appellant’s arrest. See Ark. R. Crim. P. 28.2(a). Pursuant to Ark. R. Crim. P. 28.1(c), the state had until August 31, 1991, or twelve months from the day of arrest to bring appellant to trial, excluding only such periods of necessary delay as provided in Ark. R. Crim. P. 28.3. Since appellant’s trial took place on September 16, 1991, it was held seventeen days beyond the speedy trial period. 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 appellant’s conduct or that it was otherwise legally justified. Reed v. State, 35 Ark. App. 161, 814 S.W.2d 560 (1991). The State urges that there are several excluded periods justifying the delay. However, we need only discuss one such period as we have determined that the time between January 22, 1991, and May 21,1991, is excluded based on the supreme court’s decision in Lewis v. State, 307 Ark. 260, 819 S.W.2d 689 (1991). This period alone is sufficient to bring appellant’s trial within the speedy trial limitation.
In Lewis v. State, supra, the defendant was charged with four counts of delivery of a controlled substance and all counts were set for trial on the same date, June 18, 1990. Lewis, like the appellant here, successfully obtained a severance just prior to trial and was tried on one count on the original trial date. Before his second trial, Lewis filed a motion to dismiss asserting the lack of a speedy trial. In affirming the trial court’s denial of the motion, the supreme court held that the period from the time the motion to sever was granted until the date the second trial was initially scheduled was excluded for speedy trial purposes. In discussing Lewis’s arguments, the court said:
Be that as it may, it is obvious the remaining counts could not be tried on June 18 as scheduled, and a delay in the trial attributable to the defendant constitutes ‘good cause’ as provided in Ark. R. Crim. P. 23.3(h). The state was prepared to try the appellant on June 18, well within the time for speedy trial and it was the appellant’s motion to sever, filed on the eve of trial, that occasioned the delay. We have held a number of times that when the defendant is scheduled for trial within the time for speedy trial and the trial is postponed because of the defendant, that is ‘good cause’ to exclude the time attributable to the delay.
Id. at 262-63, 819 S.W.2d at 691. Although appellant argues otherwise, we discern no material distinction between Lewis and the case at bar. Appellant was scheduled for trial on all counts on February 6 and, due to the motion to sever granted on January 22, the remaining counts were bound over for trial on May 21. Even though appellant was not tried on that date, that period of delay was nevertheless directly attributable to appellant’s motion to sever. Rule 28.3(h) provides that periods of delay for good cause are excluded in computing the time for trial. As did the court in Lewis, we hold that the postponement prompted by appellant’s motion to sever, from January 22 to May 21, is excluded under the speedy trial rules.
Appellant also argues that the trial court failed to comply with Ark. R. Crim. P. 28.3(i), which provides in part that “all excluded periods shall be set forth by the court in a written order or docket entry.” The court’s docket entry of January 22, 1991, states, “Cts. 2 & 3 of this case to be tried - 5-21-91 set for trial of other counts or 90-2258.” Although appellant does not specify the reason he deems this notation deficient, he cites our decision in Reed v. State, 35 Ark. App. 161, 814 S.W.2d 560 (1991). There, we observed:
Although not expressly stated in the rule [Ark. R. Crim. P. 28.3(i)], the supreme court has said that ‘a court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify, to a date certain, the time covered by such excluded periods.’ Hicks v. State, 305 Ark. 393, 397, 808 S.W.2d 248, 351 (1991) (emphasis in original); see also McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990). The court has also said that this language must be adhered to in order to provide any impetus behind Rule 28.3. Hicks v. State, supra.
Id. at 166, 814 S.W.2d at 562. In this case, the docket entry speaks to the motion to sever; the notation was made contemporaneously to the granting of the motion; and, it specifies the date upon which the trial was rescheduled. Consequently, we find compliance with the rule.
Affirmed.
Cracraft, C.J., and Cooper, J., agree. | [
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Lawson Cloninger, Judge.
This is an appeal from an eminent domain proceeding in White County Circuit Court. On April 10,1978, appellant acquired in fee 8.73 acres of land from a 65-acre tract of land purportedly owned by Mr. and Mrs. Yance Wilkinson. On Aguust 20, 1982, J. R. and Patricia Smith filed a motion to intervene in the action alleging that they were contract purchasers of three acres from the 65 acres. They further alleged that access to their three-acre tract had been impaired by the taking of the 8.73 acres by appellant. In an order rendered on September 10, 1982, the court granted the intervention. This case was tried to a jury on April 11, 1983, and the jury rendered a verdict in favor of the appellees, Yance and Lena Wilkinson, in the amount of $30,216.00. By separate verdict form, the jury rendered a verdict in favor of appellees, J. R. and Patricia K. Smith, and fixed compensation at $3,000. The trial judge deducted $3,000 from the total amount awarded the Wilkinsons and awarded it to the Smiths.
Appellant now brings this appeal, alleging as its sole point for reversal that the court erred in permitting the intervention. Appellant initially argues that the granting of the intervention constituted a suit against the State of Arkansas, in violation of Article 5, Section 20, of the Arkansas Constitution. See also Arkansas State Highway Commission v. Kincannon, Judge, 193 Ark. 450, 100 S.W.2d 969 (1937). We agree with the trial judge that the granting of the intervention did not amount to a suit against the State.
Arkansas Rules of Civil Procedure, Rule 24, provides in pertinent part:
Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
There is no contention by appellant that the Smiths’ interests would have been adequately represented by the Wilkinsons, and that issue therefore is not before us. In this case, we are unable to say that the judge’s decision was in error. As equitable owners of a three-acre tract out of the 65 acres owned by the Wilkinsons, the court properly allowed the Smiths to intervene in the case. He instructed the jury that all damages were to be awarded to the Wilkinsons. He then asked the jury to submit on a separate verdict form the amount in which the Smiths had suffered damages by the taking. The Arkansas State Highway Commission was responsible for no damages suffered by the Smiths. There is no allegation that the award given to the Wilkinsons was excessive, and the award clearly was within the bounds of the expert testimony. The Wilkinsons have not appealed from the judgment of the trial court. We hold that appellant’s argument that appellees’ intervention violated the Arkansas Constitution is without merit.
Appellant further argues that no judgment should have been entered in favor of appellees, the Smiths, because they did not show any damages peculiar to them; namely, that they did not suffer any damage which was not suffered by the public in general. See Arkansas State Highway Commission v. McNeill, 238 Ark. 244, 381 S.W.2d 425 (1964). However, we hold that appellant has no standing to make this argument, since no judgment was entered against it in favor of the Smiths.
We accordingly affirm the jury verdict and the decision of the trial court.
Cooper and Cracraft, JJ., agree. | [
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Tom Glaze, Judge.
This is the second time this workers’ compensation case has been appealed to our Court. The sole issue on the first appeal was whether appellant was an employee of or an independent contractor for the appellee company. Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 S.W.2d 286 (1982). We thought that in reversing the administrative law judge’s finding that Franklin was an employee, the Commission indicated that it believed the “control” test was the only test available under Arkansas law to determine whether one is an employee or an independent contractor. We reversed and remanded for the Commission to consider factors other than control. We noted that the Arkansas Supreme Court had considered the “relative nature of the work” test in Sandy v. Salter, 260 Ark. 486, 541 S.W.2d 929 (1976). See also 1C A. Larson The Law of Workmen’s Compensation §§ 43.50 — 43.52 (1980). On remand, the Commission found that Franklin was an independent contractor under either the “control” test or the “relative nature of the work” test, and therefore not entitled to compensation. In addition, the Commission found that Franklin failed to show by a preponderance of the evidence that the appellee company was estopped to deny benefits.
On this appeal, the appellant Franklin contends that (1) substantial evidence does not support the Commission’s denial of benefits, (2) the Commission erred by readopting the “control” test, and (3) appellant is entitled to benefits by estoppel. We find substantial evidence supports the decision of the Commission; therefore, we affirm.
The appellant Franklin was a pulpwood cutter who injured his back on June 15, 1978, while cutting timber under a contract with appellee Arkansas Kraft. The question of compensability has at all phases revolved around Frank- tin’s status — whether he was an employee or an independent contractor. The Commission has twice decided that he was an independent contractor. Our question in this appeal is whether the Commission had substantial evidence to find that Franklin was an independent contractor. He contends that the facts of this case are almost indistinguishable from the facts in Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983), wherein both the administrative law judge and the Commission found that Lambert was an employee. We affirmed the Commission’s decision in Silvi-craft. It is well settled that the determination of whether, at the time of injury, a person was an employee or an independent contractor, is a factual one, and the Commission is required to follow a liberal approach, resolving doubts in favor of employment status for the worker. Id. at 33, 661 S.W.2d 405. Once the Commission makes that factual determination, we view the evidence in the light most favorable to the Commission’s decision, and affirm if it is supported by substantial evidence. In order to reverse a decision of the Commission, we must be convinced that fair-minded persons, with the same facts before them, could not have arrived at the conclusion reached by the Commission. Id.
The question on appeal is not whether the facts at bar would have supported the opposite conclusion, but whether these facts supported the decision the Commission made. In his brief, the appellant has set out the nine factors this Court enumerated in Franklin v. Arkansas Kraft, Inc., 5 Ark. App. at 269-70, 635 S.W.2d at 289, as guidelines for the Commission to follow in determining whether one is an employee or an independent contractor for purposes of workers’ compensation coverage. Appellant has compared the pertinent facts of this case and Silvicraft under each factor. Without setting out all nine factors or rehashing all of the facts of both cases, we note the following distinctions:
(1) The right to control the means and method by which the work is done. A primary distinction between Silvicraft and the case at bar is that in the former, the company expected the pulpwood cutter to haul wood exclusively for that company. The employee was told that promissory notes on equipment held by a bank and endorsed by the company would have been called had claimant worked for any other company. In the case at bar, it is undisputed that Franklin did not cut and haul wood exclusively for the appellee company, but instead worked for others as much as fifty percent of the time.
(2) The length of time for which the person is employed. In Silvicraft, the claimant had worked exclusively for and under an oral contract with the company for about a year and a half before he was injured. In the instant case, Franklin had worked under a written contract for the appellee company for five or ten years, but during that time he also worked for other lumberyards.
(3) In Silvicraft, the employment agreement between the parties was oral, whereas in the instant case they had a written contract that set out their respective rights and duties.
We believe that the Commission carefully considered the facts of this case that were pertinent to its determining whether appellant was an employee or an independent contractor and that substantial evidence supports its determination that he was an independent contractor.
Appellant also contends the Commission erroneously “readopted” the “control” test. In the first appeal of this case, we remanded to the Commission because no findings of fact were included in its opinion, and we could not determine what factors the Commission had considered in reaching its decision. We said that the nine factors we set out .were not the only factors that conceivably could be considered in a given case and that, traditionally, the control test had been sufficient to decide most cases. On remand, the Commission set out its findings under each of the'nine factors and found that Franklin failed to meet his burden of proof under either the “control” or the “relative nature of the work” test. The Commission stated that in the normal situation, the “control” test is the most important test and that the “relative nature of the work” test is only a factor to be considered. We do not find that to be a “readoption” of the control test; the control test has not been abandoned by this Court. The Commission clearly followed our direction upon remand and considered the facts of the case in light of the various factors we set out. We find no error in that regard.
The appellant’s final contention is that he is entitled to workers’ compensation benefits by estoppel. Claimant again relies upon the Silvicraft case, here for the proposition that the company’s method of calculating the workers’ compensation insurance premium precludes the company’s denying that appellant is covered by that insurance. However, we did not decide the estoppel issue in Silvicraft because our finding that substantial evidence supported the Commission’s decision that Lambert was an employee made it unnecessary to reach the estoppel question.
In the instant case, we do not find that the employer’s method of calculating premiums for workers’ compensation benefits estops the company to deny that claimant is covered. The appellees’ workers’ compensation premiums are figured on the number of cords of wood delivered to Arkansas Kraft by all workers who are not self-insured. The method of computation is required by the Arkansas Insurance Department; it is not voluntary, but is imposed by state law upon the company. The appellant was not charged a premium for workers’ compensation coverage, nor would appellant have been paid more money per cord of wood delivered had the company used some other method of computation. Appellant’s employees were covered under the appellee’s workers’ compensation policy. By the method of computing premiums for companies that employ workers such as Franklin, who choose not to purchase workers’ compensation insurance, the State assures protection for workers such as those Franklin hired to work for him. This case is factually different from Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S.W.2d 270 (1963), wherein the company contractually agreed to pay workers’ compensation premiums and the premiums were in fact deducted from payments made to the claimant. In Stillman, the Court found the employer estopped to deny that Stillman was covered. See also Voss v. Ward’s Pulpwood Yard, 248 Ark. 465, 452 S.W.2d 629 (1970) (Supreme Court affirmed denial of benefits when there was neither an agreement that the company would pay premiums nor evidence that premiums were deducted from claimant’s pay). We therefore find that substantial evidence supported the Commission’s finding that claimant failed to meet his burden of proof under the estoppel theory.
We affirm.
Affirmed.
Cracraft and Corbin, JJ., agree. | [
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Melvin Mayfield, Chief Judge.
Deborah Lisa Williams appeals from a decree of divorce granted James Sloan Williams and from the court’s order of split custody of their two minor children.
Debby and Jim were married in March of 1979, when he was in the Marine Corps stationed in California. They lived there until he got out of the Marines in February of 1981 at which time they moved to Arkansas, his home state. Debby is of Chinese ancestry but was born and raised in this country. She had been married before and has a child by that marriage. She and James have two children.
There is evidence to indicate that Debby did not like Arkansas; that she began corresponding with her ex-husband, Chuck; and that she was making plans to leave Jim and return to Chuck. One day her mother arrived here from California and Debby moved out of the house she shared with Jim, and announced she was going back with her mother to California to live. Jim filed suit for divorce that same day. Debby filed a counterclaim in which she asked for divorce and on August 10, 1982, the case was tried.
Jim was granted divorce on the grounds of general indignities. He testified that Debby had accused him numerous times of being unfaithful, had called him a bastard in front of the children, and was engaged in a long distance love affair with her ex-husband. (She admitted that during the short time she had lived in Arkansas, she had gone back to California at least one time and had seen Chuck while she was there.) Jim’s testimony was corroborated by a woman who said she was a friend of both of the Williams. She testified she had heard Debby accuse Jim of being with other women, had known Debby was corresponding with her ex-husband, and that Debby was planning to remarry him as soon as she could get back to California.
In short, we think there was sufficient evidence of indignities, independently corroborated, to sustain the finding of the trial court that Jim had met his burden of proof as required by such cases as Anderson v. Anderson, 269 Ark. 751, 600 S.W.2d 438 (Ark. App. 1980). We do not reverse the chancellor’s findings of fact unless they are clearly wrong, ARCP Rule 52(a), and we cannot say he erred in granting the divorce to Jim. Parenthetically, the evidence would have sustained the granting of the divorce to Debby had the chancellor made that decision.
At the time of the trial in August of 1982, one of the parties’ children was a year old and one was two years old. The court held that Debby could have custody of them for six months and Jim could have custody for six months. Recently, in Hansen v. Hansen, 11 Ark. App. 104, 666 S.W.2d 726 (1984), this court said:
The law pertaining to joint or divided custody is now well settled in this state. Although equally divided custody of minor children is not generally favored, it may be ordered where the circumstances clearly warrant it. The paramount issue in all custody cases is the welfare and best interest of the child. If it is shown that the interest of the child is better fostered by divided custody we have held that this is a proper order for a court to make. Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981).
In the instant case, it might be said that the evidence does not show that it would be in the best interest of the children for either of the parents to have custody of them. Jim had been disciplined in the military for smoking marijuana and he had been AWOL. He also admitted he had been in possession of certain drugs (Tylenol, he said) and hypodermic needles and syringes which had been stolen from a doctor’s office; and that he had offered marijuana to the daughter of his corroborating witness. However, he said he no longer used drugs or alcohol and had not for about a year.
On the other hand, Jim said that Debby did not take good care of the children. He said she didn’t bathe them or feed them properly, giving them only fruit; cheese, yogurt and chicken — not meat and potatoes that would stick to their ribs — and that sometimes she let them run around in diapers. Debby testified that she was living in California with her mother; that she was willing to split custody with Jim although she would rather have the children herself; and that she might remarry her ex-husband, Chuck, who was with her at the trial. She testified that she had no job, had not finished high school, and lived off her mother and a $500 per month government allotment she got for her oldest child because Chuck was still in the service.
In Hansen we said that, unlike Drewry, the child in Hansen had two homes in different states; that she would be subjected to “the emotional and psychological trauma of adjusting to one parent and experiencing the abrupt severance of that relationship by a sudden change in custody and environment to another parent.” Much of what we said in Hansen applies here. Of course, in this case the chancellor did not have a perfect choice. These children are actually going to live with grandparents most of the time. Jim admits his parents keep the children when he has their custody, and Debby’s mother will keep the children if Debby works while they are in her custody. The children are now two and four years old. Undoubtedly the chancellor will be called upon in the next couple of years to make a new decision about the children’s custody. By then his choice may be clear, based on past experience and changes in circumstances.
In Calhoun v. Calhoun, 3 Ark. App. 270, 625 S. W.2d 545 (1981), we said, “We know of no case in which the superior position, ability and opportunity of the chancellor to observe the parties carry as great a weight as one involving minor children.” We cannot say that the chancellor was clearly wrong in this finding in regard to the custody of the children in the case at bar.
One other point needs to be noticed. After the trial on August 10, 1982, Debby’s attorney filed a motion for a new trial alleging that the chancellor, at the temporary custody hearing in October of 1981, had referred to Debby as a foreigner and that this statement indicated a prejudice toward her and a new trial should be granted for that reason. The judge denied the motion and on the authority of Harrison v. The State, 35 Ark. 458 (1880), found the attorney in contempt and fined him $100.00. The attorney asserts in the brief he has filed for the appellant Debby Williams that the chancellor was in error in the contempt matter. Suffice it to say, that matter is not before us. The attorney is not a party to this case, and the notice of appeal does not mention the contempt matter. Moreover, the proper remedy for relief from an order of contempt is by certiorari and not by appeal. Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967); Beene v. The State, 22 Ark. 149 (1860).
The decree appealed from is affirmed.
Cracraft and Cloninger, JJ., dissent. | [
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Tom Glaze, Justice.
Appellant, Gary Whiteside, was convicted by jury of the rape of a seventy-seven-year-old woman and of the burglary of her home. For his crimes, appellant was sentenced to twenty years’ imprisonment. Appellant raises one issue on appeal: Must a stipulation to admit into evidence the results of a polygraph examination be in writing?
Three days prior to his trial, appellant requested the prosecutor and the trial court to permit him to take a polygraph examination to prove that he did not commit the rape or the burglary. The agreement, made in the presence of the trial judge, was not on the record and was never placed in writing. Appellant’s counsel warned him of the consequences of taking the test — particularly that the results of the examination would be admissible into evidence. After advice from counsel, appellant insisted on taking the examination, which he subsequently failed. At trial, appellant moved to exclude the results of his polygraph examination because the stipulation to take it was not in writing. Appellant admitted to the trial court during a hearing on his motion to exclude that he had said, “I want to take the lie detector test, and I’ll go by whatever it says.” He also stated that, if the examination had shown he was telling the truth when he denied committing the crimes, he would have placed these results into evidence.
Appellant relies primarily on State v. Bullock, 262 Ark. 394, 557 S.W.2d 193 (1977), which holds that the defendant and the prosecuting attorney must enter into an adequate stipulation whereby they agree that the results of a defendant’s polygraph examination are admissible into evidence. In Bullock, the defendant passed a polygraph test and tried to introduce the results into evidence. The trial court refused to admit the test results, and the Supreme Court upheld the decision because the trial record disclosed that there was a misunderstanding concerning the terms of thie agreement and, in fact, a dispute existed whether any agreement was reached at all. The Court stated that the misunderstanding arose because the defendant’s attorney hád failed to fully explain the 'situation to his client. In discussing the adequacy of such stipulations, the Court cited State v. Valdez, 91 Ariz. 274, 371 P.2d 894 (1962). That case held that the results of polygraph examination are admissible into evidence in Arizona under certain qualifications, one of which is that the prosecuting attorney, defendant and his counsel all sign a written stipulation providing for the admission into evidence of the polygraph results. Although our Supreme Court in Bullock did not expressly hold that stipulations to enter the results of polygraph examinations into evidence must be in writing, the Court did express such a ruling in the subsequent case of Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). Specifically, the Court in Wilson, citing Bullock, stated that the results of polygraph examinations are not admissible unless both parties enter into a written stipulation agreeing that the results will be admissible.
Even though the Supreme Court in Wilson seems to interpret Bullock to require a written stipulation before polygraph exams can be introduced, we do not agree that either of those cases precludes the admission into evidence of such an examination under the facts of this case. Here, unlike in Bullock, appellant has never questioned the existence of his stipulation or its terms. The record clearly shows that appellant knew his polygraph examination, despite its results, would be admissible into evidence and that he deliberated with counsel before making his decision. Under these circumstances, we uphold the admission of the polygraph examination into evidence despite the lack of a written stipulation to that effect.
One other jurisdiction has confronted this issue. In the case of State v. Streich, 87 Wis.2d 209, 274 N.W.2d 635 (1979), the Supreme Court of Wisconsin stated that an oral stipulation could not satisfy its case law requirement of a written stipulation for the admission of polygraph results; however, the Court refused to reverse the defendant’s conviction because the record showed there that appellant knew the results of the test would be used as evidence at trial. In the instant case, the record clearly shows that the appellant did know that the results of his polygraph examination would be used at his trial and that there was no misunderstanding on this point between the parties. In fact, appellant candidly admitted that if the results of the polygraph examination had been favorable, he would have introduced them into evidence. We have not discovered any case (and appellant cites none) in which a conviction was reversed solely because the parties did not follow the proper procedure in having a written stipulation to the admission of polygraph results. We would be placing form over substance if the only reason we reversed this case was that the parties failed to reduce their agreement to writing. Accordingly, we affirm.
Affirmed.
Cracraft, C.J., and Cooper, J., agree.
In Holcombe v. State, 268 Ark. 138, 594 S.W.2d 22 (1980), a case involving a written stipulation, the Court cited Bullock for the rule that polygraph test results should be excluded from evidence unless there is a valid stipulation for their admission. | [
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George K. Cracraft, Chief Judge.
Rachel B. Mc-Millen brought an action in the circuit court of Pulaski County against J. Dan Baker and Innkeepers, Inc. (referred to collectively as “Baker”) for unpaid rent under a five year lease. Baker cross-complained against Franklin Jones, Jr. and Hotel Venture, a Louisiana partnership, (referred to collectively as “Jones”) alleging that Jones was liable as assignee of the lease. The trial court sitting without a jury found Baker liable for the rent and granted Baker’s cross-complaint against Jones for the rent which amounts to $40,500. Baker does not appeal.
Jones brings this appeal contending that the trial court erred in holding him liable because the assignment of the lease did not meet the requirements of the Statute of Frauds and also was void for lack of mutuality. We find no merit in these arguments but do agree that the trial court erred in not considering the issue of Baker’s duty to mitigate the damages.
The testimony on behalf of McMillen established that Baker was the owner and operator of the Sheraton Hotel in Little Rock. In April 1979 Baker leased from McMillen a vacant lot adjacent to the hotel for a term of five years at a monthly rental of $1,125. The lease also granted Baker an option to purchase the lot for $135,000 at the expiration of the lease. Baker obtained this lease and option for the purpose of development or sale of the property. However, the property was not used for any purpose and has remained vacant from the date of the exeudon of the lease through the date of the judgment.
In the latter part of 1979 Baker and Jones negotiated a sale of the Sheraton Hotel. According to Baker these negotiations were for the sale of the hotel and all of its assets, including the lease in issue. Baker and his attorney testified that although the contract of sale did not specifically describe the leasehold property as was intended, the contract did refer to a leasehold interest with option to purchase. They testified that all parties contemplated that the McMillen lease would be transferred to Jones as a part of the whole transaction. They testified that at closing they had presented a document for Jones’ signature in which Jones would assume all obligations under the lease with McMillen, but Jones’ attorney argued that they had agreed only to an assignment and the lesser obligations it would impose. After some discussion it was agreed that Jones would only be required to accept an assignment of that lease. They testified that Jones’ attorney then prepared a written assignment which Baker signed and returned to Jones’ attorney who recorded it and delivered it to Jones. Baker’s witnesses testified that in April 1980 one payment in the amount of $1,125 was received by McMillen from Jones and that he failed to make any further payments and explained that Jones had decided that he did not want the property.
Baker testified that after Jones defaulted he wished to preserve the rights under the option by making the required monthly payments of rent but was advised by his attorney that unless the lease containing the option was reassigned to. him he would have no rights in the option. On October 10, 1980 Baker’s attorney sent a reassignment deed to Jones with a request that he execute and return it. Jones refused.
Jones and his associates testified that throughout the negotiations there were no discussions of the assignment of the lease in question and that the first he heard of it was at the meeting at which the sale was consummated. Jones testified that he first refused to sign the assumption agreement but after discussing it with his associates he had determined that he wanted to look at the property to determine whether he would assume the lease. He stated that at the time the separate assignment was prepared it was his belief that he was to look at the property to see if he wanted to accept the assignment. He stated that one rent payment had been made on his behalf but he did not know why, and that upon learning of it he told his employees to make no more payments. He further testified that when McMillen’s agent called him about it he told her that he had decided he did not want the property. He testified that he had made no use of the property and had never taken possession of it. He did recall the letter from Baker’s attorney requesting that he reassign the lease agreement and stated at trial that he was willing to reassign at that time.
Jones’ attorney also stated that he had no knowledge of the transfer of the McMillen lease prior to the date of closing and had found nothing in the contract of sale referring to it. It was his testimony that he did prepare and record the assignment but there was a collateral agreement that Jones would have a period of time in which to determine whether he would assume the obligation, and if he did not want it he would return it to Baker. It was his understanding that Jones and his associates would look at the leased property and make a feasibility study, but there would be no further obligation if they decided not to take it.
The trial court found that the agreement for the purchase and sale of the hotel provided for the transfer of the leasehold and the omission of the description of it in the purchase agreement was a clerical error. He further found that the leasehold was an asset and its transfer was contemplated by all parties as part of the sale of the hotel. The court further found that Jones was bound by the acceptance of the assignment to the leasehold and obligated him to pay the monthly installments provided in the lease for its entire term. The court specifically found that the assignment did not- violate the Statute of Frauds and that there were no “side agreements” which would relieve Jones from its obligation upon acceptance of the lease assignment. The court concluded that by acceptance of the assignment and performance under it Jones became liable to Baker for all accrued installments of rent.
Appellant first contends that the trial court erred in finding that the transaction was not violative of Ark. Stat. Ann. § 38-101 (Repl. 1962) which provides that no action may be brought to charge any person upon a lease of lands unless the agreement, promise'or contract upon which the action is brought is in writing and signed by the party to be charged. He argues that the assignment was signed only by Baker and is unenforcible under the Statute of Frauds and that there was insufficient evidence of part performance on his part to remove the assignment from the Statute of Frauds, citing Norton v. Hindsley, 245 Ark. 966, 455 S.W.2d 788 (1969).
We do not view the matter as one involving the Statute of Frauds. The lease was in writing signed by the lessor and lessee, in all respects complied with Ark. Stat. Ann. § 38-101, and was an enforcible contract between those parties. The leasehold interest of Baker was assigned to Jones in a written assignment deed which clearly identified the subject of the assignment by specific reference and met all of the requirements of Ark. Stat. Ann. § 38-105 (Repl. 1962) on the assignment of leases which requires only that the assignment be by deed or in writing and signed by the party assigning. The assignment of a lease signed only by the assignor is not violative of that section of the Statute of Frauds requiring that a promise to answer for the debt of another be in writing. The acceptance of an assignment of a lease places the assignee in privity of estate with the lessor and he becomes liable for those covenants which run with the land, one of which is the obligation to pay future rents while that privity exists. It is not a collateral agreement to answer for the debt of another but an original undertaking based on valid consideration. 1 Friedman on Leases, 2d Ed., § 7.501(c) (2) (1983). Such undertakings are not prohibited by the Statute of Frauds. Barnett v. Hughey Auto Parts, Inc., 5 Ark. App. 1, 631 S.W.2d 623 (1982).
The issue is simply whether a preponderance of the evidence supports the finding that there was sufficient delivery and acceptance by Jones to make the assignment a binding one and to impose on him the duties of assignee under our law of landlord and tenant. Findings of fact of a circuit court sitting as a jury will not be reversed on appeal unless clearly against a preponderance of the evidence and in making that determination we give due regard to the superior opportunity of the trial court to judge the credibility of the witnesses and the weight to be given to their testimony. ARCP Rule 52(a).
In Baston v. Davis, 229 Ark. 666, 318 S.W.2d 837 (1958), Bastón accepted a written assignment of a lease and went into possession under it. The Statute of Frauds was pled in that case and was rejected as being inapplicable. There the court said:
The rule appears to be that where a person accepts an assignment of a lease he enters into a privity of estate with the original lessor, and becomes personally liable for the rents, (32 Am.Jur. 320 § 374) and that liability continues despite the fact the assignee abandons the premises, as Bastón did here. Baston’s acceptance of the written assignment and performance under it, we hold, was sufficient to make him liable for the rents without regard to the statute of frauds, and that his abandonment of the property did not relieve him from a liability for the remainder of the term. [Emphasis supplied]
The only discussion in Bastón of the Statute of Frauds was contained in a recitation of the headnotes to Chicago Attachment Co. v. Davis Sewing Machine Co., 25 N.E. 669 (Ill. 1890) which did involve an oral assignment of a lease. There the Illinois court utilized the doctrine of part performance to validate an otherwise invalid oral assignment.
Nor can we agree that the extent of the possession and performance of an assignee is a critical issue; it is his acceptance of the assignment which places him in privity qf estate with the landlord. In 49 Am. Jur.2d, Landlord and Tenant § 460 (1970) the rule is stated as follows:
The liability of an assignee for rent is determined by his right to possession and not his actual possession, and he is therefore held liable although he may not have entered into possession, if he has accepted the assignment, and, a fortiori, he cannot escape liability by merely abandoning the possession. The entry into possession is said to be material only as an aid in determining whether the assignment made was bona fide or only colorable. [Emphasis supplied]
See also 1 Friedman on Leases, 2d Ed., § 7.501(c).
In Little v. Hudgins, 117 Ark. 272, 174 S.W. 520 (1915) our court declared that the law does not contemplate that a landlord “shall hunt up his tenant and ask him to go into possession of the premises before he can claim the rent which the tenant has agreed to pay.” It is the duty of the tenant to take possession unless possession is withheld from him and if he does not do so he would be liable for the rent from the beginning of the lease term.
This same rule was applied to an assignee in Bastón v. Davis, supra. Although in Bastón the assignee under a written assignment took actual possession for eighteen months and paid rent during that period, it is clear from the opinion of the court that it was the fact of acceptance of the assignment and not the extent and duration of possession and compliance that was the basis for the decision. There the court, quoting from Chicago Attachment Co. v. Davis Sewing Machine Co., supra, stated:
The lessee is liable to the lessor by virtue of privity of estate and privity of contract. We understand that the liability of the assignee to the lessor or reversioner is by reason of the privity of estate, which, by the assignment, has been transferred from the lessee to the assignee. The fact of actual possession is frequently of vital importance, as affording a link which, in connection with the further fact such possession is derived from the lessee, will raise the presumption that there is privity of estate between the party in possession and the lessor, or even estop such party from denying such privity, but, after all, it is the privity of estate which imposes the liability.. . . So long as it (assignee) continued to be the owner of the lease estate, and retained the legal title thereto, and was entitled to immediate and actual possession, such legal title drew to it the constructive possession, and it was still assignee of the term, and responsible as such. [Emphasis supplied]
As with all other conveyances, delivery and acceptance are essential to the validity of a deed of assignment but there is no requirement that there be a formal delivery or acceptance. These questions are largely ones of intent and may be found from the acts and conduct of the parties. Graham v. Suddeth, 97 Ark. 283, 133 S.W. 1033 (1911). The evidence clearly discloses that there was an actual manual delivery of the assignment at the time of closing which was accepted by Jones and his attorney. It was recorded and returned to Jones who retained it in his possession thereafter and refused a request for reassignment of the lease to Baker. There was evidence that the lease had been delivered to Jones before the first rent payment was due and paid on his behalf. Jones thereafter took no action to relieve himself of the obligations imposed by the assignment. When all of the evidence is considered and giving due regard to the superior position of the trial judge to judge the credibility of the witnesses and the weight of their testimony, we cannot say that his findings that the assignment of the lease had been delivered, accepted and acted upon, are clearly erroneous. ARCP Rule 52(a).
Here the trial court found that Jones did accept the assignment and he expressly rejected Jones’ assertion that it was conditioned on subsequent acceptance. Having accepted the assignment he was entitled to immediate possession of the property and the fact that he did not take the possession is not decisive.
Nor do we find merit in the contention that the assignment was void for lack of mutuality. The duties and obligations existing between lessee and his assignor are not contractual ones but those which arise between those in privity of estate. When that privity is established the rights and obligations of the parties are those which the law imposes.
We have concluded, however, that the trial judge erred in refusing to address the issue of McMillen’s duty to use all reasonable efforts to minimize the damage she sustained. Baston v. Davis, supra. For this error the judgment must be reversed and the cause remanded.
Affirmed in part; reversed and remanded in part.
Cooper and Cloninger, JJ., agree. | [
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George K. Cracraft, Judge.
Beverly Baldridge appeals from a ruling of the Board of Review that she was disqualified from receiving benefits under the Employment Security Act on a finding that she had voluntarily quit her last employment without good cause connected with the work. We agree that the finding is not supported by the evidence. The appellant was employed at American Greetings in Osceola. In June 1983 her husband obtained new employment in Melbourne and moved there. The appellant gave due notice to her employer that she was terminating her employment to move to a new location with her husband and left her job on June 24th. On June 26th she joined her husband in Melbourne. At the time she left her employment appellant had accrued vacation time and therefore her employer carried her on the payroll until July 5, 1983.
Prior to July 1, 1983 Ark. Stat. Ann. § 81-1106 (Repl. 1976) provided that a person who voluntarily leaves his work without good cause connected with the work is not qualified to draw benefits. That section, however, contained the following proviso:
Provided no claimant shall be disqualified if he has voluntarily, left his work to accompany, follow, or join the other spouse in 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.
1983 Ark. Acts 482 §§ 16-21 declared this proviso to be ineffective after July 1,1983. On finding that appellant’s last day of work was July 5, 1983, the Board of Review applied the 1983 Act and ruled that appellant had voluntarily quit her job without good cause connected with the work.
The record clearly discloses that the last day the appellant worked for her employer was June 24, 1983. She performed no services for her employer thereafter for which wages were payable. She was carried on the payroll of the employer until July 5th solely on account of vacation pay which had already accrued for past services performed, not for wages earned after June 24th. It was undisputed that she left her place of employment on June 24th for the purpose of accompanying her spouse to their new place of residence on June 26th. We conclude that under the circumstances of this case the Board of Review erred as a matter of law in applying the 1983 Act which was not effective until after July 1st.
The mere fact that appellant left her last employment for the purpose of following her spouse is not enough to qualify her for benefits. She must also show an immediate entry into the job market upon arrival at her new place of residence. As the Board made no finding on that issue the cause is remanded to enable it to do so.
Reversed and remanded.
Cooper and Cloninger, JJ., agree. | [
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George K. Cracraft, Chief Judge.
Sanyo Manufacturing Corporation appeals from a decision of the Arkansas Workers’ Compensation Commission that Margaret Leisure had developed an occupational disease while in the employ of the appellant and was entitled to temporary total disability from April 2,1982 to a date yet to be determined. The appellant maintains a plant in Forrest City for the manufacture of television sets. The appellee was first employed there in September 1979 and eventually was assigned to the assembly line where the television sets were fine tuned. In that job she had to lift television sets which weighed fifty pounds and place them on the assembly line. Then she bent over and reached around to the back of each set to hook it up to an antenna. She then was required to fine tune from seven to thirteen channels on each set. In tuning the sets it was necessary that she keep her arm in a bent position and use constant twisting wrist motion. She would repeat this procedure thirty times an hour on 240 television sets per day. On March 6,1981, after working for several hours on the line she experienced pain in her hand, arm and neck, which she attributed to the heavy lifting and the repetitive work which her job required. She was seen by Dr. Jacobs in Forrest City, was diagnosed as having tenosynovitis, and remained off work for approximately three months for which she received workers’ compensation benefits. She was treated by Dr. Richardson during this period.
Her doctor then returned her to work with restrictions and she was assigned duties which would not require heavy lifting or fine tuning, but ultimately she was reassigned to a fine tune assembly line. She testified that she continued to experience pain and swelling in her hand and arm and consulted Dr. William Traylor, who diagnosed her condition as tenosynovitis with carpal tunnel syndrome and referred her to Dr. Edward Kaplan, a neurosurgeon. Dr. Kaplan confirmed the tenosnovitis but he said the carpal tunnel syndrome was only suspected. He subsequently released her to work without heaving lifting and with other restrictions on the use of her hand on August 25, 1982. She was also placed on restrictive layoff which meant that Sanyo had no available job for appellee that could accommodate her work restrictions.
The appellant concedes that appellee suffers from tenosynovitis and that the Commission properly classified it as an “occupational disease,” but contends that the claim should have been denied in its entirety because the appellee did not establish all of the elements required by our statute to make an occupational disease compensable. Appellant argues that:
(1) appellee failed to prove “a causal connection between the occupation or employment and the occupational disease by clear and convincing evidence” as required by Ark. Stat. Ann. § 81-1314(a)(5)(i);
(2) appellee failed to prove that “the hazards of such disease actually exist and are characteristic thereof and peculiar to the trade, occupation, process or employment and is actually incurred in his employment” as required by Ark. Stat. Ann. § 81-1314(a)(7);
(3) appellee failed to overcome the prohibition in Ark. Stat. Ann. § 81-1314(a)(5)(iii) that “No compensation is payable for any ordinary disease of life to which the general public is exposed.”
Appellant first argues that the appellee failed to establish a causal connection between the disease and her occupation by clear and convincing evidence. On appellate review we affirm the findings of the Workers’ Compensation Commission if they are supported by substantial evidence and we review the evidence in the light most favorable to the Commission’s finding. It is not a prerequisite to a finding of causal connection that is based upon medical testimony. Treadaway v. Riceland Foods, 268 Ark. 658, 594 S. W.2d 861 (Ark. App. 1980). It is the Commission’s duty to translate all of the evidence presented to it into findings of fact utilizing its advantage of expertise and superior knowledge of industrial demands, limitations and requirements.
There was evidence that the onset of appellee’s first period of disability in 1981 came about while she was performing a job requiring repetitive twisting motions and heavy lifting. Her condition improved after she was returned to work which required neither lifting nor repetitive twisting. The onset of the second episode occurred after she had returned to her former job. She attributed her disability to the nature of the work she was required to perform. There was medical testimony that work that is of a continuous, repretitive nature involving bending of the wrist and working with weights in a flexed position does tend to predispose one to the disorder suffered by the appellee. There was evidence that this type of job activity was common in appellant’s plant and that appellee’s disease was a frequent one in that industrial environment. We cannot conclude that the Commission’s finding of a causal connec tion is not supported by substantial evidence or that reasonable minds could not have arrived at the conclusion it reached.
Appellant next contends that Ark. Stat. Ann. § 81-1314(a)(7) (Repl. 1976) requires that an occupational disease be compensable only when it is peculiar to the occupation in which the claimant is engaged and, if it can be contracted by one engaged in any other occupation, benefits are excluded under this section. This argument was rejected by the court in Brown Shoe Company v. Fooks, 228 Ark. 815, 310 S.W.2d 816 (1958). In that case the employer manufactured shoes. In the performance of her duties the employee sat on an adjustable steel chair at a sewing table for eight-hour work days. She contracted bursitis of the tailbone which caused her great pain and was aggravated by sitting. There was medical testimony that this condition was caused by “constant pressure to the tailbone.”
The employer appealed from a Commission award of benefits for the occupational disease arguing that there was no evidence showing that this particular industrial disease was characteristic of or peculiar to the occupation of the shoe industry. The court disposed of that argument in the following language:
In the first place it is noted that, under the wording of the statute (§ 81-1314(a) (7)) the disease need not be peculiar to the occupation, but may be peculiar to the process or employment. These last two emphasized words, we think, have reference in this case, to sitting in one position continuously for long hours and not to manufacturing shoes. . . .The key word which appellant seems to overlook is “hazards” in said subsection 7. The question is not whether the disease is characteristic of and peculiar to the kind of work appellee was doing, but whether the hazard (of such disease) bore such relation. There can be no doubt here that there was a hazard or risk involved in the character of work appellee was doing because it actually did cause her ailment. No less was the hazard peculiar to a process which entailed continual and repeated pressure on the tailbone for eight hours a day for five days a week, because such abnormal pressure on the affected parts is not incident to many other processes of employment.
If it be conceded, and we do, that the exact meaning and application of the words referred to above are not crystal clear in the context in which they are used, then we think they should be interpreted in the light most favorable to appellee.
This decision and those we have examined from other jurisdictions make clear that an occupational disease is “characteristic” of an occupation, process or employment where there is a recognizable link between the nature of the job performed and an increased risk in contracting the occupational disease in question. We agree with the court’s reasoning in Brown Show Company and conclude that the words “process” and “equipment” have reference in this case to a job requiring continuous repetitive bending of the wrist and working with weights in a flexed position, and not to the manufacture of television sets.
We find no merit in appellant’s argument that because there was evidence that people who do not work in factories suffer from tenosynovitis, this disease should be excluded from coverage under Ark. Stat. Ann. § 81-1314(a)(5)(iii) as an “ordinary disease of life to which the general public is exposed.” We conclude that this places an entirely too narrow interpretation upon the wording of that statute, particularly in view of the purposes for which our workers’ compensation laws were enacted. A proper interpretation of this section requires that it be read in conjunction with the Act as a whole and particularly those sections dealing with the same subject matter. Although this section was not referred to in the Brown Shoe Company case, the court’s decision there foretells the result we must reach. To interpret § 81-1314(a)(5)(iii) as narrowly as appellant suggest conflicts with § 81-1314(a)(7) as construed in Brown Shoe Company. In that case there was nothing to indicate that bursitis was a disease peculiar to factory workers or was not suffered by the general public. The court’s decision turned on the increased risk of contracting the disease due to the nature of the employment.
As we construe § 81-1314(a)(5)(iii) the fact that the general public may contract the disease is not controlling. The test of compensability is whether the nature of employment exposes the worker to a greater risk of that disease then the risk experienced by the general public or workers in other employments. In Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979) it was stated: •
For example, it is clear that the Law was not intended to extend to an employee in a shoe factory who contracts pneumonia by standing next to an infected co-worker. In that example, the employee’s exposure to the disease would have occurred regardless of the nature of the occupation in which he was employed. To be within the purview of the Law, the disease must be so distinctively associated with the employee’s occupation that there is a direct causal connection between the duties of the employment and the disease contracted.
Courts in other jurisdictions have likewise rejected the proposition that a particular illness cannot qualify as an “occupational disease” merely because it is not unique to the injured employee’s profession. Carter v. Lakey Foundry Corp., 118 Mich. 325, 324 N.W.2d 622 (1982); Young v. City of Huntsville, 342 So.2d 918 (Ala. Civ. App. 1976), cert. denied, 342 So.2d 924 (Ala. 1977); Aleutian Homes v. Fischer, 418 P.2d 769 (Alaska 1966); State ex rel. Ohio Bell Telephone Co. v. Krise, 42 Ohio St. 2d 247, 327 N.E.2d 756 (1975); Briggs v. Hope’s Windows, 284 App. Div. 1077, 136 N.Y.S.2d 41 (1954); Underwood v. National Motor Castings Division, 329 Mich. 273, 45 N.W.2d 286 (1951).
The appellant finally contends that even if the appellee were entitled to benefits for occupational disease the Commission erred in that there was no substantial evidence to support its finding that she continued to be temporarily and totally disabled after August 23, 1982. This argument was based on Dr. Kaplan’s testimony that he had released her to work without heavy lifting on August 23rd and that she was able on that date to perform light work. She did not return to work because there was no work available to her under those limitations at Sanyo. Appellant argues that under Ark. Stat. Ann. § 81-1302(e) “disability” means “incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury” and that as there was no evidence that appellee has sought work elsewhere, her lack of earnings resulted from unavailability of work, not from an incapacity to earn. We find no merit in this contention. The situation here is the same as in Arkansas State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981) where that same argument appears to have been made. There the court stated:
Although Dr. Cash released claimant for light work, there was no testimony pertaining to his ability to earn the same or any part of the wages he was receiving at the time of the injury. The Workers’ Compensation Commission is in a better position to evaluate the claimant’s ability to earn wages in the same or other employment. And, as in this case, once the Commission has before it firm medical evidence of physical impairment and functional limitations, it has the advantage of its own superior knowledge of industrial demands, limitations, and requirements. It can apply its knowledge and experience in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of the injured employee to obtain or hold a job and thereby arrive at a reasonably accurate conclusion as to the extent of the disability.
We cannot conclude that the finding of the Commission is not supported by substantial evidence.
Affirmed.
Glaze and Cooper, JJ., agree.
Brown Shoe was decided under the original act which declared that only diseases listed in it were to be considered “occupational” ones. The limitation to scheduled diseases was removed by Act 1227, extended session 1976, but the language relied upon in Brown Shoe, supra, was retained. | [
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Tom Glaze, Judge.
This appeal is from a degree rescinding a sale of realty between the appellants, Tolbert S. Ballard and his wife, and the appellees, Garry Carroll, et al, and granting judgment in favor of the appellees for $23,780.92. We affirm.
W. F. Rector, Jr., who handled the purchase of the property for the appellees, first met Mr. Ballard in May, 1976, when Ballard contacted Rector about selling the Ballards’ property. Mr. Rector was employed at Rector-Phillips-Morse Real Estate Company. Rector tried to sell this property for about ten months but was unable to do so. Rector then organized a group of investors, including himself, and they purchased the property in May of 1977. The appellants gave the appellees a warranty deed with lien retained on the property. The appellees, in turn, paid the appellants @20,000 as a down payment and gave them a promissory note for the balance of @70,000.
Major flooding occurred in Pulaski County in September of 1978 and Rector testified at trial that the property involved here was covered by nine feet of water. Rector commenced an investigation of the water problem after the September, 1978, flood but testified he did not learn of the flooding history of the property or how often it flooded until July, 1979. Before Rector completed his investigation, the property had again flooded, and this time he said that the water was at the level of the dirt of the carport, which was the highest point on the property.
On July 6, 1979, and after Rector ended his investigation, the appellees sued appellants to rescind the sale of the real property, claiming the appellants represented that the property did not flood. The appellants denied any misrepresentation and counterclaimed for foreclosure, alleging default by the appellees on their promissory note. The court rescinded the sale, and dismissed appellants’ counterclaim. Additionally, the court ordered appellants to pay @23,780.92 to appellees and imposed a lien on the subject property to secure payment.
Appellants first argue the evidence does not support the chancellor’s finding that they misrepresented the property sold to appellees. The chancellor made the following findings in his decree which we find pertinent to this issue:
(3) Prior to the time of the sale, plaintiff, W. F. Rector, Jr., requested information from Tolbert Ballard about the property flooding, or if water stood on the property after rainfall. Tolbert Ballard represented that the property did not, and would not accumulate water or flood and had adequate drainage. These representations were made to induce the sale of the property.
(4) The plaintiffs were not aware at the time of the purchase that the property had a history of flooding and relied on Tolbert Ballard’s statements as to the condition of the property and purchased the property.
(5) The representations made by Tolbert Ballard to William F. Rector, Jr., as to the flooding- and accumulation of water on the property were not true as Tolbert Ballard knew or reasonably should have known at the time the representations were made. Further, the evidence indicates Tolbert Ballard concealed the water problems from the plaintiffs.
(6) After the plaintiffs took possession of the property, they discovered the property was subject to periodic flooding. This flooding materially impaired the value of the property to the plaintiffs.
Chancery cases are tried de novo on appeal, and we do not reverse the chancellor’s findings of fact unless they are clearly erroneous (clearly against the preponderance of the evidence). Garot v. Hopkins, 266 Ark. 243, 583 S.W. 2d 54 (1979), and Rule 52(a), Arkansas Rules of Civil Procedure.
In reviewing the facts in this cause, we do so in light of the law set forth in the case of English v. North, 112 Ark. 489, 166 S.W. 577 (1914), wherein the court, quoting from Matlock v. Reppy, 47 Ark. 148, 14 S.W. 546 (1886), set forth the following four tests to determine whether the rescission of contract upon the ground of fraudulent representations could be maintained:
(a) Was the fraud material to the contract; did it relate to some matter of inducement to the making of the contract?
(b) Did it work an injury?
(c) Was the relative position of the parties such, and their means of information such, that the one must necessarily be presumed to contract upon the faith reposed in the statements of the other?
(d) Did the injured party rely upon the fraudulent statements of the other, and did he have a right to rely upon them? Matlock v. Reppy, at 165.
The principles first adopted in Matlock, supra, were later applied in Neely v. Rembert, 71 Ark. 91, 71 S.W. 259 (1902). We believe it is instructive to briefly review the facts in Neely. Neely sold Rembert a 3,000 acre plantation and assured Rembert that only forty or fifty acres of the plantation contained coco grass. After the sale, Rembert discovered that coco grass covered 225 to 300 acres and patches of it were scattered over nearly all of the plantation. The Supreme Court inNeely affirmed the trial court’s decision to rescind the sale of the plantation, stating:
A vendor who makes a false statement regarding a fact material to the sale, either with knowledge of its falsity, or in ignorance of its falsity, when from his special means of information he ought to have known it, and thereby induces his vendee to purchase, to his damage, is liable, in action at law, for the damage the purchaser sustains through the misrepresentation, or to have the sale rescinded in a suit in equity, at the option of the purchaser.
We now turn our attention to the record before us to determine if there is sufficient evidence to support the chancellor’s decision to rescind the contract between appellants and appellees in accordance with the tests laid down in Matlock. We must review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree. Arkansas State Highway Commission v. Oakdale Development Corporation, 1 Ark. App. 286, 614 S.W. 2d 693 (1981).
Rector testified that when he first looked at the subject property in May, 1976, he and Mr. Ballard did not walk all its corners. Rector did, however, notice the foundation of the house was several feet high, there were nine steps leading from the ground to the house and the air conditioner set on a pedestal. Rector asked Ballard why the house was high, and Ballard said he had set (built) it that high because of the flood in 1927. Although Rector states he did not pursue this matter further, he did ask him if the property flooded. Ballard told Rector there had been a little water on the property in 1969, but the water was on the south end, which he called the wet weather creek. Rector testified he saw no signs of flooding around the house nor did he see any standing on the land in 1976 or 1977 during the period he had the property listed for sale and before he and appellees purchased it. Since Ballard had owned the property over thirty years and stated it had not flooded, Rector said that he did not make an independent investigation of a flood problem.
Contrary to Ballard’s representations to Rector, William Henson, Chief Hydraulic Engineer for the Corps of Engineers, testified there had been four actual flood situations during the last ten years. Studies conducted by the Corps showed that the subject property is completely inundated at least once every ten years. Henson stated the south part of the property floods frequently and the middle part of the property probably floods every two or three years.
Ballard testified he bought the property in 1943 and the house was built originally in 1965. Although Ballard claimed that he did not misrepresent the property to Rector, his trial testimony does confirm much of what Henson stated and what the Corp’s flood studies reflected. Ballard related there were times when water had come on the land but not up to the house. On two occasions, he admitted water covered the entire property, but he could not recall the dates.
On cross examination, Ballard’s responses seem to indicate he believed it was Rector’s responsibility to check out the property further because Rector was a real estate agent. The following exchange took place between Ballard and appellees’ counsel:
Q. In 1976, when you hired Mr. Rector, you wanted — You listed this property at $95,000.00. Right?
A. At first, yes.
Q. You were aware that the property flooded at that time and you still wanted $95,000.00 for the property. Is that correct?
A. Why sure. Who wouldn’t?
Q. All right. Were you aware that if Mr. Rector had sold that property, with it flooding like that, that he could possibly have gotten himself into trouble for misrepresenting it?
A. If I’d been Mr. Rector, I’d a went further than — If ifd been my word for that — about that land I wouldn’t — He should have went further than he did. Being where — The position he’s in in real estate business.
A. He sh — He’s a real estate man and he didn’t — He didn’t — He didn’t list that first for himself. He listed it to sell it to someone else.
Q. So, it’d have been all right if he had sold it to someone else?
A. And if it hadn’t come this 1968, ’78 flood he’d a still had it.
Q. Okay. I understand what you’re telling me, I think. You’re saying that you probably still would have sold that land to Mr. Rector if he hadn’t found out that it flooded in ’78. Right?
A. No. He’d a kept the land because it was in — It wasn’t all that bad. [Emphasis supplied.]
When we review Ballard’s above testimony, it becomes immediately apparent that Ballard possessed, at a minimum, a “buyer beware” attitude when dealing with Rector, and we believe the chancellor could have reasonably con- eluded that Ballard intentionally concealed the water problem from the appellees. The chancellor found Ballard told Rector the property did not and would not flood. Obviously, the trial judge believed Rector’s testimony and rejected Ballard’s claim that he did not misrepresent the property. It is not necessary that evidence be undisputed in order to be clear and convincing if found by the fact finder to carry a conviction to the mind.Kelly v.Kelly, 264 Ark. 865, 575 S.W. 2d 672 (1979). We cannot say that Rector’s testimony was not clear and convincing when reviewed in light of all the other evidence. The chancellor was in a superior position to judge the credibility of the witnesses. The Chancellor’s findings are clearly supported by the evidence and we conclude that his decision is consistent with the law set forth in the cases of Matlock, Neely, and English.
Appellants next argue that the court erred in finding that the appellees had not waived their right to rescind the sale. Appellants rely on the case of Herrick v. Robinson, 267 Ark. 576, 595 S.W. 2d 637 (1980), wherein the Arkansas Supreme Court stated:
One who desires to rescind upon the ground of fraud or deceit must, as soon as he discovers the truth, announce his purpose at once, adhere to it, and act with reasonable diligence, so that all parties may be restored to their original position as nearly as possible; if he continues to treat the property involved in the transaction as his own or conducts himself with reference to the transaction as though it were still subsisting and binding, he will be held to have waived the objection and will be as conclusively bound by the contracts as if the fraud had not occurred.
As discussed earlier, appellees presented evidence that Rector commenced an investigation of the water problem after the September, 1978, flood but did not learn of the flooding history of the property or how often it flooded until July, 1979. Appellees brought suit against appellants on July 6, 1979. In view of this evidence, we simply see no merit in appellants’ waiver argument and agree with the chancellor’s finding that appellees acted promptly to set aside the sale.
Next, appellants argue that the chancellor erred in awarding the sum of 123,780.92 to the appellees. After holding that the sale was to be rescinded, the chancellor stated that the goal of the court was to return the parties to the same position as if the sale had never occurred. The chancellor found the appellees were entitled to the sum of 537,639.27 as follows:
(1) payments toward purchase price totaling 528,178.07;
(2) costs of necessary repairs (other than 1978 flood expenses), which totaled 51,847.06;
(3) costs ofrestoring the property after the 1978 flood of 55,736.92;
(4) taxes paid of 5892.84;
(5) insurance premiums paid of 5984.38.
The chancellor also found that appellants were entitled to deduct from the above total the rental income of the property totaling 59,358.35 and the commission of 54,500 which Rector received on the sale of the property.
Appellant cites the case of Massey v. Tyra, 217 Ark. 970, 234 S.W. 2d 759 (1950), in which the Supreme Court held: “[A] purchaser may not on rescission recover for expenditures made by him on the land after he knew or in good conscience should have known that the contract of purchase would be rescinded, at least when his expenditures add nothing to the value of land, ...” We note, however, that the court in Massey held that the purchaser was entitled to recover his good faith expenditures, and it allowed the expenditures to be recovered even though they added nothing to the present value of the premises. Here, the chancellor found that the expenditures totaling 55,736.92 connected with the 1978 flood were in good faith. The misrepresentation by Ballard went to the very nature and quality of the premises purchased and its fitness for the purpose for which the appellees made the purchase. Additionally, the sale agreement between the parties required the maintenance of the property, requiring the expenditure of $1,847.06, and it also required insurance to be purchased by appellees, requiring a premium payment of $984.38. We agree with the trial court that these expenses were incurred as a direct result of the misrepresentation of the flooding problem.
Finally, appellants contend that the chancellor erred in dismissing the counterclaim of the appellants as being without merit. They argue the chancellor should have ignored the material misrepresentation that induced the sale and allowed foreclosure on their counterclaim because appellees failed to maintain insurance on the property in the face amount of the indebtedness and to furnish Ballard with a copy of the insurance policy.
Appellees were obligated under the note to insure the premises against loss or damage due to fire with extended coverage in an amount at all' times equal to or greater than the total balance owing on the note. Insurance was maintained by the appellees on the house the entire time the appellees owned it, and further, appellants admit receiving a copy of the replacement insurance policy after a request was made.
Appellants are correct in pointing out that appellees did change insurance companies during the time period the property was owned by appellees. However, the property was always insured. The insurance did not equal the balance due on the note, but the testimony reflects insurance was not available for more than the value of the home or $40,000. Further, the chancellor took judicial notice that an insurance company will not insure a home for more than its value.
The parties stipulated below that the house on the property was vandalized. The appellants offered testimony concerning the repairs which would be necessary to put the house in the same condition it was in at the time of the sale to appellees. The chancellor, in his decree, ordered appellees to restore the property within a reasonable time after the property is transferred to the appellants. The chancellor provided that appellants could petition the court if ap-pellees failed to restore the house. The record does not reflect that appellants have petitioned the chancellor regarding this issue, and we, therefore, do not disturb the chancellor’s jurisdiction for any further relief on this issue.
We affirm.
Affirmed.
Cloninger and Cooper, JJ., dissent.
Corbin, J., not participating. | [
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Donald L. Corbin, Judge.
Appellees, Fred Walton Realty Company and Southall Investments, Inc., entered into an exclusive listing contract to sell, exchange, lease or rent land owned by appellant, Dodson Creek, Inc. Dodson Creek, Inc. was trying to develop the property as a shopping center.
The exclusive listing agreement between the parties was for one year. The agreement also contained an automatic extension clause of 180 days unless the contract was can-celled in writing by Dodson Creek, Inc. It was not so cancelled, therefore, the listing contract expired October 14, 1978.
The contract also contained the following provision which is critical to this appeal:
[I]f the property be sold, exchanged, leased, rented or otherwise disposed of after the expiration of this contract to any person or organization to whose attention said property was brought through the efforts or services of Agent or on information secured directly or indirectly from or through Agent during the term of this contract, then Agent shall be conclusively presumed to be the procuring cause of such transaction, in which case Owner agrees to pay Agent the professional fee as set forth above.
During the term of the contract, appellees attempted to sell Safeway a site in the shopping center. The negotiations began in the summer of 1977 and a proposal was submitted through the local Safeway office to the home office in California on April 7, 1978. It was rejected by Safeway on April 25, 1978, and appellees did nothing after that date to sell Safeway a site in appellant’s shopping center.
After appellees’ listing contract expired on October 14, 1978, appellant entered into a listing contract with Danny Thomas Co. on November 22, 1978.
Safeway approved a site in another shopping center across the street from appellant’s shopping center. About two weeks before Safeway was to close this deal (which was about 2 months after the expiration of the 180 day extension clause to the listing agreement between appellant and appellees), negotiations began between Danny Thomas Co. and Safeway representatives concerning the Dodson Creek, Inc. property. Safeway took an option on the Dodson Creek, Inc. property in August of 1979, the option was exercised in December of 1979, and the purchase was closed in January of 1980. Safeway purchased essentially the same site originally considered with changes in the size and price.
While negotiations between Safeway representatives and Danny Thomas Co. concerning the Dodson Creek, Inc. property were continuing, appellees notified the appellant by a letter dated April 17, 1979 that Safeway and twenty-five other businesses had been contacted by the appellees and were listed as reserved clients.
Appellant paid the Danny Thomas Co. a ten percent commission on the #310,920 sale to Safeway. Appellees demanded that they receive a ten percent commission which appellant refused to pay. Appellees filed suit against appellant for a ten percent commission alleging that they acted as the procuring cause of the sale.
Judgment was entered on a jury verdict in favor of appellees for the sum of #31,092. This appeal follows.
Appellant argues that the Court erred in not granting its request for a directed verdict, judgment notwithstanding the verdict and a new trial for appellees’ failure to plead and prove a cause of action.
The proper prequisite for both a directed verdict and a judgment notwithstanding the verdict was not fulfilled by the appellant. The court properly denied these motions.
At the close of appellees’ case-in-chief, appellant made the following motion.
At the close of the plaintiffs case and the plaintiffs having announced that plaintiffs rested, the defendant moved for a directed verdict.
At the close of the case, appellant made the following motion for a directed verdict:
The first thing is that the defendant would move the court to direct a verdict for the reason that plaintiffs have neither alleged nor proved a cause of action.
The trial court ruled that:
[T]he motion for a Directed Verdict made by the Defendant at the close of the case was not sufficiently specific to apprise the court of the defendant’s ground for making the motion and, therefore, does not constitute a sufficient prerequisite for the making of a motion for judgment notwithstanding the verdict.
Rule 50(a) of the Arkansas Rules of Civil Procedure states in pertinent part:
A motion for a directed verdict shall state the specific grounds therefor. ... The motion may also be made at the close of all of the evidence and in every instance the motion shall state the specific grounds therefor.
The requirement that specific grounds be stated in a motion for a directed verdict is mandatory and failure of the motion to state the specific grounds relied on is in itself sufficient basis for denial of the motion. Svestka v. First Nat'l Bank in Stuttgart, 269 Ark. 237, 602 S.W. 2d 604 (1980). Wright & Miller, Federal Practice and Procedure: Civil § 2533.
A motion for a directed verdict is a condition precedent to moving for a judgment notwithstanding the verdict. It must state the grounds on which it is made. Since it is technically only a renewal of the motion for a directed verdict made at the close of evidence, it cannot assert a ground not included in the motion for directed verdict. Wright & Miller, Federal Practice and Procedure: Civil § 2537.
The basis of appellant’s motion for judgment notwithstanding the verdict was Ark. Stat. Ann. § 71-1302 (Repl. 1979) which provides in part:
No recovery may be had by any broker or salesman in any court in this State on a suit to collect a commission due him unless he is licensed under the provisions of this act and unless such fact is stated in his complaint.
The matters raised in the motion for judgment notwith standing the verdict had never before been mentioned in either of the motions for directed verdict and under the authority previously cited, were waived. Furthermore, the statute had neither been pled in answers, nor had it ever been raised in prior motions.
This very point has previously been ruled upon by the Arkansas Supreme Court in St. Louis Union Trust Co. v. Hammans, 204 Ark. 298, 161 S.W. 2d 950 (1942). Act 148, Section 2, Acts 1929 (Ark. Stat. Ann. § 71-1302), was also in issue there. In that case, during the trial, the claimant real estate broker had not pled or proved that he was a licensed real estate broker. The defendant, against whom a recovery had been made, on appeal for the first time, raised the provisions of the statute. The Supreme Court disposed of the issue as follows:
The statute referred to above was not invoked by appellants as a defense in the court below. In other words, it is raised as a defense for the first time in this court. This court ruled in the case of Bolen v. Farmers’ Bonded Warehouse, 172 Ark. 975, 291 S.W. 62 (quoting syllabus 3), that: “Issues not raised by the pleadings nor by requested instructions will not be considered on appeal.”
Because this matter is raised for the first time on appeal and the appellant did not specifically raise the statute in defense or in a motion to dismiss, this matter shall not be considered by the Court.
Next, appellant argued that the court erred in giving certain instructions to the jury over appellant’s objections and refusing to give those instructions requested by appellant. The appellee offered the following instructions:
PLAINTIFFS’ REQUESTED INSTRUCTION NO. 6
AMI 1012 Modified
Fred Walton Realty Company and Southall Investments, Inc., assert two separate grounds for the recovery of damages:
First: That the property was sold after the expiration of the contract to Safeway Stores, Incorporated, to whose attention said property was brought through the efforts or services of them or on information secured directly or indirectly from or through them during the term of the contract, and,
Second: That they were the procuring cause of the sale of the property to Safeway Stores, Inc.
It will be necessary for you to consider separately each asserted ground for recovery. If you find from the evidence that every essential proposition with respect to any one ground for recovery has been proved, then your verdict should be for Fred Walton Realty Company and Southall Investments, Inc., and against Dodson Creek, Inc.; but if you find from the evidence that any essential proposition with respect to any one ground for recovery has not been proved, then your verdict with respect to that ground for recovery should be for Dodson Creek, Inc.
PLAINTIFFS’ REQUESTED INSTRUCTION NO. 7
By “procuring cause,” it is meant that if, after the property is placed in the agent’s hands, the sale is brought about or procured by the agent’s advertisements or exertions, the agent will be entitled to a commission; or if the agent introduces the purchaser or discloses his name, to the owner, and through such introduction or disclosure, negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions, though the sale may be made by the owner.
PLAINTIFFS’ REQUESTED INSTRUCTION NO. 8
The exclusive listing contract under which Fred Walton Realty Company and Southall Investments, Inc., seek to recover contains the following provision:
“(If) the property be sold, exchanged, leased, rented, or otherwise disposed of after the expira tion of this contract to any person or organization to whose attention said property was brought through the efforts or services of Agent or on information secured directly or indirectly from or through Agent during the term of this contract, then Agent shall be conclusively presumed to be the procuring cause of such transaction in which case Owner agrees to pay Agent the professional fee as set forth above.”
If you find that the property was sold after the expiration of the contract to a person or organization to whose attention said property was brought through the efforts or services of Fred Walton Realty Company and Southall Investments, Inc., then plaintiffs are entitled to the presumption that they were the procuring cause of the sale.
Specific objections made by the appellant to these instructions were: (1) they did not include a requirement that there be causation between the activities of appellees and the ultimate sale to Safeway; (2) there was no requirement that the ultimate sale occur within a reasonable time after the expiration of the contract; and (3) there was no requirement that appellees notify appellant during the term of the listing contract of their intention to claim Safeway as a reserve client and claim a commission if the property were sold to Safeway.
The appellant requested the following instructions which were denied by the Court:
DEFENDANT’S REQUESTED INSTRUCTION NO. 8
The plaintiffs claim the defendant owes the plaintiffs a commission for the sale of land by the defendant to Safeway.
To be entitled to recover in this case, the plaintiffs must prove that their efforts were the efficient, procuring, proximate or inducing cause of this sale. That is, the sale was the direct and proximate result of their efforts.
When I use any one of these terms, I mean a cause originating or setting in motion a series of events which without break in continuity result in the procurement of a purchaser who is ready, willing and able to buy on defendant’s terms.
While it is not essential that the plaintiffs’ efforts be the sole cause of the sale, it is essential that they be the predominately effective cause and they are not sufficient to entitle them to a commission where they are merely an indirect, incidental or contributing cause.
DEFENDANT’S REQUESTED INSTRUCTION NO. 11
You are instructed that unless you find from a preponderance of the evidence that the sale to Safeway proximately resulted from the efforts of the plaintiffs, within a reasonable time after the expiration of the listing contract and that the plaintiffs notified the defendant before the expiration of the listing contract that the plaintiffs claimed Safeway as a reserve client, the plaintiffs are not entitled to recover from the defendant.
DEFENDANT’S REQUESTED INSTRUCTION NO. 11-A
You are instructed that unless you find from a preponderance of the evidence that the sale to Safeway proximately resulted from the efforts of the plaintiffs, within a reasonable time after the expiration of the listing contract, the plaintiffs are not entitled to recover from the defendant.
DEFENDANT’S REQUESTED INSTRUCTION NO. 11-B
You are instructed that unless you find from a preponderance of the evidence that the sale to Safeway proximately resulted from the efforts of the plaintiffs, the plaintiffs are not entitled to recover from the defendant.
. We initially reversed on this point. We held that the jury in the instant case should have been instructed as to whether the appellees introduced the purchaser or disclosed his name to the owner and through such introduction or disclosure, negotiations were begun and the sale of property to Safeway was effected within a reasonable time after the expiration of the listing period.
As authority, we quoted the following cases:
In Moore v. Holman Real Estate Co., 129 Ark. 465, 196 S. W. 479(1917), the Supreme Court upheld a directed verdict for a real estate broker’s commission in a similar situation as here, but plainly recognized reasonable time as being an element. The Court stated that:
It is also finally insisted that a sale would have to be made within a reasonable time on this information, in the absence of bad faith on the part of the owner, to make the owner liable. If this be conceded, we think it may be said, as a matter of law, that the sale was made within a reasonable time, as the sale was perfected within two months after the expiration of the contract. (Emphasis supplied.)
In Beck v. Neal, 228 Ark. 186, 306 S.W. 2d 875 (1957), the Court considered the following language contained in a broker’s contract:
The Owner further agrees to pay the commission set forth in Paragraph 2 to the Agent if the property be sold or otherwise disposed of by any other person, association or corporation, including the Owner, after the expiration of the above listing period, when such sale or other disposition of the property resulted from or was based upon information given by or obtained through the Agent, with notice thereof to the Owner, during the period of this contract.
The Court, in authorizing the real estate broker a fee for a sale that took place by the owner after the expiration of the contract, stated the following:
The sale by appellees to Alexander within a reasonable time thereafter upon the exact terms of the listing contract and upon information given and obtained through the appellant, with proper notice to appellees, rendered them liable to appellant for the commission of 5 per cent. (Emphasis supplied.)
See also, 51 A.L.R. 3d 1149, § 17.
In Green v. Toney, 257 Ark. 853, 520 S.W. 2d 290(1975), the Supreme Court in ruling on whether a real estate broker was entitled to his commission following the sale by the owner after the expiration of a six-month option held:
If May had bought the property five minutes after the expiration of the option the brokers’ right to a commission could hardly be disputed, while if the purchase had been made five years later Green’s position would be equally strong. Between the extremes there is a middle ground that falls within the jury’s province.
In E. C. Stromberg v. Seaton Ranch Co., 160 Mont. 293, 502 P. 2d 41 (1972) the Court made the following statement about reasonableness of time:
Under usual circumstances time allowed to protect the broker after expiration of the principal listing under a protective paragraph, if no time period is named, is held to be a reasonable time. Reasonable time in transactions of this type is determined by the nature and character of the service to be rendered, magnitude of the undertaking, the intention of the parties, and all the facts and circumstances of the case. 12 C.J.S. Brokers § 88, page 203.
On rehearing, appellees rely on Arkansas Rules of Civil Procedure Rule 51 which reads in pertinent part:
... No party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.
A mere general objection shall not be sufficient to obtain appellate review of the trial court’s action relating to instructions to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.
In their Response to the Petition for Rehearing, the appellants rely on Arkansas Rules of Civil Procedure Rule 46 which provides in part:
Formal exceptions to ruling or orders of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary, it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and its grounds therefor; ...
Since ARCP 51 is specifically directed toward jury instructions it controls in this case.
One who has not asked a proper instruction on the subject cannot complain of the refusal of the court to give an improper one. Western Union Telegraph Co. v. Ford, 77 Ark. 531, 92 S.W. 528 (1906). A party entitled to an instruction on a subject, but requesting an erroneous instruction, may not complain of failure to charge on the subject.Newman v. Peay, 117 Ark. 579, 176 S.W. 143 (1915). While defendant is entitled to have his theory of the case submitted to the jury, it is his duty to prepare and request a correct instruction embodying it. Bovay v. McGahhey, 143 Ark. 135, 219 S.W. 1026 (1920). A trial court need not give instruction which needed explanation, modification or qualification. Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304 (1948).
The instructions offered by the court were correct in what they stated relative to the issue of procuring cause. The Supreme Court held in Scott v. Patterson and Parker, 53 Ark. 49, 13 S.W. 419 (1890) that:
If, after the property is placed in the agent’s hands, the sale is brought about or procured by his advertisements, and exertions, he will be entitled to his com missions. Or if the agent introduces the purchaser or discloses his name to the owner, and through such introductions or disclosure, negotiations are begun, and the sale of the property is effected, the agent is entitled to his commissions, though the sale may be made by the owner.
Since the appellant failed to offer proper instructions regarding the issue of reasonable time, we must affirm the decision.
Affirmed.
Mayfield, C.J., concurs.
Glaze, J., dissents. | [
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George K. Cracraft, Judge.
The appellant, Raymond Keathley, Jr., filed his complaint alleging that he had on October 14, 1978, leased an apartment to the appellee, Diversified Fastener & Tool Company, for the use of one of its employees, Anita Kramer, in which the appellee agreed to pay the rent. Appellant further alleged that in January 1979 the appellee terminated the lease but that Anita Kramer refused to give up possession. During the holdover tenancy appellant claimed that the premises had sustained damage for which he sought recovery. He prayed for judgment for those damages and a reasonable rental for the period during which possession was wrongfully withheld. The appellee answered asserting that it had only entered into a month to month rental agreement with appellant, and that after the termination of that agreement any holding over was solely attributable to Anita Kramer.
After hearing evidence, the court sitting without a jury found that the property had sustained damage, but that the appellee was not obligated for payment of those damages and that appellee was not liable for double damages for failure to return possession. It found that Anita Kramer had not been served with process and therefore no judgment had been rendered against her. On those facts the court entered judgment against the appellee for the accrued rentals in the sum of $600, but denied claims for double rent and damages. The appellant appeals from that judgment.
The appellant argues in support of his position that he was entitled to double damages under Ark. Stat. Ann. § 50-507 (Repl. 1971) which does provide for assessment of double rent if any tenant gives notice in writing of his intentions to quit the premises but fails to deliver possession of the property at the time specified in the notice. The answer to appellant’s contention is twofold. First, it appears from the record that there was no prayer for award of double damages in his complaint or any other subsequent pleading. Special damages must always be specifically plead. Arkansas Power & Light Company v. Harper, 249 Ark. 606, 460 S.W. 2d 75. The second and more compelling answer is the fact that the transcript of the testimony on which the trial court made its findings that appellee was not liable for double rent or damage to the property was not brought forward in this record. Evidence of failure to give the written notice and that the property damage was not attributable to appellee would justify the order made. Without a transcript of the testimony there is no way that this court can determine what facts the trial court considered in making its findings and conclusions. Our law has long been established that where the proceedings had before the trial court are not preserved and brought forward in the record, the appellate court must presume that the absent material was sufficient to support the trial court’s findings and decree. Watson v. Jones, 233 Ark. 203, 343 S.W. 2d 415.
We affirm. | [
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JUDITH Rogers, Judge.
This is an appeal from a subrogation action brought by American States Insurance Company (American States) against Southern Guaranty Insurance Company (Southern Guaranty), the appellee. American States argues on appeal that the trial court erred in entering summary judgment in favor of Southern Guaranty. We find no error and affirm the trial court.
We discussed summary judgment in Wozniak v. Colonial Insurance Co., 46 Ark. App. 331, 885 S.W.2d 902 (1994), as follows:
The party moving for summary judgment must show that there is no genuine issue as to any material fact and the moving party is entided to judgment as a matter of law. Keller v. Safeco Ins. Co., 317 Ark. 308, 877 S.W.2d 90 (1994). All proof submitted must be considered in the light most favorable to the non-moving party, and any doubts or inferences must be resolved against the moving party. Id. On appeal, the court determines if summary judgment was proper based on whether the evidence presented by the movant leaves a material question of fact unanswered, id. at 311-12, and summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals an aspect from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ. Baxley v. Colonial Insurance Co., 31 Ark. App. 235, 240, 792 S.W.2d 355 (1990).
46 Ark. App. at 332.
The facts in this case are uncontroverted. In May 1992, the Hoffinan-Henry Insurance Corporation of Pine Bluff acted as agent for both parties. On May 11, Pierre Welter obtained automobile insurance through the agency with Southern Guaranty. Welter returned on May 22 to obtain homeowner’s coverage. After Southern Guaranty refused to write the coverage, the agency, by its employee Sandra Smith, called American States to obtain the homeowner’s coverage. American States agreed to provide the insurance if Welter would also place his automobile insurance and life insurance with American States. Smith then informed Southern Guaranty that Welter’s automobile insurance was being canceled so that he could place the insurance with American States and obtain homeowner’s insurance. On May 23, Smith issued an oral binder for the automobile coverage with American States. Welter’s wife was at fault in an automobile accident that occurred on May 27. American States paid damages of $9,414.28 and then filed a complaint against Southern Guaranty, asserting that Welter’s automobile policy with Southern Guaranty was still in effect on May 27. Southern Guaranty specifically denied that the automobile insurance issued by it was in force and effect on that date. Southern Guaranty then moved for summary judgment, attaching the affidavit of Sandra Smith. The trial court granted summary judgment, finding that Southern Guaranty’s policy had been canceled and was not in force and effect on May 27.
Where the operative facts of the case are undisputed, as here, this court simply determines on appeal whether the appellee was entitled to summary judgment as a matter of law. Hertlein v. St. Paul Fire & Marine Ins. Co., 323 Ark. 283, 284, 914 S.W.2d 303 (1996); Doe v. Central Arkansas Transit, 50 Ark. App. 132, 136, 900 S.W.2d 582 (1995).
On appeal, American States argues that because there was no overt act by Welter to cancel the Southern Guaranty policy, there was not an effective cancellation of the policy. In support of this argument, American States relies on the supreme court’s holding in Yant v. Bowker, 248 Ark. 826, 454 S.W.2d 84 (1970). In that case, an insurance company sought to collect an unpaid insurance premium. The insured responded that the policy had been canceled pursuant to his statement to the insurance agent that he did not have the money for the insurance and that “he might as well go ahead and cancel it.” 248 Ark. at 828. In finding that the insured failed to prove cancellation of the policy, the supreme court stated:
In the case of Commercial Union Fire Ins. Co. v. King, 108 Ark. 130, 156 S.W. 445, the insurance company was defending a claim for loss due to fire on the ground that the insurance company had cancelled the policy before the fire. In that case the court said:
“The notice must be given to the insured, and it should state not merely the intent to cancel, if some condition be not complied with, but it must be an actual notice of cancellation within the meaning of the policy and so unequivocal in its form, that the insured may not be left in doubt that his insurance will expire on the time limited by the terms of the notice, and that the company will not be liable for any loss after the expiration of that time.” (Emphasis supplied).
No less notice should be required when the insured is the party attempting to cancel the policy. The appellant has the burden of proving the affirmative defense of cancellation of the policy in order to avoid payment of the premium, and the trial court found that the appellant failed in carrying that burden in the case at bar. The conversation of the appellant with the appellee, as testified by the appellant, indicates at most, a mere intention on the part of the appellant to cancel the policy. Certainly this is true in the absence of any showing by the appellant of any overt actions that he took in order to effectuate the cancellation of the policy.
In Cooley’s Briefs on Insurance, vol. 5, p. 4647, the following rule is stated:
“. . . even in case of a cancellation of the contract by the insured, the mere intention to cancel will not be sufficient without some overt act giving the company notice that the contract is at an end.”
248 Ark. at 829.
American States interprets the court’s ruling as requiring written notice before an insured can effectively cancel an insurance policy. We do not agree with this interpretation. Although the supreme court did not specify what kind of overt act was required to cancel the policy, we believe that the court was not saying that an insured is required to provide written notice but is required to follow the general rule found in 6A Appleman, Insurance Law and Practice § 4226 (Rev. ed. 1972): “A request for cancellation of a policy must be unequivocal and absolute.” See also 45 C.J.S. Insurance § 513 (1993); 17 Couch on Insurance 2d § 67:144 (Rev. ed. 1983).
In the case at bar, American States presented the record of an interview with Sandra Smith in which she stated that on May 22, she explained the circumstances to Southern Guaranty; informed Southern Guaranty that Welter’s automobile policy, which the agency had not received at that time, was being canceled effective May 23; and informed Southern Guaranty that when the policy was received, she would mark it “cancel effective May 23, 1992,” and return it. Smith’s affidavit provided in part:
8. Southern Guaranty did not have any policy of insurance in effect covering Mr. and Mrs. Welter at the time of the accident on May 27, 1992. Southern Guaranty had previously been verbally advised that their policy issued on May 11, 1992, was canceled “flat” at the request of Mr. Welter on May 22, 1992. The reason for the change was because Mr. Welter needed to obtain automobile and life insurance policies from American States before American States would cover his company-owned home as well. Southern Guaranty was verbally advised of the cancellation because, although we had previously ordered a policy issuing coverage to Mr. and Mrs. Welter, we had not received the policy in our office at the time of the “flat” cancellation.
9. A “flat” cancellation means that there was no earned premium. In other words, if an insured wishes to cancel a policy within the first thirty (30) days of coverage, as long as the insured has incurred no losses within that thirty day period, no premium is charged to the insured and he is given a full refund of any premiums he has paid.
10. There was no applicable grace period regarding the “flat” cancellation of Southern Guaranty’s automobile policy. The policy was retroactively canceled back to May 11, 1992 (the initial date of coverage) and the entire premium was returned in full to Mr. Welter.
American States urges that Welter failed to take any overt action and “simply acquiesced to the advice of the agent that he should cancel his Southern Guaranty policy in favor of the policy with American States.” Here, Smith conveyed Welter’s notice of cancellation by telephone to Southern Guaranty in clear terms and specified the exact date of cancellation.
A due request for, or notice of, cancellation made to the insurance company or its authorized agent may be sufficient to effect a cancellation of an insurance policy. Notice or request usually is necessary to effect a termination of the policy, and a communication concerning cancellation must be delivered to the company or its authorized agent. The insurance company must receive actual notice of the cancellation.
45 C.J.S. Insurance § 513 (1993). “Generally, a policy may be canceled by the insured or his proper representative only. Where an agent or broker has authority, either express or implied, to cancel a policy, a termination upon his request is valid.” 6A Appleman, Insurance Law and Practice § 4224 (Rev. ed. 1972). We find that there was nothing uncertain about the notice set out in the case at bar. Southern Guaranty could not fail to understand that Welter had exercised his right to cancel the policy and had canceled it. The requirement of providing actual notice of cancellation set out in Yant v. Bowker, supra, the case relied on by American States, therefore was satisfied.
American States also argues that the cancellation was deficient because it was not in strict compliance with the policy provision on cancellation. This issue, however, was not preserved for appellate review. American States did not raise the issue at the trial level in the complaint, response to motion for summary judgment and countermotion for summary judgment, or brief in support of the motion. We have often stated that we will not address an issue on appeal that was not raised below. Keesee v. Keesee, 48 Ark. App. 113, 117, 891 S.W.2d 70 (1995); Arkansas State Highway Comm’n v. Lee Wilson & Co., 43 Ark. App. 22, 27, 858 S.W.2d 137 (1993).
Affirmed.
Pittman and Cooper, JJ., agree. | [
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John B. Robbins, Judge.
Appellant, Katherine Kennedy, appeals an order of the Lonoke County Chancery Court that amended the parties’ 1983 divorce decree. She contends that the chancellor erred in holding that the parties’ property settlement agreement was subject to modification and in modifying the award of alimony. We agree that the chancellor was without authority to modify the property settlement agreement and therefore reverse and remand.
On December 15, 1983, a decree of divorce was entered by the Lonoke County Chancery Court, awarding appellant a divorce from appellee. The decree also approved and incorporated the parties’ written property settlement agreement that provided in part:
3. Husband agrees to pay to the Wife unless she should remarry the sum of $250.00 on the first and fifteenth of each and every month as support for the Wife. . . .
6. It is agreed that the Wife shall be entided to one-half (V2) of the retirement benefits of the husband through his railroad retirement as if the parties were still married.
The property settlement agreement bears the notarized signatures of both parties, and no other disposition of the parties’ property or rights were included in the decree except those that appear in the property settlement agreement. Appellee paid appellant $500.00 monthly alimony pursuant to this agreement and continued to do so until June 15, 1994, when appellee sent appellant a $250.00 payment, marking it “final payment.” Included with his payment was a note that stated his obligation to pay appellant support had ended because she was now able to draw from his railroad retirement.
Appellant petitioned the chancery court for declaratory relief, requesting that the court construe and interpret the terms of the parties’ 1983 decree and to take such action as necessary to enforce those terms. Appellee responded that it was the parties’ intention when they executed the property settlement agreement that alimony would cease when appellant became eligible to receive one-half of appellee’s retirement benefits. He further argued that it would be unconscionable to award appellant one-half of his retire ment benefits in addition to alimony and that the property settlement agreement is not an independent contract and is therefore subject to modification by the court.
After a hearing on appellant’s petition, the chancellor entered his order, holding that he had the power to modify and reform the previous agreement of the parties. The chancellor found that the parties did not intend for appellant to continue to receive $500.00 monthly alimony after she became eligible to draw on appellee’s railroad retirement benefits. The chancellor modified the agreement to reduce appellant’s alimony award to $72.33 per month, which represents the difference between-the retirement benefits that she was eligible to receive and the $500.00 per month spousal support that she had been receiving.
We agree with appellant that the chancery court did not have authority to modify her alimony payments. The alimony provision is part of the parties’ written property settlement agreement, which is an independent contract between the parties. Where a decree of alimony is based on an independent contract between the parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court’s award and is not subject to modification except by consent of the parties. Kersh v. Kersh, 254 Ark. 969, 973, 497 S.W.2d 72 (1973). Decisions of this court and the supreme court have recognized two different types of agreements for the payment of alimony:
One is an independent contract, usually in writing, by which the husband, 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 Bacchus [Bacchus v. Bacchus, 216 Ark. 802, 227 S.W.2d 439 (1950)] 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.” Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am. St. Rep. 102, which construed an agreement of the first type, and Holmes v. Holmes, 186 Ark. 251, 53 S.W.2d 226, involving an agreement of the second type. See also 3 Ark. L. Rev. 98. 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 proof upon an issue not in dispute, and by its nature it merges in the divorce decree. In the Holmes case we held that the second type of contract does not prevent the court from later modifying its decree.
Seaton v. Seaton, 221 Ark. 778, 780, 255 S.W.2d 954, 956 (1953). See also Armstrong v. Armstrong, 248 Ark. 835, 838, 454 S.W.2d 660, 662 (1970); McGaugh v. McGaugh, 19 Ark. App. 348, 350-51, 721 S.W.2d 677, 679 (1986).
The burden was on appellant to show that the parties intended to have an independendy enforceable contract for support. See Songer v. Songer, 267 Ark. 1075, 1077, 594 S.W.2d 33, 35 (Ark. App. 1980). Although there was no testimony presented by the parties at the hearing in regard to their intent when they executed the property setdement agreement, we find that the wording of the agreement and the actions of the parties at the time of the divorce clearly show that the parties intended to have an independent contract.
The parties’ agreement was in writing and contained eleven separate provisions that covered the division of their property, including appellee’s agreement to pay appellant alimony. There is no other provision in the decree that discusses the parties’ property rights or makes a provision for alimony except what is mentioned in the property setdement agreement. Furthermore, the property set-dement agreement specifically provides:
8. It is the purpose of the parties to this agreement that it fully and finally setde, resolve and terminate any and all claims, demands and rights of whatever kind or nature between the parties.
9. Either party hereto may petition the Court in the aforesaid suit for divorce to incorporate this agreement into any decree which may be entered therein and to give this instrument the full force and effect of a decree of the Court.
The agreement was signed by the parties after they had an opportunity to make any corrections to the agreement, which in fact they did. It stands to reason that appellee would not have signed a waiver of his appearance at the divorce hearing if he had believed that the parties’ rights had not been settled at the time he signed the property settlement agreement.
Appellee relies on the supreme court’s holding in Shipley v. Shipley, 305 Ark. 257, 807 S.W.2d 915 (1991), for his proposition that, because the language in the property settlement agreement did not specifically state that the parties intended it to be an independent contract, the chancellor’s finding that the agreement was subject to modification is correct. In Shipley, however, there was not a separate property settlement agreement executed by the parties but a stipulation that was dictated into the record during the course of the hearing. In discussing this distinction, the court stated:
The independent property settlement will usually be in the form of a separate written agreement, Seaton v. Seaton, supra, but it may be in the form of a complete property settlement which is dictated into the record. Kunz v. Jarnigan, 25 Ark. App. 221, 756 S.W.2d 913 (1988). Obviously, if the parties intend for an agreement which is dictated into the record to constitute an independent agreement they should so state.
305 Ark. at 259, 807 S.W.2d at 916.
We also disagree that our decision in Songer v. Songer, 267 Ark. 1075, 594 S.W.2d 33 (Ark. App. 1980), controls the outcome of this appeal. That case did not involve a separately executed property settlement agreement, but a decree providing for alimony, child support, and a detailed division of property that had been presented to the chancellor for his signature after it had been approved as to form and substance by the parties and their respective attorneys. The chancellor later held that the alimony part of the decree was not subject to modification because he had nothing to do with the division of the property and it was strictly the parties’ dealings. Nevertheless, in another part of the order, the chancellor relieved the appellant of his obligation under the decree to pay for insurance for the appellee’s car. In reversing the chancellor’s determination that the alimony portion of the decree was not subject to modifica tion, this court stated:
To us, it seems highly inconsistent that the chancellor would say the decree was “contractual” and thus not subject to modification with respect to one aspect of support for the appellee but not as to another. More importantly, however, we find no evidence in the record to show the decree should be regarded as an independent contract which would make the decree unmodifiable.
.... It seems clear in this case the parties were agreeing to the contents of the suggested decree when they signed it and presented it to the chancellor. The decree did not mention any separate agreement, and there is nothing, written or otherwise, showing intent that any agreement be enforceable separately from the decree.
Id. at 1076-77, 594 S.W.2d at 34.
In her petition for declaratory relief, appellant requested the court to construe and interpret the parties’ property settlement agreement. The order of the chancellor recites that the intent of the parties was that the alimony would terminate when appellant became eligible to collect appellee’s retirement. However, when a contract is unambiguous, its construction is a question of law for the court, see Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark. App. 226, 228, 821 S.W.2d 59, 60 (1991), and the intent of the parties is not relevant. Here, neither provision number three, which addresses alimony, nor number six, which addresses retirement benefits, is ambiguous, nor do they make any reference to the other provision. By a handwritten insertion, the alimony provision of the property settlement agreement was corrected to provide that alimony would terminate upon the remarriage of appellant. No such correction was made in reference to appellant’s becoming eligible to collect retirement benefits.
Appellee contends that the chancellor’s decision can be affirmed based upon his showing of fraudulent inducement that brought about his execution of the property settlement agreement. There is no evidence, however, to support such a finding. Appellee testified at trial that he received legal advice from Mr. Darrow and that he attended a conference where he, Mr. Darrow, and Mr. Feland (appellant’s lawyer) were present before he signed the contract. He also admitted that appellant never did tell him that she thought that the alimony was going to cease after she started getting her share of retirement.
We also find no merit to appellee’s contention that the award of alimony beyond his retirement age violates federal law. The federal act upon which appellee relies for his argument prohibits a court from awarding a spouse a community interest in certain federal retirement benefits. Appellee argues that, if he is required to pay alimony beyond retirement age, he will have to make those payments from his Tier I benefits, which are not divisible under federal law. Appellee, however, has not cited any law that restricts him from paying alimony from retirement benefits that he might receive. The fact that appellee now finds that he has entered into an improvident agreement is not grounds for relief. See Armstrong v. Armstrong, 248 Ark. 835, 838-39, 454 S.W.2d 660, 663 (1970).
Accordingly, we reverse and remand this appeal to the chancery court for reinstatement of appellant’s alimony and to enter judgment in favor of appellant for the unpaid alimony that has accrued to date.
Reversed and remanded.
Jennings, C.J., and Griffen, J., agree. | [
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JOHN Mauzy Pittman, Judge.
The appellant, Geraldo Ramirez, appeals from a decision of the Arkansas Workers’ Compensation Commission which denied his claim for benefits after he sustained an injury as a result of an encounter with a co-employee.
The Commission held that appellant’s right-eye injury was noncompensable. Arkansas Code Annotated § ll-9-401(a)(2) (1987) states that an injury is noncompensable if “substantially occasioned ... by willful intention of the injured employee to bring about the injury or death of himself or another.” Appellant argues that the Commission’s decision is not supported by substantial evidence as there is nothing to indicate that he had a willful intention to injure a co-worker.
Appellant worked in the sanitation area of appellee’s processing plant washing machinery with a water hose. Appellant’s co-worker, Chester Moore, testified that he and appellant worked adjacent to each other and that Moore had reported to his supervisor an ongoing problem of co-workers spraying him with water. On March 22, 1993, Moore said that appellant sprayed him with water, but Moore did not think it was deliberate. Moore testified that he told appellant to stop getting him wet. When Moore continued to get sprayed with water, Moore aggressively warned appellant to stop getting water on him. Appellant, who has limited English and education, acted as if he did not understand. Appellant then struck Moore on his left cheek with an open hand. Moore said that the blow was not forceful enough to knock him down, to cause him to rock back, or to injure him. Moore then hit appellant in the right eye, causing serious injury.
Appellant denied hitting Moore. Appellant stated that he was injured when he was pushed from behind, which caused him to fall forward and strike his face on the machinery.
For appellant’s injury to be found noncompensable under Ark. Code Ann. § 11-9-401(a) (2) (1987), appellant must have had a “willful intention” to “injure” himself or another. A willful intention to injure denotes “premeditated or deliberate misconduct,” rather than a sudden or impulsive act, and includes a physical force that is designed to inflict “real injury.” Johnson v. Safreed, 224 Ark. 397, 273 S.W.2d 545 (1954). A willful intent to injure obviously contemplates behavior of greater gravity and culpability than what may be characterized as aggression. Id. (quoting 1 A. Larson, Workmen’s Compensation Law § 11.15(d)).
The Commission found that appellant’s conduct was premeditated and rose to willful misconduct; thus, appellant’s injury was noncompensable. On appeal of a workers’ compensation case, we review the evidence in the light most favorable to the Commission’s decision and affirm if it is supported by substantial evidence. Plante v. Tyson Foods, Inc., 319 Ark. 126, 890 S.W.2d 253 (1994). Substantial evidence exists if reasonable minds could have reached the same conclusion. Id. Thus, before we reverse the Commission’s decision, we must be convinced that fair-minded persons considering the same facts could not have reached the conclusion made by the Commission. Id.
In Johnson, supra, a dispute arose between the claimant and a co-worker. The claimant stated that he struck his co-worker because he felt threatened. The court held that the injury was compensable because the claimant’s action was an impulsive light blow given in an attempt to protect himself and was not “of that serious or deliberate character necessary or essential to evince a willful intention” to injure. Johnson, 224 Ark. at 405. Although Johnson was decided before § 11-9-401 was enacted, we find its reasoning controlling. Arkansas Code Annotated § 11-9-401 does not define “injury.” However, Johnson, supra, speaks of a “real injury,” and one of “serious or deliberate character.” Here, appellant’s actions do not warrant a denial of benefits. Because we conclude that the Commission’s decision is not supported by substantial evidence, we reverse and remand for an award of benefits.
Reversed and remanded.
Cooper and Rogers, JJ., agree.
Arkansas Code Annotated § 11-9-401(a)(2) (Supp. 1995), applicable to injuries sustained after July 1, 1993, states that there shall be no liability when the injury was “substantially occasioned by the willful intention of the injured employee to bring about such compensable injury.” | [
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John B. Robbins, Judge.
Appellant Virginia Dovers sued appellees Stephenson Oil Company and William Guffey for negligence, alleging that she suffered damages as a result of an accident in which her car was struck from behind by a tractor-trailer rig being driven by Mr. Guffey. At the time of the accident, Mr. Guffey was an employee of Stephenson Oil Company. After a jury trial, the jury returned a verdict for the appellees. Ms. Dovers filed a motion for new trial, which was denied, and she now appeals.
For reversal, Ms. Dovers argues that the verdict was not supported by substantial evidence, and that the trial court erred in failing to grant her motion for new trial. She further argues that the trial court made evidentiary errors in not allowing her to introduce evidence of insurance, in admitting evidence that Mr. Guffey did not receive a ticket, and in allowing the appellees to elicit hearsay testimony from the investigating officer. Finally, Ms. Dover argues that the trial court erred in allowing the appellees to elicit testimony regarding secondary gain. We agree that the trial court erred in denying Ms. Dovers’s motion for new trial, and therefore, we reverse and remand.
Trooper Tim Goshon testified that he investigated the accident, which occurred on the inside lane of Highway 67 northbound near Jacksonville. He stated that a vehicle in front of Ms. Dovers’s car came to a stop on the highway, causing Ms. Dovers to stop. Then, the truck being driven by Mr. Guffey collided with Ms. Dovers’s car. According to Trooper Goshon, her car was “totaled” as a result of the collision. He indicated that Mr. Guffey should have stayed a least 120 feet behind Ms. Dovers’s car, and gave the opinion that the accident was caused by Mr. Guffey being inattentive and following too close.
On cross-examination, Trooper Goshon testified that he did not ticket Mr. Guffey, which drew an objection from Ms. Dovers. In addition, over appellant’s hearsay objection, Trooper Goshon stated that he gained information from a Cabot police officer that the officer tried to chase down the black Jeep that stopped in front of Ms. Dovers’s car.
On re-direct examination, Trooper Goshon explained:
Mr. Guffey was not given a ticket at the scene because at the time Ms. Dovers was transported to Rebsamen Hospital, I finished up with Mr. Guffey, [and] he was allowed to continue on. I had to go over and finish my investigation after I talked to her, and it took me some time after that to talk to the gentleman that gave me the statement, and other people that were around. . . . [Tjhere was not a normal determination made on who was the at-fault driver there. I always give a courtesy to talk to everybody involved before there is a decision made. Now that my investigation is complete, if I was back out there, I would give Mr. Guffey a ticket.
Terry Joe Stephenson, who is the son of Stephenson Oil Company’s owner, testified next. He stated that Stephenson Oil Company is certified to carry gasoline, and that there are certain rules to abide by in employing drivers. Mr. Stephenson indicated that there are certain safety procedures that are supposed to be taken prior to hiring drivers, but that this was not done prior to hiring Mr. Guffey.
On cross-examination, Mr. Stephenson testified that Stephenson Oil Company is a small, family-owned operation. Ms. Dovers objected at that time and asserted that the appellees had opened the door to being questioned about insurance. However, the trial court ruled that the door had not been opened.
Bill Mullenax, a retired police officer who teaches driving-safety courses, testified that it would not be possible to stop a fully loaded tractor trailer going sixty miles per hour in fifty feet. Dr. Larry Williams, an expert in accident reconstruction, thought that the accident at issue occurred either because the eighteen-wheeler was following too closely, the driver was not paying attention, or both.
The deposition of Mr. Guffey was admitted during the plaintiffs case. He testified that at sixty miles per hour he should stay fifty feet behind another vehicle in order to safely bring his vehicle to a stop. In recounting the accident, he stated that he was driving behind Ms. Dovers’s car when a black Jeep failed to yield, entered the highway, and pulled in front of her. Mr. Guffey thought the Jeep was going to hit her, so he backed off. The Jeep braked twice, and then proceeded down the highway. Some distance after topping a hill, Mr. Guffey saw that the Jeep was stopped, with Ms. Dovers stopped behind it. Due to traffic, he could not change lanes. He attempted to stop, but testified, “I was too close to stop,” and he rear-ended Ms. Dovers’s car. He maintained that there was nothing he could do to prevent the accident.
Several witnesses gave testimony regarding Ms. Dovers’s damages. Her sister testified that after the accident, Ms. Dovers had fusion surgery and has since experienced neck, shoulder, and back pain. Ms. Dovers’s brother-in-law stated that she can no longer take care of herself and is depressed and anxious. Robert Norton, a pharmacist at the pharmacy where Ms. Dovers had worked for twelve years, stated that since the accident, she has never successfully returned to work. Ms. Dovers testified on her own behalf and stated that she has extreme pain when she turns her neck. Dr. Edwin Barron assigned her a 3% permanent partial disability rating, and Ralph Scótt Boax, a forensic economist, calculated Ms. Dovers’s total damages to be $1,330,334.00.
Bob White, a vocational rehabilitation specialist, testified that the prognosis for Ms. Dovers’s future in the work force is poor. He stated that unless she makes significant medical improvement, it is highly doubtful that she will ever be able to return to work. On cross-examination, and over Ms. Dovers’s objection, the appellees were permitted to ask Mr. White about secondary gain. In his testimony, he acknowledged that secondary gain can contribute to a person’s disability, and that there are people who may have reasons for wanting to be disabled or appear to be more disabled than they are. However, Mr. White also indicated that monetary motivations such as a lawsuit, or not wanting to return to work, do not seem to apply to Ms. Dovers.
After Ms. Dovers rested her case, Mr. Guffey testified for the defense. He stated that after the Jeep entered the highway, the Jeep and Ms. Dovers’s car got about half a mile in front of him, and that he was within twenty feet of Ms. Dovers’s vehicle when her brake lights came on. He stated, “She’s going five miles an hour on the interstate, and I’m going at least fifty.” He testified that he was paying attention and not speeding or foEowing too closely, and that there was nothing he could have done to avoid the accident. He further stated that, after the accident, Ms. Dovers told him it was not his fault but rather the fault of the driver of the black Jeep.
Ms. Dovers’s first point on appeal is that the jury’s verdict in favor of the appellees was not supported by substantial evidence. She submits that for a plaintiff to lose a personal-injury case based on negligence, the jury must find one of the following: (1) that the plaintiff was not injured or that her injuries were not caused by the accident; (2) that the defendant was zero percent negligent in causing the accident; or (3) that the plaintiff was more at fault in causing her own injuries than the defendant. Ms. Dovers contends that no reasonable juror could have made any of the above findings based on the evidence in this case.
Ms. Dovers asserts that there was no serious dispute that she was severely injured as a result of the accident. She further argues that no reasonable juror could have found Mr. Guffey free from negligence, and notes that the jury was given an instruction based on Ark. Code Ann. § 27-51-305 (Supp. 2001), which provides in pertinent part:
(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of vehicles and the traffic upon and the condition of the highway.
(b)(1) The driver of any motor truck or any motor vehicle drawing another vehicle when traveling upon a roadway outside of a business or residence district shall not follow within two hundred feet (200’) of another motor vehicle.
Ms. Dovers argues that, by Mr. Guffey’s own admission, he violated both of the above concepts while at the same time claiming to have done all he could to avoid the accident. She further argues that comparative fault was not an issue at trial and there was no evidence of any negligence on her part. Because there was no evidence to support the jury’s verdict in favor of the appellees, Ms. Dovers contends that the verdict must be reversed.
Ms. Dovers’s second argument is that the trial court erred in denying her motion for new trial because the jury’s verdict was not supported by substantial evidence. Ms. Dovers’s motion for new trial was based, in part, on the ground that the verdict was clearly contrary to the preponderance of the evidence pursuant to Rule 59(a)(6) of the Arkansas Rules of Civil Procedure. As the trial court’s denial of Ms. Dovers’s new-trial motion is the basis for both her first and second arguments on appeal, we will address these as one argument.
The trial court is not to substitute its view of the evidence for that of the jury’s unless the jury verdict is found to be clearly against the preponderance of the evidence. Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989). On appeal, our test for reviewing the denial of a motion for new trial is whether there is any substantial evidence to support the jury verdict. Hodges v. Jet Asphalt Co., Inc., 305 Ark. 466, 808 S.W.2d 755 (1991). In determining the existence of substantial evidence, we must view the evidence in the light most favorable to the appellee. Ray v. Green, 310 Ark. 571, 839 S.W.2d 515 (1992). Substantial evidence compels a conclusion one way or the other and is more than mere speculation or conjecture. Id. A jury verdict should not be disturbed unless fair-minded people can only draw a contrary conclusion. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).
We hold that fair-minded people could not have found that Mr. Guffey was free from negligence, and that the jury’s verdict is not supported by substantial evidence. Therefore, we hold that the trial court erred in failing to grant a new trial, and we reverse and remand.
We agree with Ms. Dovers that there can be no doubt that she suffered damages as a result of the accident. Comparative fault was not an issue in this case, and the jury’s duty was to determine whether Mr. Guffey was negligent and the extent to which his negligence caused the accident. From the evidence presented, including Mr. Guffey’s own testimony, no reasonable juror could have found that Mr. Guffey was zero-percent negligent in causing the accident.
By Mr. Guffey’s own admission, he was aware that the black Jeep was driving erratically and twice braked causing both him and Ms. Dovers to slow down. He further testified that at one point, there was a half-mile separating his truck and Ms. Dovers’s car. He stated that his tractor-trader was within twenty feet of Ms. Dovers’s vehicle when he first observed brake lights. There was no evidence of any negligence on the part of Ms. Dovers, as she was able to come to a stop behind the black Jeep without colliding with it. While there was evidence that the driver of the black Jeep was negligent, fair-minded people could only have concluded that Mr. Guffey was either following too closely or being inattentive, and that his negligence contributed in some measure to his collision with Ms. Dovers’s car.
The appellees contend that this case is analogous to Ray v. Green, supra, and Anderson v. Graham, 332 Ark. 503, 966 S.W.2d 223 (1998). We disagree. In Ray v. Green, supra, the jury returned a defense verdict and the supreme court affirmed the trial court’s denial of appellant’s motion for new trial. In that case, the evidence showed that the appellant was in a car stopped on the highway, with its left-turn signal blinking, and the appellee was following a pickup truck that passed the stopped vehicle using the right shoulder of the highway, and when this occurred appellant struck appellee’s car. In Anderson v. Graham, supra, the jury returned a defense verdict, and the supreme court affirmed. In that case, the appellants were stopped on a two-lane road because the vehicle in front of them had come to a halt trying to make a left turn. The appellee was driving a tractor-trailer rig, and had just crested a hill when he noticed the stopped car and was thereafter unable to stop in time to avoid a collision.
The cases cited by the appellees did not involve following too closely or not paying attention. Rather those cases involved situations where the appellee-drivers were using ordinary care but were confronted with dangerous situations resulting in unavoidable accidents. The present case differs in that Mr. Guffey had a clear view of the situation with which he was confronted, yet failed to take the precautions necessary to avoid an accident.
Because the trial court erred in denying Ms. Dovers’s motion for new trial, the case is reversed and remanded for new trial. However, we will address the remaining evidentiary matters as they may arise again at a new trial. See Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d 647 (1997).
Ms. Dovers’s first evidentiary argument is that the trial court erred in not allowing her to introduce evidence of appellees’ insurance. As a general rule, it is improper for either party to introduce or elicit evidence of the other party’s insurance coverage. York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980). This principle is part of the collateral-source rule, which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant. Patton v. Williams, 284 Ark. 187, 680 S.W.2d 707 (1984). However, when a party testifies about his or her financial condition in a false or misleading manner, he or she opens the door for the introduction of evidence that might otherwise be inadmissible under the collateral-source rule. Younts v. Baldor Elec. Co., 310 Ark. 86, 832 S.W.2d 832 (1992).
Ms. Dovers argues that the appellees opened the door to evidence of insurance coverage when it elicited testimony from Terry Joe Stephenson that Stephenson Oil Company is a small, family-owned operation. She contends that she was prejudiced by this testimony because it gave the false or misleading impression the Stephenson Oil Company would be forced to absorb any loss alone, when in fact there was insurance coverage to set off the cost of any verdict.
A trial court’s ruling on the admission of evidence should not be reversed absent an abuse of discretion. O’Fallon v. O’Fallon, 341 Ark. 138, 14 S.W.3d 506 (2000). We hold that the trial court did not abuse its discretion in refusing to allow Ms. Dovers to inquire about the appellees’ insurance. Mr. Stephenson testified that Stephenson Oil Company is a trucking company certified by the Department of Transportation to carry hazardous materials, specifically gasoline, and indicated that he has worked for the business since 1991. The fact that the business is small and family owned says nothing about whether it is financially successful or whether it carries insurance.’ We find no error in the trial court’s determination that this evidence was not misleading and did not open the door to evidence of insurance.
Ms. Dovers’s next argument is that the trial court erred in allowing the appellees to introduce evidence that Mr. Guffey did not receive a ticket. She cites Breitenberg v. Parker, 237 Ark. 261, 372 S.W.2d 828 (1963), for the proposition that it is improper in a personal injury action to ask a question about whether the defendant received a ticket for a traffic violation. In this case, Trooper Goshon was asked whether he issued a ticket to Mr. Guffey, and he responded that he did not. Ms. Dovers objected, and now argues that the testimony was inadmissible and prejudicial, and that the trial court offered no admonition to cure the prejudice.
Although it is improper in a negligence action to inquire whether the defendant was cited for a traffic violation, Ms. Dovers’s argument fails here for three reasons. While Ms. Dovers objected to the testimony that no ticket was issued, she did not obtain a ruling, and failure to obtain a ruling from the trial court is a procedural bar to the consideration of the issue on appeal. See Madden v. Aldrich, 346 Ark. 405, 58 S.W.3d 342 (2001). Furthermore, Ms. Dovers did not request an admonition to the jury, which could have cured any prejudice. See generally James v. Bill C. Harris Constr. Co., Inc., 297 Ark. 435, 763 S.W.2d 640 (1989). Finally, no prejudice resulted because on redirect examination Trooper Goshon testified that, based on the information he gath ered from his investigation, he would have given Mr. Guffey a ticket if he had it to do over again.
The next evidentiary issue on appeal is Ms. Dovers’s argument that the trial court erred in allowing hearsay testimony from Trooper Goshon. Specifically, she contends that the trial court erroneously allowed Trooper Goshon to testify that he gained information from a Cabot police officer that the officer tried to chase down the black Jeep after the accident. Ms. Dovers argues that this resulted in prejudice because it gave the impression that the authorities thought the driver of the black Jeep was responsible for the accident.
We agree that the statement was hearsay and was inadmissible under Ark. R. Evid. 802. The statement was offered to prove that the Cabot police officer followed the black Jeep, and was prejudicial because it tended to show that the driver of the Jeep, rather than Mr. Guffey, caused the accident. The appellees argue that the statement was not offered for the truth of the matter asserted, but we disagree. The information was not offered to show what information Trooper Goshon was acting upon during his investigation, or to explain his subsequent actions, because there was no evidence that Trooper Goshon pursued the driver of the black Jeep. We hold that the trial court abused its discretion in permitting the hearsay testimony.
Ms. Dovers’s remaining argument is that the trial court erred in allowing the appellees to introduce evidence of secondary gain. We agree that evidence of secondary gain was improper because our supreme court, in Rodgers v. CWR Constr., Inc., 343 Ark. 126, 33 S.W.3d 506 (2001), held that expert testimony regarding secondary gain is irrelevant and inadmissible when there is no evidence of secondary gain involved in the plaintiff s case. In the present case, there was no evidence of secondary gain and Dr. White testified that monetary concerns or lack of motivation to return to work did not seem to apply to Ms. Dovers. However, we agree with the appellees that Ms. Dovers waived this argument. Although the trial court overruled Ms. Dovers’s objection to a question about secondary gain on cross-examination, the question was not answered and the line of questioning was not further pursued. It was on redirect examination that Ms. Dovers developed the issue, and thus she opened the door to the testimony that she now asserts was inadmissible.
Reversed and remanded for further proceedings consistent with this opinion.
Bird and Griffen, JJ., agree. | [
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Andree Layton Roaf, Judge.
Anthony Jackson appeals from the trial court’s dismissal of his motion to set aside a divorce decree obtained by appellee, Elizabeth Tatum Jackson. Service on Anthony had been obtained by warning order, without the filing of an affidavit that a diligent inquiry had been made into Anthony’s whereabouts as required by Ark. R. Civ. P. 4(f) (Supp. 2002). On appeal, Anthony argues that the trial court erred in (1) finding insufficient evidence that Elizabeth obtained service by warning order through fraud and misrepresentation; and (2) failing to set aside the decree upon proof that the warning order had been issued without the requisite affidavit. We agree that Anthony’s second point has merit, and reverse and dismiss.
Anthony and Elizabeth were married in California in 1989 and lived together only in California. During their marriage, they had two children. In 1993, Elizabeth moved to Arkansas leaving the children in Anthony’s care. Elizabeth filed for divorce in Arkansas on August 8, 1996. A warning order was obtained from the chancery clerk on September 17, 1996. However, there was no affidavit showing that a diligent inquiry had been made to determine Anthony’s whereabouts as required by Ark. R. Civ. P. 4(f). The complaint and summons were sent certified mail, restricted delivery to Anthony by Elizabeth’s attorney to an address given him by Elizabeth on September 18, 1996. The address provided was the address of Anthony’s parents. The letter was subsequently returned unclaimed after attempted delivery on September 27 and October 7, 1996.
The warning order was published in the Lonoke Democrat on September 25, 1996, and again on October 2, 1996. It is undisputed that Anthony has always been a resident of California and has never been an Arkansas resident. Anthony did not appear at the Arkansas divorce proceeding to defend the suit. Elizabeth was granted a divorce by default in March 1997, and was awarded custody of the couple’s minor children. The court also ordered Anthony to pay child support in the amount of $30 per week and allowed for supervised visitation. The parties continued to communicate and exchange custody of the children between Arkansas and California, however, Anthony alleged that Elizabeth never notified him of the decree.
Anthony filed for divorce in California on November 10, 2000. A hearing was held in California on January 16, 2001, in which Elizabeth presented the Arkansas divorce decree and custody order. The California court declined to exercise jurisdiction because of the existence of the Arkansas judgment. Anthony then filed a Motion to Set Aside the Decree in Lonoke County, asserting that the decree had been issued upon fraud, misrepresentation and/or other misconduct. The motion was denied after a hearing held on January 30, 2002. This appeal follows that decision.
On appeal, Anthony argues that the trial court erred when it (1) found insufficient evidence existed to establish that Elizabeth caused service by warning order to be issued through the use of fraud and misrepresentation, and (2) when it issued a warning order without affidavit that a diligent inquiry had been made as to Anthony’s whereabouts as required by Ark. R. Civ. P. 4(f) and the due process clauses of the both the Arkansas and United States Constitution.
In regard to his second point, Anthony argues that it was error both to issue the decree upon the record absent the affidavit of diligent inquiry, and for the trial court to fail to set aside the decree upon proof of this error. At the hearing, there was extensive colloquy between the trial court and counsel concerning the absence of the affidavit. Elizabeth’s counsel acknowledged that there was no affidavit in the record, and that the judgment might be “void,” but asserted that the only issue the trial court should address was whether Elizabeth or her attorney made a diligent inquiry. In denying the motion to set aside the decree, the trial court stated that Anthony was served by warning order that was “published according to Rule 4.” However, the trial court also stated “for the record” that “there was no proof in front of me today that the warning order was issued after an affidavit was filed,” and he refused to make a specific finding that the affidavit was filed before the warning order was issued. The order entered denying the motion to set aside decree provides in pertinent part, “the Court finds that the defendant was properly served in the action by warning order which was published pursuant to Rule 4(f) of the Arkansas Rules of Civil Procedure.”
We have found no cases where a warning order has been issued without an affidavit, or where the warning order was obtained before personal service was first unsuccessfully attempted, both of which occurred in this case. However, the supreme court has addressed the requirements for valid constructive service on a number of occasions. In this regard, we first note that Arkansas Rule of Civil Procedure 4(f) (1999) provides in pertinent part:
(f) Service Upon Defendant Whose Identity or Whereabouts Is Unknown
(1) Where it appears by the affidavit of a party or his attorney that, after diligent inquiry, the identity or whereabouts of a defendant remains unknown, service shall be by warning order issued by the clerk and published weekly for two consecutive weeks in a newspaper having general circulation in a county where the action is filed and by mailing a copy of the complaint and warning order to such defendant at his last known address, if any, by any form of mail with delivery restricted to the addressee or the agent of the addressee.
The standard for determining the adequacy of constructive service was set forth in Davis v. Schimmel, 252 Ark. 1201, 482 S.W.2d 785 (1972), in which the supreme court, in setting aside the appointment of a receiver where the affidavit for warning order was not in compliance, stated:
A method of service required for nonresidents is by publication of warning order. Ark. Stat. Ann. §§§§ 52-203, 27-354 — 357. The rule is well established that when constructive notice only is given, the requirements of the statute must be strictly complied with. Sinclair Refining Co. v. Bounds, supra [198 Ark. 149, 127 S.W.2d 629]; Swartz v. Drinker, 192 Ark. 198, 90 S.W.2d 483; Missouri Pacific R. Co. v. McLendon, 185 Ark. 204, 46 S.W.2d 626; Lawrence v. State, 30 Ark. 719. Where essential statutory provisions governing service by publication are not stricdy complied with as to nonresident defendants, all proceedings as to them are void. Beidler v. Beidler, 71 Ark. 318, 74 S.W. 13.
Where an action is based on constructive service, no action is commenced or cause pending until the proceedings provided for in the governing statute are complied with and if there is no such compliance, the proceedings are void, and the court has no power to take affirmative action. Swartz v. Drinker, supra; Missouri Pacific R. Co. v. McLendon, supra; Sinclair Refining Co. v. Bounds, supra; Frank v. Frank, supra [175 Ark. 285, 298 S.W. 1026]. It is only where the affidavit prescribed by Ark. Stat. Ann. §§ 27-354 has been made and warning order based thereon has been issued that the action can be said to have been commenced or the cause pending, and until this is done, the court has no jurisdiction. Swartz v. Drinker, supra; Missouri Pacific R. Co. v. McLendon, supra; Frank v. Frank, supra.
The affidavit for warning order must show that the plaintiff has made diligent inquiry and that it is his information and belief that the defendant is a nonresident. It must strictly comply with the statute. Holloway v. Holloway, 85 Ark. 431, 108 S.W. 837; Waggoner v. Fogleman, 53 Ark. 181, 13 S.W. 729; Turnage v. Fisk, Executor, 22 Ark. 286; Allen & Hill, Admrs. v. Smith, 25 Ark. 495.
This standard of requiring strict compliance has been followed by the supreme court in a number of Arkansas cases where constructive service was obtained. See Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992) (affirming trial court’s order setting aside a quiet-title decree where appellant did not state in the affidavit for warning order that defendant’s whereabouts were unknown); Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983) (affirming trial court’s dismissal of cross-complaint where appellant failed to conduct a diligent search before obtaining constructive service upon appellee by warning order); Pierce v. Pierce, 259 Ark. 312, 532 S.W.2d 747 (1976) (affirming trial court’s vacation of divorce decree where appellant failed to strictly comply with the requirements of constructive service).
This court has likewise followed the rationale and decisions of the supreme court when we have addressed the adequacy of constructive service. In Black v. Merritt, 37 Ark. App. 5, 822 S.W.2d 853 (1992), this court reversed the trial court’s denial of motions to set aside default judgments where the defect complained of was that appellee’s attorney, rather than the clerk, issued the warning order, and stated:
It is a well-settled rule that constructive service is a departure from the common law, and statutes providing for such service are mandatory and must be complied with exactly. This rule applies equally to the service requirements imposed by rules of the court. Proceedings conducted where the attempted service was invalid render judgments arising under them void. Wilburn v. Keenan Companies, Inc., 298 Ark. 461, 768 S.W.2d 531 (1989); Edmonson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978); Davis v. Schimmell, 252 Ark. 1201, 482 S.W.2d 785 (1972).
In the case before us, Elizabeth’s attempt to obtain service by publication did not comply with the provisions of Rule 4 because no affidavit whatsoever was filed. The supreme court has held that compliance is an essential prerequisite to the publication of warning orders. Absent such compliance, no jurisdiction can be acquired over a defendant and all proceedings as to him are void. Beidler v. Beidler, 71 Ark. 318, 74 S.W. 13 (1903).
Because we conclude that this case must be reversed and dismissed on this point, we do not address Anthony’s argument that service was obtained through fraud and misrepresentation.
Reversed and dismissed.
Crabtree and Baker, JJ., agree. | [
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Andree Layton Roaf, Judge.
Ken and Barbara Cren-shaw appeal the trial court’s grant of summary judgment in favor of Doubletree Corp., et al. (Doubletree), and dismissal of their case with prejudice. Ken Crenshaw, while a guest at the Doubletree Hotel, was injured when he fell while alighting from a Doubletree van. The trial court found that Doubletree was a private rather than a common carrier and, thus, owed Crenshaw only the duty to exercise ordinary care, and that the duty was not breached because there was no reasonable foreseeability that Crenshaw would fall under the circumstances presented. On appeal, Crenshaw argues that the trial court erred in granting the summary judgment because Doubletree breached its duty in (1) failing to provide him a safe place to alight, and (2) failing to offer assistance to him in alighting from the van. We affirm.
Ken Crenshaw and Barbara Crenshaw sued Doubletree for injuries sustained by Ken Crenshaw in March 1996 when he fell while exiting a van owned and operated by Doubletree and used for transporting guests in connection with their stay at the hotel. On the night of the accident, the Crenshaws and several other hotel guests were driven to Doe’s Eat Place around dusk in the Doubletree van. The driver of the van, Larry Batch, was employed by Doubletree Hotel as a bell captain and had driven hotel patrons to Doe’s at least fifty times without incident prior to Crenshaw’s accident. The Crenshaws stated in their depositions that Batch stopped in the street in front of Doe’s because vehicles were parked along the curb in front of the restaurant. Batch testified that there were no vehicles in front of the restaurant and that he stopped the van at the curb. Crenshaw testified in his deposition that the other passengers, including his wife, alighted from the van without incident and, when asked what caused him to fall, stated:
Don’t know, other than it was a high step down; and when we come out the door, I was trying to hold myself to go down; it was apparently just further down than I thought it was.
. . . you’ve got the frame of the door around it as you grab it, but there was no equipment there like a rail or something — a grab bar, or anything like that, to hold on to.
Doubletree filed a motion for summary judgment alleging that it only owed a duty of ordinary care and did not breach its duty under the circumstances in which Crenshaw was injured. The trial judge granted the motion and dismissed the Crenshaws’ complaint with prejudice. The court found that Doubletree was a private carrier and did not breach the duty to use ordinary care by parking the van away from the curb, thereby requiring passengers to alight from the van in the street. The court further held that the driver did not breach the duty to use ordinary care in failing to assist Ken Crenshaw when he alighted from the van, even though the driver had rendered such assistance to the Crenshaws the previous evening. The Crenshaws appeal.
It is well settled that summary judgment is regarded simply as one of the tools in a trial court’s efficiency arsenal; however, the granting of the motion is only approved when the state of the evidence as portrayed by the pleadings, affidavits, discovery responses, and admission on file is such that the nonmoving party is not entitled to a day in court, that is, when there is not any genuine remaining issue of fact and the moving party is entitled to judgment as a matter of law. Flentje v. First Nat’l Bank of Wynne, 340 Ark. 563, 570, 11 S.W.3d 531, 536 (2000). Summary judgment is not proper “where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis [sic] might reasonably be drawn and reasonable minds might differ.” Thomas v. Sessions, 307 Ark. 203, 208, 818 S.W.2d 940, 943 (1991). The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. (citing Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983)).
The Crenshaws argue on appeal that the trial court erred in granting the summary-judgment motion. They do not take issue with the trial court’s finding that Doubletree operated its passenger vans as a private carrier rather than a common carrier. Arkansas Code Annotated section 23-13-203(a)(5) and (18) (Repl. 2000) define common and private carriers, as follows:
(5) “Common carrier by motor vehicle” means any person who or which undertakes, whether direcdy or indirecdy, or by lease of equipment or franchise rights, or any other arrangement, to transport passengers or property or any classes of property for the general public by motor vehicle for compensation whether over regular or irregular routes,
(18) “Private carrier” means any person engaged in the transportation by motor vehicle upon public highways of persons or property, or both, but not as a common carrier by motor vehicle or a contract carrier by motor vehicle and includes any person who transports property by motor vehicle, where the transportation is incidental to or in furtherance of any commercial enterprise of the person, which enterprise is one other than transportation;
The supreme court has held that “the law imposes the highest degree of skill and care on common carriers,” including the duty “to furnish their passengers a safe place to get on and off.” Halperin v. Hot Springs Street Ry. Co., 227 Ark. 910, 302 S.W.2d 535 (1957); Checker Cab & Baggage Co. v. Harrison, 191 Ark. 564, 87 S.W.2d 32 (1935); Arkansas Power & Light Co. v. Hughes, 189 Ark. 1015, 76 S.W.2d 53 (1934). However, the Crenshaws do not dispute that the duty of a private carrier is that of ordinary care and diligence rather than the heightened care owed by common carriers. See Alpha Zeta Chapter of Pi Kappa Alpha Fraternity by Damron v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987); Forbes v. Reinman & Wolfort, 112 Ark. 417, 166 S.W. 563 (1914). The Crenshaws instead argue that there are material facts remaining on the question of whether Doubletree breached this duty by parking its van in such a manner that Crenshaw was required to step out onto an uneven street, in poor lighting, and further down than he had anticipated, and in failing to offer assistance as Crenshaw alighted from the van.
The Crenshaws contend that the risk to Crenshaw was foreseeable in that Doubletree’s driver had parked at the curb and provided assistance when he drove the Crenshaws to another restaurant on the previous evening. They, therefore, contend that the element of foreseeability is present in this case, and whether Crenshaw was provided a safe place and manner in which to alight from the van was a jury question inappropriate for summary judgment. The Crenshaws cite two cases for this general proposition, Yellow Cab Co. v. Dossett, 244 Ark. 554, 426 S.W.2d 792 (1968) and Capitol Transit Co. v. Burris, 224 Ark. 755, 276 S.W.2d 56 (1955); however, both of these cases involved common carriers. In Capitol Transit Co. v. Burris, supra, the supreme court affirmed a judgment for a child who was injured when she was struck by a car while attempting to cross the street after alighting from a public bus. The bus had stopped at an unusual place rather than the regular bus stop, and a driver attempting to pass the bus because he did not expect it to stop there, struck and injured the girl. Id. The court held that whether the bus driver stopped at a safe place for a seven-year-old child was a question of fact for the jury. Id. In Yellow Cab v. Dossett, supra, a woman passenger was likewise struck by an oncoming car after being discharged by the driver in the middle of the street. The supreme court, in affirming a judgment against the cab company, held that whether a particular point is a safe place for a passenger to alight must be viewed in the fight of the particular circumstances and is generally a jury question. Id. Neither of these cases have been cited for the proposition relied on by the Crenshaws since Yellow Cab was decided in 1968 and, more significantly, both involved common carriers.
The cases relied upon by Doubletree in support of its argument that it did not breach the duty of ordinary care in this instance are likewise not helpful because they do not involve carriers, common or private. See Jenkins v. Hestand’s Grocery, Inc., 320 Ark. 485, 898 S.W.2d 30 (1995) (affirming summary judgment for grocery store where customer fell on a wheelchair ramp and there was no evidence to show the ramp presented a dangerous or unreasonable risk to invitees); Gann v. Parker, 315 Ark. 107, 865 S.W.2d 282 (1993) (affirming summary judgment for homeowners in suit by a serviceman shocked by wiring while removing a stove where there had been no prior notice to the homeowners of defective or inadequate wiring); Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991) (affirming directed verdict for homeowners in suit by housekeeper bitten by a brown recluse spider where there was no prior knowledge by the owners of the existence of the danger or showing of acts or omissions amounting to negligence). While these authorities do involve the duty of ordinary care and the absence of prior similar incidents as in the Crenshaws’ case, they are so distinguishable factually as to provide little guidance in this case.
On the question of whether Doubletree breached the duty of ordinary care in stopping its van in the street, Crenshaw contends that he was forced to alight from the van under conditions that were not safe because of the high step-down, uneven conditions of the roadway, dim lighting, and because the van was not equipped with hand rails, grab bar, or lighted steps. However, Crenshaw testified that the driver stopped at “the only place he could” because cars were parked along the curb. The passengers were not discharged into oncoming traffic as in Yellow Cab v. Dossett, supra. The trial court found that it was not foreseeable that Crenshaw would fall, stating in its order that “[I]t is not negligence to fail to anticipate that someone will step and fall upon an apparently safe road.” A “place of safety” in this context has been held to generally mean an area of firm ground which is itself reasonably safe. Cooperider v. Peterseim, 103 Ohio App. 3d 476, 659 N.E.2d 882 (1995). We agree that, under the circumstances presented in this case, there is not a genuine issue of material fact as to whether Doubletree breached its duty of ordinary care in stopping away from the curb in the street.
The trial court also found that Doubletree did not breach its duty by failing to offer assistance to Crenshaw, and we agree. We can find no authority involving the failure to offer assistance to passengers by a private carrier. However, case law and other authority involving common carriers are instructive on this issue.
In the absence of circumstances showing that a passenger about to board, or alight from, the vehicle of a carrier requires assistance, there is as a general rule of no duty personally to assist him, particularly in the absence of any request for assistance . . .
A custom of assisting passengers is not binding on the carrier unless it has knowledge thereof, or unless the custom is so well known that it may reasonably be presumed to be a part of the contract of carriage.
13 C.J.S. Carriers § 547 (1990). Even under a heightened duty of care, our supreme court has found negligence in this regard by a common carrier only under special circumstances. See, e.g., Missouri Pac. Transp. Co. v. Guthrie, 227 Ark. 566, 299 S.W.2d 829 (1957) (affirming judgment for bus passenger who told driver she was practically blind and would need help in getting off where driver failed to help her); Yazoo & Miss. Valley R.R. Co. v. Littleton, 177 Ark. 199, 5 S.W.2d 930 (1928) (affirming judgment where railroad company failed to assist boy weakened by illness in alighting from train after agreeing to take care of him in transit and in getting off); Pittman v. Hines, 144 Ark. 133, 221 S.W. 474 (1920) (reversing judgment for railroad company where it failed to render assistance to prevent appellant whom its employees had been notified was “crazy and wild,” from jumping from a moving train).
In this instance, Crenshaw was neither disabled nor suffering from any special condition and did not request assistance from Doubletree’s driver or indicate that he was in need of assistance. We further note that passengers of private carriers have the duty to exercise ordinary care for their own safety, including a reasonable use of their faculties of sight, hearing, and intelligence to observe and appreciate danger or threatened danger of injury. See, e.g., Rone v. Miller, 257 Ark. 791, 520 S.W.2d 268 (1975); Elmore v. Dillard, 227 Ark. 260, 298 S.W.2d 338 (1957). Finally, while one authority has said that the general duty of private carriers to exercise ordinary care in transporting passengers includes the duty to “warn passengers of nonapparent dangers,” Pemberton v. Lewis, 235 N.C. 188, 69 S.E.2d 512 (1952), there is no evidence or allegation that the height of the van floor was not apparent to Crenshaw. Crenshaw has failed to present evidence or authority to support his argument that Doubletree owed a specific duty to assist him in alighting, or that it breached its general duty to exercise ordinary care under the circumstances involved in his fall. Crenshaw has in essence asserted that he simply misjudged how far down to step in exiting the van, not that this distance was not readily apparent to him or that he had any special need for assistance that was made known to Doubletree. We conclude that the trial court properly found that there was no duty to assist in this case and, consequently, there was no breach of the duty of ordinary care.
Affirmed.
Gladwin and Neal, JJ., agree. | [
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Olly Neal, Judge.
Appellant Haywood Miller appeals from a jury verdict that sentenced him as a habitual offender to thirty-five years’ imprisonment for the offenses of aggravated robbery and theft of property. Appellant’s sole point for reversal is that the trial court abused its discretion in declining to grant his request to peremptorily strike juror Judious Lewis based upon the fact that it was discovered mid-trial that Lewis knew the victim’s family. Finding no abuse of discretion, we affirm.
Because appellant does not challenge the sufficiency of the evidence on appeal, a detailed recitation of the facts is unnecessary. At appellant’s trial, victim Tyrone Davis testified that appellant stole his 2000 Honda Accord EX V-6. During the course of Davis’s testimony, he revealed that his family owned Davis Petroleum. Sometime thereafter, the court called for a conference at the bench and told the parties that a juror, Mr. Judious Lewis, had given the trial court a note stating that he knew the victim’s father because they were members of the same golf club. The court waited until both parties rested before calling Lewis before it. Lewis indicated that he was not aware that the owner of Davis Petroleum had a son, that he and the victim’s father were both members of the Pro Duffers golf club, and that Davis Petroleum had underwritten several parties at which he and his wife had socialized with the father. Then the following colloquy took place:
Court: Would [the fact that you know the victim’s father] have an impact upon your ability to sit as a juror today?
Juror Lewis: No, sir.
Court: Do you think that you could fairly try this case and listen to the facts and the evidence and decide this based upon the facts in evidence and not upon your association with the [victim’s] father?
Juror Lewis: Sure.
Court: If you saw him later, the victim’s father, do you think you would owe him an explanation as to why you decided this one way or another?
Juror Lewis: No, sir.
Court: Do you know of any reason why you could not be fair and impartial?
Juror Lewis: There is no reason, Your Honor.
Lewis was thereafter excused for lunch. Defense counsel objected to Lewis sitting on the jury, stating that she believed that Lewis could not be impartial. The court then stated that:
[t]he problem is, though, he says he can be impartial and fair. That’s the standard. The question is whether or not the relationship is such that it would raise a question in the mind, but he said that he didn’t know the victim. . . . The easy way out would be to seat the alternate and let him go. But is that the right thing to do, is a different question. I need to look at the law to see whether or not he is — from what he said, he has satisfied the Court that he could be fair and impartial.
After the lunch break, the court, outside the presence of the jury, asked Lewis the following:
Court: Do you believe that you are able to consider the facts in this case impartially?
Juror Lewis: Yes, sir.
Court: Do you believe that you could render your verdict according to the evidence?
Juror Lewis: Yes, sir.
Court: Do you believe that you would also be able to abide by the instructions on the law given by the Court?
Juror Lewis: Yes, sir.
The court announced that after reviewing the relevant case law during the lunch break, it would allow Lewis to remain a juror, stating as follows:
The relevant statute is 16-33-304 where challenge is made for cause. You can look at the bias that could be actually implied. There is no actual bias here. You can look at the bias that could be actually implied. The things listed under implied bias don’t apply either. You can still look to other factors, like relationship and things of that nature. There are cases that deal with relationships, where jurors were allowed to sit on juries where they had knowledge of or knew different parties. In this case the juror has indicated several essential things. First of all, he’s able to set aside his knowledge of the parties, decide the case on the facts, [and] abide by the law as given by the Court. For those reasons, I don’t find that it’s necessary to exclude him from service. I will note your objection for the record, Ms. Reynolds.
Following presentation of the evidence and jury instructions, the jury elected Mr. Lewis foreperson and unanimously found appellant guilty and sentenced him accordingly to thirty-five years’ imprisonment. It is from this conviction that appeal is taken. On appeal, appellant argues that the trial court erred in declining to remove Lewis when he revealed that he had a relationship with Davis’s family.
Jurors are presumed to be unbiased and the burden is on the appellant to show otherwise. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). Whether or not a peremptory challenge may be exercised after a juror has been selected by both sides is a matter that directs itself to the sound discretion of the trial court. Rorex v. State, 31 Ark. App. 127, 790 S.W.2d 180 (1990); Daugherty v. State, 3 Ark. App. 112, 623 S.W.2d 209 (1981). The appellate court reverses if there is a showing not only of abuse of that discretion but of prejudice likely to result. See id. The standard of review is the same regardless of whether the court permits the challenge or declines to permit it. See Daugherty v. State, supra.
Arkansas Code Annotated section 16-33-304 (Repl. 1999) provides that a challenge to an individual juror for cause may be made by either the State or the defendant and that there may be a general or particular cause that disqualifies a juror from serving in the case on trial. General challenge causes include a want of the qualifications prescribed by law; a conviction for a felony; or unsoundness of mind, or such defect in the faculties of the mind, or organs of the body, as renders him incapable of properly performing the duties of a juror. Ark. Code Ann. § 16-33-304(b)(1)(A)(B)(C) (Repl. 1999). Particular causes of challenge are actual and implied bias. Actual bias is the existence of such a state of mind on the part of the juror, in regard to the case or to either party, as satisfies the court, in the exercise of a sound discretion, that he cannot try the case impartially and without prejudice to the substantial rights of the party challenging. Ark. Code Ann. § 16-33-304(b)(2)(A) (Repl. 1999). A challenge for implied bias may be taken in the case of the juror:
(i) Being related by consanguinity, or affinity, or stands in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, employer and employed on wages, or is a member of the family of the defendant or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted;
(ii) Being adverse to the defendant in a civil suit, or having complained against or being accused by him in a criminal prosecution;
(iii) Having served on the grand jury that found the indictment or, on the coroner’s jury that inquired into the death of the party, whose death is the subject of the indictment;
(iv) Having served on a trial jury which has tried another person for the offense charged in the indictment;
(v) Having been one of the former jury sworn to try the same indictment and whose verdict was set aside, or who were discharged without a verdict;
(vi) Having served as a juror in a civil action brought against the defendant for the act charged in the indictment;
(vii) When the offense is punishable with death, the entertaining of such conscientious opinions as would preclude him from finding the defendant guilty.
Ark. Code Ann. § 16-33-304(2)(B)(i)-(vii) (Repl. 1999).
Here, once it was revealed that juror Lewis knew of Davis’s family, the trial court appropriately inquired as to his ability to continue serving as a juror. The court questioned Lewis and also allowed defense counsel and the prosecuting attorney to ask Lewis questions. Lewis indicated that he could set aside his knowledge of the parties, decide the case on the facts, and abide by the law as given by the court. The court found the foregoing factors sufficient to allow Lewis to remain empaneled, determining that there was no for-cause basis under Ark. Code Ann. § 16-33-304 (Repl. 1999). See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997) (the trial court did not abuse its discretion in denying appellant’s mistrial on the basis of juror bias where the judge questioned a juror who had hugged appellant’s mother, and the juror responded that the relationship would not affect his objectivity); Rorex v. State, supra (where during voir dire, none of the jurors were asked if they knew or worked with any of the witnesses and no questions at all were addressed individually to the juror in question, where counsel never directly asked the court for permission to call the defendant’s witness to testify that she worked with one of the jurors, and where the judge never told counsel he would not permit it, the trial court did not abuse his discretion in refusing to allow a peremptory challenge to be exercised after the juror had been accepted by both sides); Threlkeld v. Worsham, 30 Ark. App. 251, 785 S.W.2d 249 (1990) (the fact that a juror has done business with one of the litigating parties does not ipso facto disqualify him as a prospective juror). Notably, appellant does not allege a for-cause challenge to Lewis’s empanelment on appeal.
There is nothing in this record indicating that the trial court abused its discretion in allowing Lewis to remain on the jury panel, and in matters involving impartiality of jurors, we have consistently deferred to the trial court’s opportunity to observe jurors and gauge their answers in determining whether their impartiality was affected. See Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996). Furthermore, there was no showing of prejudice ever made or offered by appellant, as it is not enough that appellant merely shows that the trial court abused its discretion; there must also be prejudice. See Daugherty v. State, supra.
Affirmed.
Gladwin and Baker, JJ., agree. | [
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John Mauzy Pittman, Judge.
The appellant in this criminal case was convicted of aggravated robbery and theft, and was sentenced to terms of fifteen years and five years of imprisonment, to be served concurrently. From that decision, comes this appeal.
For reversal, appellant contends that the trial court erred in allowing into evidence an out-of-court statement given by Antonio Jordan to law enforcement officers. In the alternative, appellant contends that the trial court erred in allowing into evidence those parts of Antonio Jordan’s statement that repeated out-of-court statements made by a third party, Jesse James Smith. We think that appellant’s second argument has merit, and we reverse and remand on that point.
There was evidence at trial to show that a masked person generally fitting appellant’s description robbed a bank, threatening bystanders with a sawed-off shotgun. The only evidence identifying appellant as the robber was a statement made to police by Antonio Jordan. Jordan made an out-of-court statement to police that he was at a party with appellant and Jesse James Smith shortly after the robbery. Jordan stated that appellant told him that he had just robbed a bank. Jordan also stated that Smith told him that appellant participated in the robbery and wore a mask, and was worried because a water company employee saw him come out of the bank wearing the mask. Jordan further stated that Smith told him that Smith drove the getaway car after the robbery and later disposed of the shotgun.
Jordan did not testify at trial, apparently because he refused to do so. The State sought to introduce Jordan’s out-of-court statement in his absence. The appellant objected and filed a motion in limine. Jordan appeared at a pretrial hearing on the motion and testified that he remembered making a statement to police officers, but that he did not remember what he said to them. He further stated that he was threatened into giving a statement and that he did not know if what he told the police was the truth or not. Finally, Jordan claimed to be schizophrenic.
The trial court ruled that Jordan was mentally competent to testify. The State then proposed to introduce Jordan’s out-of-court statement at trial, asserting that it was admissible under the exception to the hearsay rule set out in Rule 803(5). The court ruled that Jordan’s statement was admissible under 803(5) because, in the statement, Jordan told the police that everything he said in his statement was true. The statement was admitted, appellant was convicted, and this appeal followed.
On appeal, appellant contends that the trial court erred in admitting Jordan’s out-of-court statement, asserting that Rule 803(5) is inapplicable because Jordan did not testify at trial that the statement was truthful and that the recordation was accurate. We do not agree.
Arkansas Rule of Evidence 803(5) provides that hearsay is admissible, regardless of the declarant’s availability, if it is in the form of a:
Recorded Recollection. A memorandum or record concerning a matter- about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
Two elements must be established to provide a foundation for such a recorded recollection to be read into evidence at trial: first, there must be evidence that the recordation was adopted by the declarant; second, there must be evidence that the recordation was accurately recorded.
Here, Jordan affirms in the statement itself that it is true, therefore satisfying the requirement that the recordation must be adopted by the declarant. With regard to the second requirement, there was no evidence that Jordan himself ever affirmed that his statement was accurately recorded. There was, however, testimony by a police officer who was present at the time the statement was made stating that Jordan’s statement was accurately recorded.
The central question in this case, therefore, is whether a record prepared by a party other than the declarant is admissible under 803(5) in the absence of testimony by both the declarant and the recorder that the information is true and that the recordation was accurate? The State argues that both parties to the record must testify as to both aspects of the foundation, i.e., truth and accuracy. We do not agree. To the contrary, it has been said that:
Both participants must ordinarily testify, the reporter vouching for the accuracy of the oral report and the recorder for the accuracy of the transcription.
Weinstein’s Evidence ¶ 803.10(5) (2d ed. 2002) (emphasis supplied). That is precisely what occurred in the present case: appellant affirmed in his statement itself that he was telling the truth, and the police officer who was present testified as to the accuracy of the transcription.
We acknowledge the argument that the police officer’s testimony concerning the accuracy of recordation should be disregarded because Jordan failed to unequivocally adopt the statement as truthful when he testified at the pretrial hearing. However, Jordan’s testimony at the hearing was inconsistent and self-contradicting. Although he at times stated that he was under duress and that he could not remember what he said to the police, he also acknowledged that he did give a statement, and he did not disagree that it reflected what he said at the time. We think that the contradictions in Jordan’s testimony regarding the statement were properly resolved by the trial court, and that he did not err in holding that the statement was admissible as a recorded recollection.
Jordan’s out-of-court statement is itself hearsay, and we have held that it was properly allowed into evidence under Rule 803(5) as a recorded recollection. Appellant’s second point on appeal raises an entirely different question, i.e., whether there is a basis for admitting into evidence the contents of that written statement which are themselves hearsay.
The statements made by appellant to Jordan were properly admitted as admissions against penal interest hy the appellant, a party-opponent in this case. See Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987). However, we find no such independent grounds for admitting the portions of Jordan’s out-of-court statement recounting the statements made by Smith, who was not involved in this case. The trial judge based the admission of Smith’s statements on Ark. R. Evid. 801(d) (2) (v), which exempts from the definition of hearsay a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. However, it is clear that Smith’s statement to Jordan, made at a party after the robbery had been committed, was simply after-the-fact boasting that was neither in the course of nor in furtherance of the robbery. Furthermore, Smith’s statements as repeated by Jordan implicated both Smith and the appellant, and therefore do not fall within the statement-against-interest exception to the hearsay rule set out in Ark. R. Evid. 804(b)(3). Consequently, we hold that the trial court erred in admitting those portions of Jordan’s out-of-court statement recounting the statements made to Jordan by Smith.
Finally, we do not agree with the State’s argument that the admission of these statements was harmless. Smith’s statement directly implicated the appellant and, as the State itself argued to the jury, the amount of detail contained in Smith’s statements as reported by Jordan regarding the particulars of the crime, such as the use of the mask and the robbers’ apprehension concerning the presence of a witness near the getaway car, tended to make Jordan’s out-of-court statement considerably more credible.
Reversed and remanded.
Gladwin, J., agrees.
Hart, J., concurs. | [
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Olly Neal, Judge.
In an unpublished opinion dated February 13, 2002, Farmers Home Mutual Fire Insurance Co. v. Bank of Pocahontas, CA01-712, appellant, Farmers Home Mutual Fire Insurance Company (Farmers) was afforded the opportunity to supplement its abstract in conformance with Arkansas Supreme Court Rule 4-2(a)(6). As the trial court’s findings were not clearly erroneous, we now affirm.
The facts are as follows. Donna Hawkins borrowed money from appellee, Bank of Pocahontas (Bank), for the purchase of a home. The Bank approved the loan and issued a standard real estate mortgage that required an insurance policy naming itself as loss payee. Farmers issued the policy to Hawkins in 1996. The policy contained a standard mortgage clause naming the Bank as loss payee.
Upon renewal of the policy in 1998, Hawkins’s premium check was returned marked “insufficient funds.” On May 26, 1998, Farmers mailed Hawkins and the Bank a letter stating that the check would be redeposited on May 31, 1998. The check again failed to clear. On June 9, 1998, Farmers mailed Hawkins and the Bank another letter indicating that unless payment was received on or before June 18, 1998, the coverage would be terminated. Subsequently, Farmers canceled the policy when it did not receive payment. Farmers mailed a notice of the cancellation to Hawkins and the Bank on June 23, 1998.
On September 27, 1998, a fire destroyed Hawkins’s home, and Farmers refused to pay the claim, contending that the policy had effectively been canceled. The Bank filed suit, alleging that it did not get notice of the cancellation, or if the notice was adequate, it was void under the terms of the policy. Alternatively, it argued that the policy had been reinstated by a document it received from the local insurance agent who had purchased the agency where the Hawkins policy originated.
The trial court awarded the Bank $23,500, plus 12% penalty and $4,000 in attorney’s fees. The court determined that the Bank had been properly notified of the cancellation, but found that the terms of the policy required Farmers to make a “demand”on the Bank. The court reasoned that since no demand was made, the policy was still in effect at the time of the loss. The court further found that the policy was reinstated by the document Farmers sent to its new agent. It is from this judgment that appeal is taken.
On appeal, Farmers contends that (1) the trial court erred in holding that the mortgage clause of the insurance policy requires the insurance company to make demand upon the Bank to pay the insured’s premiums before cancellation of the policy can be effected for nonpayment of premiums because (a) the ordinary and plain meaning of the policy does not require that the insurance company make demand upon the mortgagee to pay the premium on behalf of the insured and (b) the language of the policy regarding the issue of demand is not ambiguous, therefore requiring that the policy language be construed against the insurer; (2) if demand on the mortgagee is required under the terms of the policy, then the three letters mailed out to the mortgagee regarding nonpayment of the premium are sufficient to constitute demand that the premium be paid by the mortgagee; and (3) the trial court erred in finding that an internal memorandum issued to its agent reinstated the policy after it was canceled because (a) absent proof that all of the conditions necessary for reinstatement of the policy had either been met, or said conditions waived by the insurer, there could be no reinstatement of the policy and (b) the mortgagee, who never received the “internal memorandum” until after the loss, could not have reasonably relied upon the document as evidence that the policy had been reinstated, or somehow afforded it coverage for the loss.
In bench trials, the standard of review on appeal is whether the trial judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). The appellate court views the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee; disputed facts and determinations of the credibility of witnesses are within the province of the fact finder. Id.
I. Whether the policy language is ambiguous and required a demand
Farmers contends that the trial court erred because the ordinary and plain meaning of the policy language did not require it to make a demand upon the Bank to pay Hawkins’s premium before the cancellation of the policy could be effected for nonpayment of the premiums. In determining that the policy required that Farmers make demand upon the Bank for payment of the premium, the trial court found that the language of the policy was “at the least” ambiguous, and thus must have been resolved in favor of the insured. In its order, the court stated that it could not “strictly apply the terms of the policy with respect to the mailing of the notice as being sufficient evidence of notice and ignore the requirement that the policy places on [Farmers] to make demand for payment of the premium from [the Bank] when [Donna Hawkins] fails to pay same.” We agree with the trial court.
Nonrenewal, lapse, or failure by the insured to pay an insurance premium results in cancellation of the policy by the carrier. Jabore v. Shelters Ins. Co., 307 Ark. 287, 819 S.W.2d 9 (1991). In reviewing an insurance policy, the appellate court submits to the principle that when the terms of the policy are clear, the language in the policy controls. Columbia Mut. v. Home Mut. Fire, 74 Ark. App. 166, 47 S.W.3d 909 (2001). The language in an insurance policy is to be construed in its plain, ordinary, popular sense. Norris v. State Farm Fire & Cas. Co., 341 Ark. 360, 16 S.W.3d 242 (2000). If a policy provision is unambiguous, and only one reasonable interpretation is possible, the court will give effect to the plain language of the policy without resorting to rules of construction; if, however, the policy language is ambiguous, and thus susceptible to more than one reasonable interpretation, the policy will be construed liberally in favor of the insured and stricdy against the insurer. Id. Whether the language of a policy is ambiguous is a question of law to be resolved by the court. Id.
There are two major categories of mortgagee clauses: (1) loss-payable and (2) standard clauses. Nationwide Mut. Ins. Co. v. Hunt & First Citizens Bank, 321 S.C. 89, 488 S.E.2d 339 (1997). In Nationwide, the South Carolina Supreme Court provided that:
A loss payable, or open mortgage, clause typically declares that the loss, if any, is payable to a mortgagee as its interest might appear. A standard mortgage clause, also known as a union or New York mortgage clause, uses language similar to the loss-payable, but further stipulates that, as to the interest of the mortgagee, the insurance shall not be invalidated by certain specified acts of the insured, which continue as grounds of forfeiture against him. The following is an example of a standard clause:
[T]his insurance, as to the interest of the mortgagee only, shall not be invalidated by any act or neglect of the mortgagor or the owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership [of] the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy, provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee shall, on demand, pay the same.
Id. at 92, 488 S.E.2d at 341. (Citations omitted.)
It is generally held that standard mortgage clauses create independent contracts for the insurance of the mortgagee’s interest. See Foremost Ins. Co. v. Allstate Ins. Co., 439 Mich. 318, 486 N.W.2d 600 (1992); Equality Savings & Loan Ass’n v. Missouri Property Ins. Placement Facility, 537 S.W.2d 440 (Mo. Ct. App. 1976); Prudential Ins. Co v. Franklin Fire Ins. Co., 180 S.C. 250, 185 S.E. 537 (1936). In Arkansas, we have likewise held that generally, a standard mortgage clause serves as a separate contract between the mortgagee and the insurer, as if the mortgagee had independently applied for insurance. Columbia Mut. v. Home Mut. Fire, supra (citing Fireman’s Fund Ins. Co. v. Rogers, 18 Ark. App. 142, 712 S.W.2d 311 (1986)). Thus, the rights of a named mortgagee in an insurance policy are not affected by any act of the insured, including improper and negligent acts. Columbia Mut. v. Home Mut. Fire, supra (citing Hatley v. Payne, 25 Ark. App. 8, 751 S.W.2d 20 (1988)).
The policy language in question provides that:
Loss, if any, under this policy, shall be payable to the mortgagee (or trustee), named on the Declarations page of this policy, as interests may appear, under all present or future mortgages upon said mortgages, and this insurance as to the interest of the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or any other proceedings or notice of sale relating to the property, nor by any change in the tide or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same [emphasis added]. Provided, also, that the mortgagee (or trustee) shall notify us [emphasis in original] of any change of ownership or occupancy or increase of hazard which shall come to the knowledge of said mortgagee (or trustee) and, unless permitted by this policy, it shall be noted thereon and the mortgagee (or trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof, otherwise this policy shall be null and void.
This is a standard mortgage clause, which under Arkansas law, serves as a separate contract between the Bank and Farmers, as if the Bank had independently applied for insurance. We agree with the trial court’s finding that the policy language, when construed in its plain, ordinary, popular sense, is at best ambiguous, thereby requiring that the policy be liberally construed in favor of the Bank and strictly against Farmers. Viewing the evidence in a fight most favorable to the Bank and resolving all inferences in its favor, we cannot say that the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Therefore, we affirm on this point.
II. Whether the three letters mailed to Hawkins and Bank constituted a “demand”
In the alternative, Farmers argues that if this court finds that demand on the mortgagee was required under the terms of the policy, then the three letters it mailed to the Bank regarding Hawkins’s nonpayment of the premium were sufficient to constitute a demand that it pay the premium. Appellant’s argument is unpersuasive.
A “demand” is “a requisition or request to do a particular thing specified under a claim of right on the part of the person requesting.” Babbit v. Chicago & Alston Ry. Co., 149 Mo. App. 439, 130 S.W. 364 (1910). The word “demand” need not be used in making such a legal request, but it is sufficient if any words are used which are understood by both parties to be a demand. Id. The proof of a demand may be shown by circumstantial evidence, or may be inferred from the actions and declarations of the parties as proven by direct evidence. Id.
This is not a case wherein there was no duty to inform because of a lack of contractual relationship. See Columbia Mut. v. Home Mut. Fire, supra. There existed a separate contract between Farmers and the Bank. An insurer’s right to cancel a policy containing a standard mortgage clause on the mortgagee’s failure, on demand, to pay premiums can be exercised only after strict compliance by the insurer with the terms of the agreement between the insurer and the mortgagee. See American Mercury Ins. Co. v. Inland-Western Fin. Co., 6 Ariz. App. 409, 433 P.2d 60 (1967). In American Mercury Insurance Co. v. Inland-Western Finance Co., the appellee, named as the mortgagee in a policy covering an aircraft, was granted summary judgment against the appellant. Appellant appealed, contending that the copy of the notice of possible future cancellation it sent to the appellee was a sufficient demand for payment and notice of cancellation under the terms of the breach of warranty endorsement. The Arizona Court of Appeals disagreed, holding that:
A separate contract of insurance was created between the appellant and the appellee and the terms of the contract had to be strictly complied with. The notice of cancellation mailed out by appellant did not meet the requirement of strict compliance. The notice did not demand payment of the premium by the appellee. It was directed to Mr. Widmer [the insured] with a notation that a copy was being sent to appellee and it merely stated that the policy would be cancelled at a future date if the premium was not paid.
Id. at 411, 433 P.2d at 62.
Likewise in the instant case, the three letters Farmers mailed to Hawkins with a notation that a copy was being sent to the Bank did not meet the requirement of strict compliance. Although the cancellation language in the policy provided that proof of mailing alone would constitute sufficient proof of notice, we cannot, under this policy, construe this language to be the same as a demand by Farmers to the Bank. Therefore, we affirm.
Because we affirm for the foregoing reasons, we need not reach appellant’s remaining argument.
Affirmed.
Gladwin and Baker, JJ., agree. | [
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Terry Crabtree, Judge.
George Felton died on January 15, 1999. He made several wills and trusts during his lifetime. At the time of his death, the decedent had resided in a nursing home for approximately ten months. Appellant Mary Remington is a niece of the decedent. Appellant originally filed a petition seeking appointment as administrator of the decedent’s estate, alleging that he died intestate. Appellee John Roberson filed a petition seeking to have a copy of a will dated July 15, 1997, admitted to probate as a “lost will.” Appellee is named as executor under the July 1997 will but is not a beneficiary under that will. Appellant filed a petition seeking to have an undated holographic instrument admitted to probate as the last will of the decedent. This appeal is from an order establishing appellee’s proffered document as a lost will and admitting that will to probate while denying admission to probate of the holographic instrument proffered by appellant. We reverse.
By letter opinion dated April 26, 2001, the trial court found that the July 1997 will was not found among the decedent’s papers at his death, thereby raising the presumption that the decedent revoked or destroyed the will. The trial court then found that appellee had rebutted the presumption and that the July 1997 doc ument was a “lost will” within the meaning of Ark. Code Ann. § 28-40-302 (1987). By letter opinion dated July 24, 2001, the trial court found that the holographic document proffered by appellant was not valid because it lacked a date and, without a date, it could not be determined without speculation whether it was executed prior or subsequent to the July 1997 lost will. An order incorporating the findings of the two letter opinions and admitting the July 1997 lost will to probate was entered on August 3, 2001. This appeal followed.
On appeal, “[p] róbate cases are reviewed de novo . . . [and] we will not reverse the probate judge’s findings of fact unless they are clearly erroneous. ... A finding is clearly erroneous when, although there is evidence to support it, we are left on the entire evidence with the firm conviction that a mistake has been committed.” Snowden v. Riggins, 70 Ark. App. 1, 7-8, 13 S.W.3d 598, 602 (2000) (citations omitted); see also Ark. R. Civ. P. 52(a). Due deference will be given to the superior position of the probate judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Wells v. Estate of Wells, 325 Ark. 16, 922 S.W.2d715 (1996). Furthermore, “[w]hile we will not overturn the probate judge’s factual determinations unless they are clearly erroneous, we are free in a de novo review to reach a different result required by the law.” Standridge v. Standridge, 304 Ark. 364, 370, 803 S.W.2d 496, 499 (1991) (citations omitted).
For her first point, appellant argues that the trial court erred in admitting a copy of the July 15, 1997, will to probate as a lost will. There is a presumption that a testator destroyed a will, executed by him in his lifetime, with the intention of revoking the will, if he retained custody of the will or had access to it, and if it could not be found after his death. Garrett v. Butler, 229 Ark. 653, 317 S.W.2d 283 (1958); Porter v. Sheffield, 212 Ark. 1015, 208 S.W.2d 999 (1948); Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994). This presumption, however, may be overcome by proof. Garrett, supra. The proponent of the will has the burden of proving by a preponderance of the evidence that the decedent did not revoke the will during his lifetime. Id., see also Thomas v. Thomas, 30 Ark. App. 152, 784 S.W.2d 173 (1990). The trial court found that appellee had rebutted the presumption.
The first reason given by the trial court in support of the conclusion that appellee had rebutted the presumption is that there was no direct evidence that the decedent destroyed the will. The presumption is that the will was destroyed and arises from the fact that the will cannot be located upon the testator’s death. Porter v. Sheffield, supra. It then falls on appellee to prove that the will was not destroyed. Thomas v. Thomas, supra. Under section 28-40-302, the proponent of a lost will must establish the terms of the will and that the will was in existence or that the will was fraudulently destroyed in the lifetime of the testator. Matheny v. Heirs of Oldfield, 72 Ark. App. 46, 32 S.W.3d 491 (2000). The finding that there was no direct evidence that the will was destroyed cannot be used to rebut the presumption because that would turn the presumption on its head. The trial court pointed out that the decedent made statements that he was not happy with appellee serving as executor and that he was going to tear up the will. Mary Sabbs, a neighbor who regularly assisted the decedent with errands, testified that the decedent, while residing in the nursing home, wanted her to take him to attorney William Reed’s office. Two attorneys testified that the decedent frequently changed his will. Such statements can be considered as strengthening the presumption of revocation. Bradway v. Thompson, 139 Ark. 542, 214 S.W. 27 (1919). In Garrett v. Butler, supra, the court held that the absence of testimony that the decedent wanted to change his will supported the trial court’s finding that the presumption had been rebutted.
The second reason given by the trial court for overcoming the presumption of revocation is that, even though the original will could not be found, the decedent retained a copy of the will. This is a factor that should not be considered in determining whether the presumption of revocation has been rebutted. It is the failure to produce the original document that raises the presumption of revocation. See Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). Thus, the fact that only a copy has been found is evidence that establishes and promotes the presumption; therefore, that same evidence cannot logically be considered as proof that overcomes the presumption. See In re Estate of Millsap, 75 Ill. 2d 247, 388 N.E.2d 374 (1979). Other courts have held that a copy of a will found after the testator’s death in a place of safekeeping, such as a safe deposit box or the files of the attorney drafting the will, cannot be considered in determining whether the presumption of revocation has been rebutted. Estate of McKeever, 361 A.2d 166 (D.C. 1976); In re Estate of Fowler, 681 N.E.2d 739 (Ind. Ct. App. 1997); New York State Library Sch. Ass’n, Inc. v. Atwater, 227 Md. 155, 175 A.2d 592 (1961); Bailey v. Bailey, 171 S. W. 2d 162 (Tex. Ct. Civ. App. 1943), overruled on other grounds by In re Estate of Glover, 744 S.W.2d 939 (Tex. 1988).
The third reason the trial court gave for finding that appellee had rebutted the presumption is that there was no evidence that the decedent contacted an attorney. As part of his finding on this point, the trial court determined that the decedent had a practice of revoking wills by execution of a subsequent will. The execution of a subsequent will is not the only method by which one can revoke a will, nor is there any requirement that an attorney assist in such revocation. Arkansas Code Annotated section 28-25-109(a)(2) (1987) provides that “[a] will ... is revoked [b]y being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.” Mary Sabbs testified that the decedent, while residing in the nursing home, wanted her to take him to attorney Reed’s office.
The fourth reason given by the trial court was that the decedent was confined to a nursing home and in deteriorating physical condition. This is a proper consideration for determining whether the presumption of revocation was rebutted. Tucker v. Stacy, 272 Ark. 475, 616 S.W.2d 473 (1981); Garrett v. Butler, supra.
We do not believe that appellee has met his burden in establishing a lost will because the evidence was insufficient to rebut the presumption of revocation due to the trial court incorrectly applying the presumption that the will was destroyed.
We reverse on this point.
For her second point, appellant argues that the trial court erred in not admitting the holographic instrument to probate because the holographic document did not contain a date of execution. We do not reach the issue because it is moot. The beneficiary under the holographic document, Francis Felton, predeceased the decedent. Under Ark. Code Ann. § 28-9-203 (1987), the lapsed devise of the holographic document would pass under intestate succession.
Reversed.
Pittman and Robbins, JJ., agree.
Appellant and her sister, Margaret Scott, are the daughters of Francis Felton, the decedent’s brother. Francis Felton predeceased George Felton. The notice of appeal lists both appellant and Margaret Scott as the parties appealing the trial court’s order. A separate notice of appeal was filed on behalf of Rita Pixley and Daniel Beaudry, the great-niece and great-nephew of the decedent. We refer to Mary Remington as the appellant.
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Larry D. Vaught, Judge.
This is an appeal from a deci-J — / sion of the Drew County Circuit Court in which three pieces of property located in Monticello, Arkansas, were forfeited subsequent to the drug convictions of the property owners, Glen and Kathy Rabb, and an equitable lien in one of the properties was granted to Glen Rabb’s mother, Betty Rabb. On appeal, the Rabbs assert that the State failed to show by a preponderance of the evidence that the property was subject to forfeiture. On cross-appeal, the State contends that the trial court erred in finding that Betty Rabb held an equitable interest in the 509 South Main Street property. We affirm the trial court’s decision regarding the forfeiture of the properties but reverse the grant of the equitable lien to Betty Rabb.
On October 28, 1998, Glen Rabb was arrested in California on a probation violation. During a search of Glen Rabb’s apartment, California authorities found evidence of a drug link to his wife, Kathy Rabb, then living in Monticello, Arkansas. The California authorities contacted Arkansas authorities, and eventually two search warrants were executed on the residence of Kathy Rabb located at 507 Church Street in Monticello, Arkansas. On October 29, 1998, the initial search of the property was conducted, from which authorities seized approximately $4,000 in cash, drugs, and drug paraphernalia. A second search of the property on November 13, 1998, yielded approximately seven ounces of methamphetamine, $7,000 hidden in the bathroom, $141,000 hidden in the kitchen, and $177,000 hidden in a safe concealed in the floor of an upstairs bedroom closet. These items were seized by authorities, along with numerous documents such as phone and tax records, and handwritten records which appeared to be “pay and owe” ledgers involved in drug trafficking.
On November 18, 1998, the State filed an in personam complaint in Drew County Circuit Court for the seizure of property located at 507 North Church Street and sought an ex parte temporary restraining order pending convictions of Glen and Kathy Rabb for drug trafficking. That same day, the circuit court entered an ex parte order enjoining and restraining Glen and Kathy Rabb from “selling, encumbering, mortgaging, contracting to sell, or otherwise disposing of or removing” the 507 North Church Street property or its contents. On November 19, 1998, the State filed a notice of Us pendens concerning three parcels of property: 507 North Church Street, and 509 and 513 South Main Street.
On November 23, 1998, the State filed a motion for an ex parte temporary restraining order regarding the two properties located at 509 and 513 South Main Street. That same day, the circuit court entered an ex parte order enjoining and restraining Glen and Kathy Rabb from “selling, encumbering, mortgaging, contracting to sell, or otherwise disposing of or removing” the two Main Street properties. Both Glen and Kathy Rabb filed answers to the in personam complaint denying that the real properties were subject to forfeiture.
Glen and Kathy Rabb were charged with conspiracy to deliver a controlled substance, methamphetamine; and Kathy Rabb was additionally charged with possession with intent to deliver, and simultaneous possession of a firearm and a controlled substance. On June 17, 1999, Kathy Rabb was convicted on all charges. See Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001) (affirming the convictions with the exception of the simultaneous possession conviction). On August 24, 1999, the circuit court entered an order in which the parties stipulated that all three parcels of property “shall remain subject to the orders granting temporary injunctive relief.” On February 17, 2000, Glen Rabb was convicted of conspiracy to deliver a controlled substance (methamphetamine). See Rabb v. State, CACR 00-01010, (Ark. App. Sept. 2001) (affirming the conviction).
On April 14, 2000, the State filed an in rem complaint for the forfeiture of the three Monticello, Arkanas, properties located at 507 Church Street, 509 Main Street, and 513 Main Street, alleging that both Glen and Kathy Rabb had been convicted of violating the Arkansas Uniform Controlled Substances Act. On May 8, 2000, a warranty deed was filed regarding the 507 North Church Street property, attempting to transfer the property from Glen and Kathy Rabb to Glen’s mother, Betty Rabb. On June 2, 2000, a warranty deed was filed regarding the 509 South Main Street property, attempting to transfer it from Kathy Rabb to Betty Rabb.
On January 30, 2001, a warning order was filed notifying potential claimants that the State had filed an in rem forfeiture action against the three parcels of property. On February 2, 2001, Betty Rabb, as a potential claimant, was served with notice of the warning order. Additionally, the proof of publication showed that the warning order was published for two consecutive weeks, beginning February 7, 2001. On February 27, 2001, Glen, Kathy, and Betty Rabb filed an answer, claiming an interest in all three properties. Additionally, Betty Rabb claimed an equitable interest in all three properties based upon her payment of real property taxes on the properties, and specifically, an equitable lien as to the 509 South Main Street property based upon her payoff of the Commercial Bank mortgage on May 11, 1999, in the amount of $15,764.36.
A trial on the in rem action was held on May 14, 2001, after which the judge took the case under advisement. On September 21, 2001, the judge entered an order finding that all three parcels of land were acquired and used for the purpose of possession, sale, and distribution of controlled substances in violation of Ark. Code Ann. § 5-64-401 (Supp. 1999), and accordingly forfeited all three pieces of property to the State. Additionally, he found that Betty Rabb held an equitable lien in the amount of $15,764.36, based upon her paying off the mortgage on the property located at 509 South Main Street. From that order, comes the appeal regarding the forfeiture of the three pieces of property and the cross-appeal by the State seeking to set aside Betty Rabb’s equitable lien in the 509 South Main Street property.
A forfeiture is an in rem civil proceeding, independent of the criminal charge, and to be decided by a preponderance of the evidence. This court will set aside the trial judge’s findings only if they are clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. See Ark. R. Civ. P. 52(a); In Re: One 1994 Chevrolet Camaro, 343 Ark. 751, 37 S.W.3d 613 (2001); Reddin v. State, 15 Ark. App. 399, 695 S.W.2d 394 (1985). A finding is “clearly erroneous” when, although there is evidence to support it, the appellate court is left, upon viewing the entire evidence, with the definite and firm conviction that a mistake has been made. Statco Wireless, LLC v. Southwestern Bell Wireless, LLC, 80 Ark. App. 284, 95 S.W.3d 13 (2003).
I. Whether the State failed to show by a preponderance of the evidence that the property ivas subject to forfeiture.
Arkansas Code Annotated section 5-64-505 is part of the Uniform Controlled Substances Act and sets forth the property that is subject to forfeiture under the act along with the procedures to be followed. The relevant parts of section 5-64-505 (a) (6) & (7) (Supp. 1999) state:
(а) Items subject to forfeiture. The following are subject to forfeiture upon the initiation of a civil proceeding filed by the prosecuting attorney and when so ordered by the circuit court in accordance with this section . . . :
(б) Everything.of value furnished or intended to be furnished in exchange for a controlled substance or counterfeit substance in violation of this chapter, all proceeds and profits traceable to such an exchange ....
(7) Real property may be forfeited under this chapter if it substantially assisted in, facilitated in any manner, or was used or intended for use in the commission of any act prohibited by this chapter ....
(Emphasis added.) The Rabbs argue that the State failed to show by a preponderance of the evidence that any of the three properties either substantially assisted in, facilitated in any manner, or was used or intended for use in the commission of any act prohibited by the Uniform Controlled Substances Act, and that there was no “active” participation between the real property and the criminal defendants in the facilitation of any offense committed.
The Rabbs argue with respect to the property located at 513 South Main Street that it has never even been the subject of the execution of a search warrant or sting operation, and that the only evidence related to it was the introduction of the deed, its location, and the year it was purchased. They assert that there was litde more evidence offered related to the property located at 509 South Main Street. Reference is made to a handwritten document relating to some insurance and tax payments made either from an unidentified savings account or by Kathy Rabb. Their basic argument is that the State failed to provide any evidence that either piece of property was related to the Rabbs’ drug activities.
While admitting that the property located at 507 Church Street presents more of a problem, as it was the property that was subject to the two searches that yielded drugs, large amounts of hidden cash, and records relating to the criminal activities in ques tion, the Rabbs still maintain that the State failed to meet its burden by a preponderance of the evidence that the property was subject to forfeiture. They claim that although there were drugs and money in the residence, that is insufficient proof because the State failed to provide any evidence that drugs were sold out of the house.
The State points to the drugs and large amount of hidden cash seized from the 507 North Church Street property during the two searches, and claims that the evidence showed that the property was used in the commission of the drug-trafficking activities and as a storage location both for illegal narcotics and for the proceeds of illegal drug activity. We agree that there is clearly a strong nexus between the 507 North Church Street property and the Rabbs’ illegal drug activity, thus making it subject to forfeiture under Ark. Code Ann. § 5-64-505 (a) (7).
The State argues, pursuant to Ark. Code Ann. § 5-64-505(a)(6), that the two properties located on South Main Street were purchased with proceeds and profits traceable to drug-trafficking activities in violation of the Uniform Controlled Substances Act. We agree that this is appropriate because there is not a strong enough nexus between those properties and the Rabbs’ illegal drug activity to satisfy the requirement of Ark. Code Ann. § 5-64-505 (a) (7) that the property “substantially assisted in, facilitated in any manner, or was used or intended for use in the commission of any act prohibited by the Uniform Controlled Substances Act.”
Arkansas Code Annotated section 5-64-505(g)(5)(B) (Supp. 1999), sets forth the burden of proof in a forfeiture proceeding:
If a timely answer has been filed, the prosecuting attorney shall have the burden of proving by a preponderance of the evidence that the seized property should be forfeited. After the prosecuting attorney has presented such proof, any owner or interest holder of the property seized shall be allowed to present evidence why such property should not be forfeited. If the court determines that grounds for forfeiting the property exist and that no defense to forfeiture has been established by the owner or interest holder, the court shall enter an order pursuant to subsection (h) of this section. However, if the court determines either that the prose cuting attorney has failed to establish that such grounds exist or that the owner or interest holder has established a defense to forfeiture, the court shall order that the property be immediately returned to the owner or interest holder.
(Emphasis added.) The State was required to prove by a preponderance of the evidence that the South Main Street properties were purchased with proceeds traceable to the drug-trafficking activities. The federal forfeiture statute, found at 21 U.S.C. § 881, is substantially similar to the Arkansas statute; however, under the federal statute the burden of proof shifts to the defendant once the government has established probable cause. While Arkansas case law has not addressed the evidence necessary to sustain the forfeiture of real property under Ark. Code Ann. § 5-64-505, federal cases provide some guidance. Probable cause under the federal statute has been upheld where the drug activity of the owner has been established and there is evidence that the owner had no legitimate source of income at the time the property in question was purchased. See United States v. Carrell, 252 F.3d 1193 (11th Cir. 2001); United States v. Two Parcels of Real Property Located in Russell County, Alabama, 92 F.3d 1123 (11th Cir. 1996); United States v. Thomas, 913 F.2d 1111 (4th Cir. 1990); and U.S. v. Certain Property Situated at Route 3, Box 247E, Mountain Home, AR, 568 F.Supp. 434 (W.D. Ark. 1983). Although the federal cases rely on shifting the burden of proof to the defendant once probable cause has been established, they are instructive with regard to types of proof accepted by courts.
The Arkansas forfeiture statute does not shift the burden of proof to the Rabbs to show that the property was purchased with legitimate sources, but it does require a defense to be articulated once the State has met its burden. The State provided evidence at the forfeiture trial that in 1996 and 1997, at the time the South Main Street properties were purchased, Kathy Rabb had no legitimate source of income. There was testimony from Lieutenant DeMent, and additional evidence discovered from a review of the documents and records seized from 507 North Church Street, that the drug-trafficking conspiracy began in late 1993 or early 1994. The State introduced Social Security records found at the 507 North Church Street property that listed no reported income for Kathy for 1994, 1995, or 1996; and that neither 1997 nor 1998 income had been reported. Lieutenant DeMent testified that authorities checked all her personal records, bank records, bank account statements, etc. and never found check stubs from a place of employment, tax returns, or any other indication that she had a legitimate source of income for the period during which the South Main Street properties were purchased. Although she was unemployed and reported no income to the federal government for the years in question, evidence was introduced that she wrote checks in the amount of $16,000 and $9,000 on her Commercial Bank account for part of the purchase price for the South Main Street properties.
There was also evidence relating to a document retrieved from the North Church Street property, which read “Check T savings to see if taken from it. If not then Kathy paid with her money, $270.00 2/96 (509 South Main)(insurance),” and “$272.00 2/97 (509 South Main)(insurance),” and “10/97 (real taxes.)” Lieutenant DeMent testified that the document referenced various payments made on the 509 South Main Street property for insurance and taxes. He explained that authorities never discovered a legitimate savings account in any bank that corresponded to all the references in the narcotics documentation to the “T savings account” and that they presumed it to be funds received from the drug pay and owe sheet. When specifically asked if his office was making the allegation that the properties on [South] Main Street were purchased from the illegal drug funds, Lieutenant DeMent stated unequivocally, “Yes, I am.” He referenced the $16,000 and $9,000 checks written from Kathy Rabb’s account during the period she was unemployed and stated that he did believe it was drug money.
Subsequent to the testimony of Lieutenant DeMent and the introduction of the evidence related to her sources of income, Kathy Rabb presented absolutely no evidence rebutting the evidence that the properties were purchased with proceeds of the drug-trafficking activities. While the burden of proof is on the State, the lack of evidence showing that the property should not be subject to forfeiture was specifically something to be weighed by the trial court pursuant to Ark. Code Ann. § 5-64-505(g)(5)(B).
The State contends that this evidence was sufficient to meet its burden of proof. While the evidence is more persuasive on the North Church Street property, we hold that the State provided the bare minimum needed to meet its burden, giving due regard to the opportunity of the trial court to judge the credibility of the evidence and witnesses. See Reddin, supra. The preponderance of the evidence shows that the three properties in question were subject to forfeiture, and we cannot say that the trial court’s decision is clearly erroneous as we are not left with the definite and firm conviction that a mistake has been made. Accordingly, we affirm the decision forfeiting the property.
II. Whether the trial court erred in finding that Betty Rabb held an equitable interest in the 509 South Main Street property.
This is a cross-appeal filed by the State, to which no reply was filed. As set forth above, on November 18, 1998, the circuit court granted the State’s motion for a temporary restraining order enjoining and restraining the Rabbs from “selling, encumbering, mortgaging, contracting to sell, or otherwise disposing of or removing” the 507 North Church Street property or its contents. On November 19, 1998, the State filed a notice of lis pendens concerning all three parcels of property. On November 23, 1998, the circuit court granted the State’s motion for a temporary restraining order enjoining and restraining the Rabbs from “selling, encumbering, mortgaging, contracting to sell, or otherwise disposing of or removing” the two South Main Street properties.
On May 11, 1999, $15,764.36 was withdrawn from Commercial Bank savings account No. 310-904 which presumably belonged to Betty Rabb. She is the person who signed the withdrawal slip, and no one disputed that it was her account. On the same day, a cashier’s check in the same amount was drawn on Commercial Bank and made payable to Portland Bank, listing as the remitter Kathy and Glen Rabb, for the payoff of loan No. 8060029. At the forfeiture trial, Betty Rabb testified that she obtained a loan, which she deposited in her savings.account, and then used the proceeds to pay off the mortgage on the 507 North Church Street property. Contrarily, Betty Rabb’s pleadings asserted and, the circuit court granted her, an equitable interest for that amount in the 509 South Main Street property. Almost three and a half months subsequent to that transaction, on August 24, 1999, the trial court entered an order in which Glen and Kathy Rabb stipulated that both the 507 North Church Street and 509 South Main Street properties would remain subject to the temporary restraining orders previously issued.
The State argues that regardless of which loan she paid off, Betty Rabb did not obtain an equitable interest in any of the properties in question. The State asserts that there was neither an express nor implied agreement to create a lien on the property, real or personal, as security for an obligation, and that the loan itself does not give rise to a lien unless there was fraud in its procurement. See Mitchell v. Mitchell, 28 Ark. App. 295, 773 S.W.2d 853 (1989). There is no evidence that Betty Rabb purchased the loan from Commercial Bank or that the bank gave her an assignment entitling her to stand in place of the bank as a secured creditor. At most, there is testimony from Betty Rabb that she spoke to lawyers for both Kathy Rabb and the bank regarding her position if she paid off the mortgage, and that they told her she would stand in the bank’s position. Betty Rabb contended that they were supposed to “fix up” papers conveying.an interest to her but that it never happened. She admits that she neither sought independent representation to make sure her interests were protected nor checked to see if the property was in any way encumbered prior to paying off the mortgage.
The only documentation regarding her alleged interest in the property provided by Betty Rabb consisted of the savings account withdrawal slip for $15,764.36, the cashier’s check by which she paid off loan No. 8060029, a warranty deed for the 509 South Main Street property dated June 2, 2000, and a warranty deed for the 507 North Church Street property dated May 8, 2000. She has no claim that she was a bona fide purchaser of the property without notice, actual or constructive, or that the property was encumbered by a lis pendens filing and a temporary restraining order prohibiting the transfer of the property. See Orr v. Orr, 211 Ark. 1062, 204 S.W.2d 545 (1947). The State maintains that Betty Rabb gratuitously paid off the loan without properly retaining any rights to or interest in the property, in effect making the loan a gift to Glen and Kathy Rabb.
We have held that “the mere loan of money for the purchase of property does not result in an equitable lien in favor of the lender.” Warren v. Warren, 11 Ark. App. 58, 61, 665 S.W.2d 909, 910-11 (1984). Betty Rabb did not assert that her payoff of the loan was premised upon any agreement that she would be secured by an equitable hen, or that either Glen or Kathy Rabb would repay her. She failed to present evidence that there was any express or implied agreement to create a Hen on the property. Further, she did not argue that the payoff was somehow obtained by trickery or fraud. Because the evidence does not show any agreement to give the lender, Betty Rabb, a Hen, or that the loan was acquired through trickery or fraud, it was error for the trial judge to impress an equitable Hen upon the property based upon her payoff of a loan six months after the lis pendens was filed and the trial court had entered an order enjoining and restraining the Rabbs from doing anything that might affect the properties. Accordingly, we reverse and remand on that point with directions to cancel the equitable Hen awarded to Betty Rabb.
Appeal affirmed.
Cross-appeal reversed and remanded.
Stroud, C.J., and Neal, J., agree.
The legal descriptions for the three properties are: (a) S 70* N 210’ W 200’ of Block 219 Monticello Original Plat, City of Monticello, Drew County, Arkansas, also known as 509 South Main Street, Monticello, Arkansas; (b) S 70’ N 140’ W 200’ of Block 210 Monticello Original Plat, City of Monticello, Drew County, Arkansas, also known as 513 South Main Street, Monticello, Arkansas; (c) All of Block 4 of Monticello Original Plat except for 125 feet on the south side, City of Monticello, Drew County, Arkansas, also known as 507 North Church Street, Monticello, Arkansas.
507 North Church Street was owned at the time by Glen and Kathy Rabb; the 509 and 513 South Main Street properties were held only in the name of Kathy Rabb.
Although the State refers to the 2001 supplement of Ark. Code Ann. § 5-64-505, we cite to the 1999 supplement, which was in effect at the time of the forfeiture trial on May 14, 2001. The 2001 amendment became effective as of August 13, 2001; however, the text of the relevant subsections is identical in both the 1999 and 2001 supplements. | [
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Karen R. Baker, Judge.
Appellant, Mary Dawn May Carver, appeals from an order of the Sebastian County Circuit Court changing custody of the parties’ minor children to appellee, Paul Jared May, the children’s father. She argues on appeal that the trial court erred when it granted appellee’s petition to modify custody and placed custody with appellee. She further asserts that there was no material change of circumstances from the decree filed December 8, 2000, granting her initial custody of the parties’ two preschool-aged daughters, and that it was not in the best interests of the children to change custody. We affirm.
The parties were divorced in December 8, 2000. There were two children born of the marriage, H.M., born May 24, 1997, and A.M., born December 12, 1998. Appellant was awarded custody of the two minor children because she was the primary caretaker of the children, and as specifically stated in the divorce decree, because “the extreme animosity of [appellee] and his family toward [appellant] would be prohibitive to [appellant] having a continued relationship with the minor children should the Court award custody to [appellee].” In the decree, appellant was granted permission to move with the children to her home state of Washington. Appellee was granted standard visitation in Arkansas for Christmas and summer vacations. All other visitation was to be in Washington. Appellee was also ordered to pay child support of $68 a week and to provide appellant with her share of the 1999 income-tax refund of $1,574.
On December 12, 2000, less than one month after the divorce decree had been filed, appellee was refused his first visitation by appellant. Appellant testified that she was attempting at that point to postpone visitation until the attorneys and the court could be involved because the children were only allowed to go to Arkansas twice a year, and they had already been to Arkansas twice prior to the divorce. On May 15, 2001, appellee filed a motion for extension of summer visitation, requesting three full months of summer visitation. On May 30, 2001, appellee filed a petition to modify custody alleging that appellant would not agree to the three-month summer visitation and that appellant was interfering with phone visitation. Appellant responded with a letter agreeing to give appellee more summer visitation, but less than three months. On June 6, 2001, appellant filed a motion for contempt, alleging that appellee had failed to pay his child support, was in, arrears, and that appellee had failed to provide her with the money from the income-tax return.
Appellee next attempted to exercise visitation in June 2001. He drove to Washington, where he was surrounded by police and drug agents as he stepped out of his hotel. The incident was the result of an anonymous tip generated by appellant, her mother, and a third person. The officers searched appellee and his vehicle. The search proved fruitless, and he was allowed to resume his visitation with his children. On June 27, 2001, appellee filed a motion for contempt alleging that appellant had caused him to be searched by drug officers for drugs upon his arrival in Washington for visitation. At the conclusion of the summer visitation, appellant arrived at appellee’s home in Greenwood, Arkansas, with a sheriffs deputy who proceeded to search the children’s luggage. The search revealed nothing. Shordy after their return to Washington, following appellee’s summer visitation, appellant made allegations of sexual abuse of the children by appellee. The resulting investigation was closed as unsubstantiated and on November 13, 2001, appellee filed a motion alleging that appellant falsely accused him of molesting his children. Despite the results of the investigation, on December 11, 2001, appellant filed a petition and affidavit for a protective order in Washington based upon the same allegations of sexual abuse. In December 2001, appellee once again made the trip to Washington to exercise his Christmas visitation. When he arrived at the appellant’s home, he was served with a protection order prohibiting him from contacting the children and notice of a hearing in twelve days. Appellee remained in a hotel in Washington for the twelve days until the hearing. Following the hearing regarding the protection order, appellee was allowed four hours of visitation with the children, which was supervised by appellant at her home.
At the conclusion of the hearing in Arkansas on appellee’s petition to modify custody, the trial court found that there had been a material change of circumstances and that it was now in the best interest of the children that custody be placed with the father. This appeal followed.
In child-custody cases, we review the evidence de novo, but we do not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child-custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 177 (1986). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999).
The principles governing the modification of custodial orders are well-settled and require no citation. The primary consideration is the best interest and welfare of the child. All other considerations are secondary. Custody awards are not made or changed to punish or reward or gratify the desires of either parent. Although the chancery court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child. Before that order can be changed, there must be proof of material facts which were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. The burden of proving such a change is on the party seeking the modification. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001) (citing Watts v. Watts, supra.)
Appellee asserts that appellant has become so combative, uncooperative, and hostile concerning his parental rights that a substantial change in circumstances has occurred. Appellee contends that it was appellant’s goal to make visitation so miserable and expensive that appellee would give up his parental rights. There is a two-step process through which a court must proceed in deciding a petition for change of custody. Riley v. Riley, 45 Ark. App. 165, 873 S.W.2d 564 (1994). First, the chancellor must determine whether there has been a significant change in the circumstances of the parties since the most recent custody decree. Id. If the trial judge finds that a significant change in circumstances has occurred, the court must then decide custody placement with the primary consideration being the best interest of the children. Id. (citing Anderson v. Anderson, 43 Ark. App. 194, 197, 863 S.W.2d 325, 327 (1993)). In the present case, the trial judge stated in his opinion that previously “in making its visitation order that it was going to be very difficult for [appellee] to maintain a relationship with his children and that the full cooperation of [appellant] was going to be absolutely necessary.”
In Hepp v. Hepp, 61 Ark. App. 240, 968 S.W.2d 62 (1998), we held that violation of the court’s previous directives does not compel a change in custody. The fact that a party seeking to retain custody of a child has violated court orders is a factor to be taken into consideration, but it is not so conclusive as to require the court to act contrary to the best interest of the child. Johnson v. Arledge, 258 Ark. 608, 527 S.W.2d 917 (1975); Kerby v. Kerby, 31 Ark. App. 260, 792 S.W.2d 364 (1990). To hold otherwise would permit the desire to punish a parent to override the paramount consideration in all custody cases, i.e., the welfare of the child involved. Id. Moreover, to ensure compliance with its orders, a trial judge has at his or her disposal the power of contempt. And, we have said that a court’s contempt powers should be used prior to the more drastic measure of changing custody, Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986), which is keeping with the principle that custody is not to be changed merely to punish or reward a parent. Harvell v. Harvell, 36 Ark. App. 24, 820 S.W.2d 463 (1991). In addition, we have held that whether one parent is alienating a child from the other is also an important factor to be considered in change-of-custody cases because a caring relationship with both' parents is essential to a healthy upbringing. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997).
In this case, appellant’s actions alienated the children from their father by interfering with visitation to such a degree as to affect the well-being of the children. Not only did appellant repeatedly interfere with appellee’s visitation, beginning less than one month after the divorce decree was filed, she instigated a sexual-abuse investigation when the children returned to Washington after their summer visitation with their father. The investigation was based on appellant’s observations that the children had begun exhibiting behavioral changes when they returned from visiting appellee that summer. Testimony from Ken Hunt, an investigator with the Arkansas State Police Crimes Against Children Division, showed that the hotline received a tip in July 2001 that prompted the investigation. The two children were subjected to sexual-assault examinations at the Providence St. Peter Hospital; however, the medical examination report stated that the examinations were normal with respect to both children. Laila Thompson, a child and family therapist with the Cascade Mental Health Care, testified in her deposition that she saw H.M. on July 10, 2001, because appellant believed the child was experiencing a change behaviorally after returning from visitation with her father, such as not sleeping at night, nightmares, refusing to go to sleep alone, and talking about doing things to her sister that she had never done before. During observation, Ms. Thompson testified that H.M. told her that “daddy touched me and my sister,” and that H.M. pointed to her genital area. In Rebecca Tetizel’s deposition testimony, she stated that she was an educational assistant for the Centraba School District. While A.M. was at school one day after returning from seeing her father, she showed signs of a behavioral change, such as shaking and crying when her diaper was being changed. Nonetheless, based on the medical report and other factors including the interviews he conducted during the investigation, Mr. Hunt “closed [the] investigation as ‘Unsubstantiated.’”
It was not until the following December, when appellee drove to Washington to begin Christmas visitation, that he was met with a protective order at appellant’s home prohibiting him from having any contact with the children, premised on the behavioral changes exhibited in July. After waiting in a hotel for twelve days for the hearing, he was given four hours of supervised visitation in appellant’s home. It is clear that appellant was intentionally thwarting any opportunity for appellee to visit his children and attempting to alienate them from their father. Former spouses are often hostile to one another, and it is unfortunate when their children are forced to bear the consequences. We agree with the trial judge that allowing appellant to retain custody of the children and returning with them to the state of Washington would be tantamount to terminating appellee’s parental rights. Intentional alienation and interference with visitation to such a degree as to affect the well-being of the children cannot be tolerated.
In cases involving child custody, a heavier burden is cast upon the court to utilize to the fullest extent all its powers of perception in evaluating the witnesses, their testimony, and the child’s best interests. Arkansas Dep’t of Human Serv. v. Couch, 38 Ark. App. 165, 832 S.W.2d 265 (1992). The appellate court has no such opportunity, and it has often been said that we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as when the interests of minor children are involved. Id. Here, appellant intentionally interfered with visitation to an extreme, even though there was no evidence to support appellant’s drug-abuse allegations, and the sexual-abuse allegations were unsubstantiated. Moreover, during the investigation, the children were subjected to medical sexual-assault examinations and were denied visitation with their father even after the investigation concluded the allegations were unsubstantiated. Such actions can hardly be said to be in the best interest of the child. Appellant’s interference with visitation was so extreme that the best interest of the children required that they be removed from the situation. Under these circumstances, we hold that the trial court’s findings were not clearly erroneous; thus, we affirm the chancellor’s decision to modify custody in this case. See Turner v. Benson, supra (affirming chancellor’s decision to change custody where evidence showed that mother was alienating the thirteen-year-old child from his father by interfering with father’s visitation schedule, and making derogatory statements about the father in the presence of their thirteen-year-old son, despite evidence that the son had a good relationship with the father and .expressed a desire to live with mother).
Affirmed.
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Wendell L. Griffen, Judge.
This appeal arose from revocation of a probation and a subsequent sentencing in Pulaski County Circuit Court. Leo Timmons argues that the trial court lacked jurisdiction to hold a revocation hearing and to sentence him because in a previous judgment and disposition order the same court had imposed a sentence, probation, and a fine, which had been put into execution. Alternatively, appellant argues that the trial court sentenced him illegally when, after granting the State’s amended probation revocation petition, it sentenced him to eight years’ imprisonment, two of which are in excess of the maximum punishment available for the crime to which appellant had pleaded guilty. We affirm on the first point and dismiss the second point because appellant’s appeal is untimely. In doing so, we urge counsel to ensure that oral sentencing terms be reflected in the judgment and commitment orders entered by trial courts.
On November 24, 1998, the State charged appellant with three felony offenses, all relating to an incident on July 12, 1998. In relevant part, the State alleged that appellant was a felon in possession of a firearm. The State also alleged that appellant had previously been convicted of a prior violent felony and that he was a habitual offender with four or more prior felony convictions.
On March 15, 1999, appellant pleaded guilty to one count of being a felon in possession of a firearm — as he now claims on appeal, at the Class D felony level. The State subsequently moved to dismiss the other two criminal charges — terroristic threatening and third-degree domestic battery — as well as the allegations that appellant had a prior, violent felony conviction and that he was a habitual offender, for the purpose of foregoing potential sentence enhancement. The trial court never explicitly stated that it accepted appellant’s “Class D” felon in possession of a firearm guilty plea, but made the following remarks to appellant at the guilty-plea proceeding: “Are you aware I can send you to the penitentiary for up to six years and fine you $10,000?” Also, the trial court concluded the proceeding with this announcement: “All right, it will be the judgment and sentence of the Court that you serve a term of four years on probation, pay a fine of $50 and court costs.” On March 26, 1999, the trial court filed a judgment and disposition order reciting that appellant had pled guilty to the Class B felony of being a felon in possession of a firearm.
On August 8, 2001, the State filed a petition against appellant requesting revocation of his probation. The State asserted that appellant violated a condition of his probation in that he had used alcohol or illegal drugs, “as evidenced by testing positive to THC on March 30, 2001, June 13, 2001, and July 12, 2001.” On August 22, 2001, the State amended its petition, alleging as an additional ground for revocation of probation that appellant committed the offense of first-degree sexual abuse on July 18, 2000.
On February 25, 2002, the trial court held a hearing concerning the amended petition to revoke probation. Appellant concedes in his brief that at that hearing the State proved he had notice of the conditions of probation and that he had violated at least one condition. At the same hearing, the State also noted to the trial court that the “offense that [appellant] was convicted of was a D felony[,] so the range would be five to ten.” The trial court revoked appellant’s probation and subsequendy sentenced him to eight years’ imprisonment. On March 1, 2002, the clerk of the court filed a judgment and commitment order against appellant. That order reflected that appellant was to serve an eight-year sentence on a Class B felony. This appeal followed that order.
Jurisdiction to Revoke Probation
For his first argument, appellant asserts that the trial court lacked jurisdiction to hold a revocation hearing and sentence him because in a previous judgment and disposition order, the same court imposed a sentence, probation, and a fine, which had been put into execution. Appellant argues that because the judgment and disposition order had been put into execution, the trial court lacked jurisdiction to modify his sentence, pursuant to McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). Appellant further argues that Act 1569 of 1999 — which supersedes the holding in McGhee concerning a trial court’s jurisdiction to modify a sentence — does not apply to his case because he committed the offense underlying this probation revocation in July 1998. Act 1569 of 1999 did not become effective until April 15, 1999. Furthermore, Act 1569 is not applied retroactively. See Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001).
However, in a recent opinion our court addressed this argument. Pierce v. State, 79 Ark. App. 263, 86 S.W.3d 1 (2002). In that case, the appellant challenged the jurisdiction of the trial court to revoke his probation and sentence him to prison terms. Id. The trial court imposed probation as well as a fine on the appellant. Id. We held that the filing of the judgment and disposition order constituted a valid execution of the appellant’s sentence. Id. We recognized that the trial court did not have jurisdiction to modify the sentence and that Act 1569 does not apply retroactively, but we held that the trial court did not lose jurisdiction to revoke Pierce’s probation. Id. We specifically rejected the argument that McGhee or other cases held that a probated sentence which includes a fine cannot be revoked. Id.
In the present case, the fact pattern and legal argument are practically identical with the Pierce case. Appellant received a probated sentence, including a fine, and the trial court subsequently revoked the probation. The trial court did not purport to modify or change the sentence in question. We hold that the trial court properly acted within the scope of its jurisdiction.
Illegal Sentence
For his second point, appellant argues that the trial court sentenced him illegally when, after granting the State’s amended probation revocation petition, it sentenced him to eight years’ imprisonment, two of which exceed the maximum punishment available for the crime to which appellant had pleaded guilty.
In response, the State correctly argues that appellant’s appeal is untimely. The timely filing of a notice of appeal is a jurisdictional requirement. See Cannon v. State, 58 Ark. App. 182, 947 S.W.2d 409 (1997). In his notice of appeal, appellant referred to the judgment and commitment order filed on March 1, 2002, that reflected his being sentenced to an eight-year sentence on a Class B felony. Appellant never appealed to this court from his March 1999 order, and thus did not comply with the thirty-day time frame within which to raise an appeal under Ark. R. App. P. — Crim. 2(a)(1) (2002). Nor did appellant ever file a post-trial motion challenging the classification of the felony in the judgment and disposition order. See J.C.S. v. State, 336 Ark. 364, 985 S.W.2d 312 (1997) (finding challenge to sentence barred when no notice of appeal or posttrial motion was made raising or preserving challenge); Brimer v. State, 301 Ark. 540, 785 S.W.2d 458 (1990) (finding that failure to appeal earlier order precluded challenging restitution amount in later revocation proceeding). We therefore hold that appellant failed to file a timely appeal to preserve the issue for our consideration.
It is correct that the question of a void or illegal sentence is an issue of subject-matter jurisdiction that cannot be waived by the parties and may be addressed for the first time on appeal. Thomas v. State, 349 Ark. 447, 79 S.W.3d 347 (2002). However, for Thomas v. State to apply, the sentence in question must have been illegal. Id. An illegal sentence is one that is illegal on its face. Delph v. State, 300 Ark. 492, 780 S.W.2d 527 (1989). In order to construe judgments, we look for the intention of the court, which is derived from the judgment and the record. Braniucci v. State, 76 Ark. App. 8, 62 S.W.3d 10 (2001). Inconsistencies between the judgments entered and the record of the proceeding are resolved in favor of the trial record. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999) (finding upon review of the trial record that a clerical error could be corrected by the trial court where the initial judgment and commitment order only reflected a prison sentence and not a fine, even though the trial record reflected a sentence of a prison term and a fine); see also Carmichael v. State, 296 Ark. 479, 757 S.W.2d 944 (1988) (holding that when there is a conflict between the trial judge’s oral pronouncement of sentence and the recitation on the face of the judgment, the oral pronouncement of sentence governs).
During the proceeding in the present case, the trial judge informed appellant that he could be sentenced to up to six years in prison. The six-year maximum applies to the Class D felony level of felon in possession of a firearm, pursuant to Ark. Code Ann. § 5-4-401(a)(5) (Repl. 1997). Appellant argues that had the trial judge intended to sentence appellant to a Class B felony level of the same offense, the judge would have told him that he could sentence him for up to twenty years, pursuant to Ark. Code Ann. § 5-4-401 (a)(3) (Repl. 1997).
Specifically, however, for a conviction of felon in possession of a firearm, two elements must be proved: possession or ownership of a firearm and prior conviction of a felony. Ferrell v. State, 305 Ark. 511, 810 S.W.2d 29 (1991). To prove prior conviction of a felony, the State merely must show a docket sheet as evidence of appellant’s prior conviction. See Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992). A defendant is guilty of a Class B felony if he has been convicted of a violent felony. Ark. Code Ann. § 5-73-103(c)(l) (Repl. 1997). A defendant is guilty of a Class D felony only if the prior felony was for a nonviolent offense and the possession of the firearm did not involve the commission of another crime. Ark. Code Ann. § 5-73-103(c)(2) (Repl. 1997).
In the present case, the State presented to the trial court that appellant’s prior felony conviction was for aggravated robbery, thus falling under the scope of a violent offense, and that appellant’s possession of the firearm involved the commission of another crime, namely third-degree domestic battery. As such, the State ostensibly met its burden of .proof for a conviction of felon in possession of a firearm, Class B level. Because appellant’s conviction on the Class B level is not illegal on its face, we hold that the trial court did not impose an illegal sentence upon him when resentencing him after his probation revocation — notwith standing any possible confusion of the trial court’s intent concerning which felony level of felon in possession of a firearm applies. Therefore, Thomas v. State, supra, does not apply to appellant’s situation. The appeal is untimely as to this point.
Oddly, counsel for defendants in criminal cases often do not receive judgment orders, unlike in civil cases where judgments are routinely sent, a few days after they are entered. The decision in this case demonstrates why it is important for defense counsel to obtain a copy of the judgment and commitment orders affecting their clients and verify that the orders reflect the sentence pronounced by the trial court.
Affirmed.
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Larry D. Vaught, Judge.
Appellant argues that appel-lee, the personal representative of the decedent’s estate, failed to prove that the decedent’s last will and testament was properly executed. Specifically, appellant contends that the trial court’s ruling that the will was properly admitted to probate, in spite of the fact that the attestation clause was not notarized, amounts to reversible error. Additionally, appellant requests that on remand this court apply the “rule of the case” and disallow any additional evidence concerning the genuineness of the attesting witnesses’ signatures. We affirm.
On November 17, 1997, attorney Robert Boyer met with the decedent, Irene Lessing, regarding the execution of a new will. On November 20, 1997, Mr. Boyer returned to the hospital (where Ms. Lessing was a patient) and completed the execution of the will. Two nurses at the hospital; Susan Herrick and Beth Watson (now Main), witnessed the will and signed the attestation clause. Ms. Lessing died on November 30, 1997, and her will was admitted to probate on December 3, 1997, upon the filing of the petition for probate of the will and appointment of a personal representative.
On March 6, 1998, appellant, Sterling Walburn (the decedent’s nephew), filed his petition to set aside the will, alleging legal incapacity, undue influence, and procurement of the will. On November 16, 1999, appellant filed an amended petition essentially alleging the same three grounds for setting aside the will. The case was heard on March 20, 2001. During the trial, appellant argued (for the first time) that the will in question was improperly admitted to probate because it did not contain a proof of will that was notarized. At trial, appellee put on proof that the will was properly witnessed. In its order, dated April 2, 2001, the trial court found that:
[T]he order admitting the [wjill to probate dated December 30, 1997, is conclusive on the issue that the [wjill was properly signed and witnessed in accordance with [the] law; and furthermore, the evidence was presented from one of the attesting witnesses stating -that she signed the [wjill in the presence of the other subscribing witnesses and in the presence of the Testator, Irene Lessing.
Appellant dismissed his claim of lack of legal capacity, and the court directed verdicts in favor of appellee on the claims of undue influence and procurement. On April 9, 2001, appellant filed a timely notice of appeal. On appeal, appellant challenges the trial court’s finding that the will was properly witnessed.
As a preliminary matter, appellee suggests that appellant’s failure to raise the issue of proper execution of the will until the day of trial bars our review of the issue on appeal. We disagree. The trial court specifically addressed the valid admission of the will to probate in its final order, and appellee waived any objection to the propriety of the issue being heard when he put on testimony at trial on the issue. Therefore, the question is properly before our court.
We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 259 (2001). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Id.
In his first two points on appeal, appellant argues that Ms. Lessing’s will should not have been admitted to probate because appellee failed to prove that the will had been properly executed. Specifically, appellant argues that appellee failed to prove the genuineness of the attesting witnesses’ signatures. His primary evidence to support this claim is that the attestation clause submitted to probate bearing the signatures of the two nurses who witnessed the will was not notarized.
Arkansas Code Annotated section 28-25-103 (1987) outlines the procedure to be followed when executing a will. The statute provides:
(a) The execution of a will, other than holographic, must be by the signature of the testator and of at least two (2) witnesses.
(b) The testator shall declare to the attesting witnesses that the instrument is his will and either:
(1) Himself sign; or
(2) Acknowledge his signature already made; or
(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; or
(4) At his discretion and in his presence have someone else sign his name for him. The person so signing shall write his own name and state that he signed the testator’s name at the request of the testator; and
(5) In any of the above cases, the signature must be at the end of the instrument and the act must be done in the presence of two (2) or more attesting witnesses.
(c) The attesting witnesses must sign at the request and in the presence of the testator.
Arkansas Code Annotated section 28-40-117 (1987) explains the procedure whereby a party proves the validity of an attested will. The statute in relevant part states:
(a) An attested will shall be proved as follows:
(1) By the testimony of at least two (2) attesting witnesses, if living at known addresses within the continental United States and capable of testifying; or
(2) If only one (1) or neither of the attesting witnesses is living at a known address within the continental United States and capable of testifying, or if, after the exercise of reasonable diligence, the proponent of the will is unable to procure the testimony of two (2) attesting witnesses, in either event the will may be established by the testimony of at least two (2) credible disinterested witnesses. The witnesses shall prove the handwriting of the testator and such other facts and circumstances, including the handwriting of the attesting witnesses whose testimony is not available, as would be sufficient to prove a controverted issue in equity, together with the testimony of any attesting witness whose testimony is procurable with the exercise of due diligence.
* * *
(d) The provisions of this section as to the testimony of subscribing witnesses shall not exclude the production of other evidence at the hearing on the petition for probate, and the due execution of the will may be proved by such other evidence.
In reaching our conclusion that Mrs. Lessing’s will was properly witnessed in accordance with the statutory scheme set out above, we rely heavily on two points of trial testimony. First, Mrs. Les-sing’s attorney testified:
[tjhere were two nurses there to witness the will. So I presented it to her and she read it. My secretary Clara Holbrook again was there to notarize the will, the attestation, proof of will, and after she read it I asked her if that is what she wanted to do. She said that it was in the presence of the two nurses and in my presence and in the presence of Clara Holbrook, and she executed the will.
Second, one of the attesting witnesses (Beth Main) was asked “did you see Mrs. Lessing at the St. Mary’s hospital in Rogers?” Ms. Main replied, “yes, I did.” She was then asked “did you have occasion to witness her signature on a will?” She again replied, “yes, I did.” Additionally, Ms. Main testified that she witnessed the other attesting witness, Susan Herrick, sign the will.
Arkansas Code Annotated section 28-40-117(a) (2) provides an alternative means of proving a will, if the proponent of a will is unable to procure the testimony of the two original attesting witnesses. The will may be established by the testimony of at least two credible disinterested witnesses. In this case, one of the attesting witnesses (Beth Main) and the attorney who prepared Mrs. Lessing’s will testified that they witnessed the execution of the will. The testimony of the attorney who drafted a will, but who was not named as a beneficiary in the will, can satisfy the “credible disinterested witness” testimony requirement of section 28-40-117(a)(2). Upton v. Upton, 26 Ark. App. 78, 759 S.W.2d 811 (1988).
In Upton, supra, one of the witnesses to the decedent’s will was unavailable to testify at trial. The attorney who prepared the will testified by deposition upon written interrogatories that he prepared the will for the decedent, that he reviewed the contents of the will with the decedent before its execution, that he was satisfied that the decedent understood its provisions, and that those provisions represented the decedent’s wishes. Id. We concluded that, when a will is presented that appears to have been properly executed, and the attestation is established by proof of the handwriting of the witnesses, it will be presumed, in the absence of evidence to the contrary, that the will was executed in compliance with the requirements of the statute. Id.
Here, the evidence is ample to support the trial court’s ruling that the will was properly executed. It is clear from the evidence that Mrs. Lessing wished to leave a will disposing of her property in a way that is contrary to intestate succession. She signed the will in the presence of four disinterested parties (her attorney, her attorney’s secretary, and two nurses). Two of the four witnesses testified at trial.
The decision of the trial court is affirmed, and, therefore, we need not address appellant’s third point of appeal requesting a specific instruction from our court regarding the application of the rule-of-the-case doctrine on remand.
Affirmed.
Griffen and Baker, JJ., agree.
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Karen R. Baker, Judge.
A Craighead County jury convicted appellant Robert Lee Mitchem of attempted rape and kidnapping and sentenced him to a total of twenty years in the Arkansas Department of Correction. Appellant challenges his convictions arguing that the trial court erred in fading to grant his motion for directed verdict on the charge of attempted rape because the evidence was insufficient to prove that appellant took a substantial step toward the commission of the offense of rape. He also argues that the trial court erred in failing to grant a directed verdict on the charge of kidnapping because the evidence was insufficient to show that appellant restrained the liberty of the alleged victim. We find no error and affirm.
Appellant’s argument relies heavily on disputed testimony. Therefore, we first set out the facts of this case that are not in dispute. The victim in this case, H.G., was thirteen (13) years old. On the afternoon of February 15, 2004, appellant, a fifty-one (51) year-old male, and H.G. had a telephone conversation, and the subject of the phone conversation was whether H.G. could go to the movies with appellant’s daughter. H.G.' obtained her mother’s permission to go the movies. Appellant called H.G.’s home to obtain directions to the home. Shortly after receiving directions, appellant picked up H.G. from her home in his car. When H.G. entered appellant’s vehicle, she was the only passenger in the vehicle. Appellant explained his daughter’s absence to H.G. by stating that his daughter was already at the movies and that he would take H.G. there; however, appellant did not take H.G. to the movies. Instead, appellant took H.G. to the Regency Inn in Jonesboro where he procured a motel room. Appellant escorted H.G. to the motel room and left her. At 9:35 p.m., Officer Landrum of the Jonesboro police department received a call from dispatch reporting a rape in progress at the Regency Inn. Officer Landrum went to the motel room and found H.G. crying and upset. Appellant was not in the motel room at that time. The police attempted to locate appellant and spoke to his daughter at appellant’s home. After the police left appellant’s home, appellant’s daughter called appellant on his cell phone to tell him that the police were looking for him. Appellant called the police from the motel after his daughter’s call, and officers proceeded to the motel where they arrested appellant.
On appeal and at trial, appellant emphasized the differences in the testimony regarding who initiated the call concerning the movies and the reason H.G. was at the hotel room. Appellant asserted that the State failed to demonstrate that H.G. was restrained in any way. He argued that she walked into the room without coercion, that appellant left the room about 7:00 p.m., and that he did not return until after the police had been summoned. During the time he was gone, the door was not bolted, a working telephone was in the room, and H.G. was free to leave. Appellant also argued that the evidence regarding the attempted rape charge was insufficient in that there was not a substantial step toward the commission of the crime of rape. He asserted that he did not touch H.G. sexually, he did not restrain her liberty, and otherwise took no action to engage in sexual intercourse or deviate sexual activity.
H.G. testified at trial that appellant explained to her that, before going to the movie, he first had to visit someone at the motel room. H.G. watched appellant procure the key and went to the room with appellant; however, no one was in the room. Once in the room, appellant told H.G. that this was where she would be staying and asked her if she had “ever done crystal meth.” He then inquired if H.G. had a boyfriend and if she did, to ask him to come over. When she said she did not have a boyfriend, appellant stated that he intended to engage in sexual contact with H.G. He also stated that he and his girlfriend had engaged in sex with another person earlier that day and he wanted H.G. to engage in such acts with them. He gave his watch to H.G. when he left saying that he would return with his girlfriend. H.G. said that she remained in the motel room because she was frightened by what the appellant might do if she tried to leave. She also testified that there were people outside the motel room and that she did not know if they were with appellant or not. Instead of leaving, she used the phone in the room to call a friend and told her what happened. As a result, her friend’s mother called the police.
Officer Landrum testified that once he found the room where H.G. was located, he knocked on the door. H.G. was very upset and crying and only opened the door to the police after multiple requests and assurances that Officer Landrum and his fellow officer were in fact police. Officer Landrum described her as “obviously afraid,” “very distraught,” and “upset.” Her tone of voice was frantic and her speech patterns were rapid. She told the officers that appellant had brought her to the motel room, that he wanted her to have sex with him and his girlfriend, and that he wanted her to use “meth.” She appeared frantic and wanted to leave immediately, because she feared that appellant would return.
Officer Landrum also described his contact with appellant following the attempts to locate him. Officer Landrum said that appellant contacted the police and asked what was going on. The officer explained that appellant was a suspect in a case involving the abduction of a child and he requested that appellant come to the station. The appellant said that he would come to the station “in the morning” and that he was on his way to Paragould. Officer Landrum said that, while talking to appellant, he heard a train whistle over the telephone and dispatched a patrol unit back to the motel, which was near the railroad tracks. Police officers subsequently located appellant at the motel. Appellant had returned to the motel with his girlfriend who opened the door to the officers, who then arrested appellant. Appellant told Officer Landrum that the reason he had left H.G. at the hotel was that he did not have room for her and his girlfriend in the car. Officer Landrum described the car as a four door and capable of carrying more than one passenger.
Appellant’s first witness was his daughter, A.M., who testified that H.G. had told her that she had used “meth” and “smoked pot” prior to the incident with her father. She also testified that she was unaware that her father or her father’s live-in girlfriend, Laura Eaton, had invited H.G. to the movie with her and another friend, and that her aunt had picked her up from the movies and returned her home. Neither her father nor his girlfriend were at home when she returned after the movie.
Appellant claimed that he had rented the motel room for his girlfriend’s aunt. According to him, the aunt had been staying in his home, but wanted to have her boyfriend spend the night. Appellant did not believe that an overnight guest was a good example for his daughter, so he had procured a motel room earlier in the day. He further asserted, contrary to H.G., that H.G. initiated the call to his house, wanting to go to the movie with his daughter, and he merely returned her call to get directions to the home. He testified that once H.G. was in the car with him, that she refused to go to the movies, and, instead of taking her back home, he took her to the motel. In support of his argument, he emphasizes that he left her at the motel a sufficient amount of time to allow for the viewing of a movie and travel.
Appellant also called as a witness a life-long friend who testified that she was supposed to meet appellant later that evening at another establishment. She was ahead of schedule driving home when she happened to see appellant and H.G. going into the motel room. She drove into the parking lot, gained appellant’s attention, and observed appellant talking with H.G. in the doorway before coming to talk with her. She and appellant then left and conducted their business, which consisted of appellant loaning the witness money. The State argues that this chance encounter thwarted appellant’s original plan.
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). When a defendant challenges the sufficiency of the evidence, we review the evidence in the light most favorable to the State, considering only the evidence that supports the guilty verdict, and will affirm the conviction if it is supported by substantial evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Evidence is substantial, whether direct or circumstantial, if it is of sufficient force and character that, with reasonable certainty, it will compel a conclusion one way or the other and pass beyond mere speculation or conjecture. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). We defer to the jury’s determination on the matter of witness credibility. Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). Any inconsistencies in the witnesses’ testimony are for the jury to resolve. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998).
We first consider appellant’s argument that the trial court erred by not granting his motion for a directed verdict on the charge of criminal attempt to commit rape because there was not sufficient evidence that he attempted to engage in sexual intercourse or deviate sexual activity with H.G. A person commits rape if he engages in sexual intercourse or deviate sexual activity with a person who is less than fourteen years of age. Ark. Code Ann. § 5-14-103(3)(A) (Repl. 2006). To prove attempted rape, it must be shown that the defendant purposely engaged in conduct that constituted a substantial step in a course of conduct intended to culminate in the commission of rape. Ark. Code Ann. § 5-3-201 (Repl. 2006); see also Rains v. State, 329 Ark. 607, 953 S.W.2d 48 (1997). To be considered a substantial step toward the commission of a rape, a defendant’s overt acts must be beyond mere preparation, and “must reach far enough toward accomplishment, toward the desired result, to amount to the commencement of consummation.” 75 C.J.S. Rape § 34 (2002). That is, conduct is not a substantial step unless it is strongly corroborative of a person’s criminal purpose. Ark. Code Ann. § 5-3-201 (c).
While appellant’s version of the events are in stark contradiction to the victim’s description, the jury was not required to believe appellant’s story that it was simply “foolish on [his] part not to just take her back home.” See Palmer, supra. The testimony that he initiated a call to the victim, picked her up under false pretenses, isolated her in a motel room, told her that he intended to engage in sexual intercourse with her and that he also was bringing back his girlfriend to engage in sexual acts with the victim, and then returning to the motel room with his girlfriend goes beyond mere planning and preparation. Appellant had procured the victim. This evidence supports the jury determination that appellant had taken a substantial step toward engaging in sexual intercourse with a person under the age of fourteen.
Appellant’s second argument challenges the sufficiency of the evidence regarding restraint. Arkansas Code Annotated section 5-11-102 (Repl. 2006) provides, in pertinent part:
A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person’s liberty with the purpose of:
(3) Facilitating the commission of any felony or flight after the felony;
(4) Inflicting physical injury upon the other person;
(5) Engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other person;
(6) Terrorizing the other person or another person,
However, to support a separate charge for kidnapping in a case where a rape or attempted rape has been alleged also, it must be shown that the defendant employed some greater restraint on the victim than that normally incidental to rape. Lee v. State, 326 Ark. 529, 932 S.W.2d 756 (1996); Wofford v. State, 44 Ark. App. 94, 867 S.W.2d 181 (1993). A person acts purposely with respect to his conduct or a result thereof “when it is his conscious object to engage in conduct of that nature or to cause such a result.” Ark. Code Ann. § 5-2-202(1) (Repl. 2006). In Watson v. State, 358 Ark. 212, 188 S.W.3d 921 (2004), our supreme court held:
A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Because intent cannot be proven by direct evidence, the jurors are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Moreover, because of the obvious difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts.
Watson, 358 Ark. at 219-20, 188 S.W.3d at 925 (citations omitted).
Appellant submits that the facts in this case fail to show that H.G. was restrained so as to interfere with her liberty. He urges that the facts demonstrate that H.G. willingly entered the room, was not restrained, could have left the room at any time she chose, and had access to a working telephone. He also concludes that his staying away from the motel room indicates that he had no intent to restrain her liberty. He distinguishes his case from Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003), where a defendant traveled from another state to meet a fictional eleven-year-old child, who actually was an undercover police officer as a part of an internet sting operation, for the purpose of engaging in sexual relations. Appellant argues that the evidence in Kirwan left no other reasonable explanation for the defendant’s conduct other than his intent to engage in sexual relations with the eleven-year-old child.
We agree that appellant’s case is distinguishable from Kirwan; however, it was within the jury’s province to evaluate appellant’s testimony and the testimony of the victim to determine the facts. The jury was not required to accept appellant’s version even if it found the version to be plausible or reasonable. The jury is not required to believe any witness’s testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). Indeed, after a jury has given credence to a witness’s testimony, this court does not disregard it unless it was “so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon.” Id. One eyewitness’s testimony, moreover, is sufficient to sustain a conviction, and his testimony is not “clearly unbelievable” simply because it is uncorroborated or because it has been impeached. Id.
While appellant asserts that there was no evidence that he intended to restrain H.G., sufficient evidence supports the conclusion that appellant used deception to restrain the victim. Our definition of “restraint without consent” includes restraint by deception. Ark. Code Ann. § 5-11-101 (A) (Repl. 2006). In the case of a person who is under the age of fourteen (14) years, the definition includes “without the consent of a parent. ...” Id. The mother of H.G. relied upon the representation that appellant was taking H.G. to the movies with his daughter when she gave permission for H.G. to leave her home with appellant. H.G.’s mother did not consent to appellant escorting her daughter to a motel room at the Regency Inn. When H.G. realized appellant’s daughter was not in the car, appellant assured H.G. that his daughter was waiting for H.G. at the movies, and he would take H.G. to meet her. Appellant then escorted H.G. to the motel room under the guise of meeting someone briefly before meeting his daughter at the movies. Given the testimony, substantial evidence exists to support appellant’s convictions; accordingly, we affirm.
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John B. Robbins, Judge.
This appeal involves the timeliness of an appeal from Hot Springs District Court to Garland County Circuit Court. The circuit court dismissed the appeal of appellants Robert and Misste Lewis for lack of jurisdiction, and the Lewises now appeal the order of dismissal to this court. We affirm.
This case began when the Lewises filed a complaint in district court against appellee Lloyd Robertson d/b/a Lloyd’s Used Cars, and the appellee filed a counterclaim. A hearing on the complaint and counterclaim was held on April 22, 2005. On June 23, 2005, the district court made a docket entry dismissing appellants’ claim and awarding a judgment of $3331.85 in favor of the appellee. On July 6, 2005, the district court filed a judgment with the clerk, which was consistent with the prior docket entry. The appellants received a copy of the July 6, 2005, judgment on the day after it was filed.
On August 2, 2005, the Lewises filed an appeal to the circuit court. Three days later, the appellee filed a motion to dismiss the appeal because it was not timely filed. The Lewises responded to the motion on September 13, 2005, and on the same day the circuit court held a hearing on the motion. The trial court granted the appellee’s motion to dismiss, and the Lewises now assert that this was error.
We hold that the circuit court properly dismissed appellants’ appeal. Rule 8 of the Arkansas District Court Rules prescribes the method for entering judgments in district court, and provides in pertinent part:
(a) By Default. When a defendant has failed to file an answer or reply within the time specified by Rule 6(b) of these rules, a default judgment may be rendered against him.
(b) Upon the Merits. Where the court has decided the case, it shall enter judgment in favor of the prevailing party for the relief to which the party is deemed entitled.
(c) Docket Entry. The court shall timely enter in the docket the date and amount of the judgment, whether rendered by default or upon the merits.
Rule 9(a) provides:
(a) TimeforTakingAppeal. All appeals in civil cases from district courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within 30 days from the date of the entry of judgment. The 30-day period is not extended by a motion for judgment notwithstanding the verdict, a motion for new trial, a motion to amend the court’s findings of fact or to make additional findings, or any other motion to vacate, alter or amend the judgment.
The foregoing rules reflect that a district court enters any judgment it renders by entering, in a timely manner, the date and amount of the judgment in the court’s docket. See West Apartments, Inc. v. Booth, 297 Ark. 247, 760 S.W.2d 861 (1988). In the instant case, the district court entered the judgment against the Lewises on the court’s docket on June 23, 2005, and more than thirty days elapsed before the Lewises filed their appeal on August 2, 2005. That being so, we conclude that the trial court was correct in finding that it had no jurisdiction because appellants’ attempted appeal was untimely. See id. The thirty-day requirement is mandatory and jurisdictional, and the circuit court has no authority to accept untimely appeals. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001).
In their brief, the Lewises argue that Rule 8(c) violates the Fourteenth Amendment and is thus unconstitutional. They contend that the wording of the rule is vague in that it requires only a “timely” docket entry, and further complain that under the rule a party is void of any notice of a docket entry until they receive a judgment filed by the district court. Appellants contend that, because they were not given notice of the adverse judgment until July 7, 2005, and yet the time for filing an appeal began to run on June 23, 2005, the due process mandate of the Fourteenth Amendment was not satisfied. Appellants argue that because Rule 8(c) does not comport with the Due Process Clause, they have been wrongfully denied their right to a jury trial based on the untimeliness of their appeal.
We need not address the merits of appellant’s constitutional argument because it was not raised to the trial court. In appellants’ written response to the motion to dismiss they asserted only that “the appeal herein was timely filed with the Circuit Clerk pursuant to Rule 9 of the District Court Rules.” At the hearing on the motion, the appellants’ counsel argued:
Your Honor, I filed my notice of appeal within thirty days that the judgment was filed in district court. That was the first time I had notice the judgment was entered against my client. I know that it was entered pursuant to the docket in district court, but I would argue that the case was originally tried back in — I believe it was April, April the 22nd, and it was taken under advisement for a number of months.
Your Honor, other than checking — calling the district court clerk on a daily basis, you know, I would have no notice that a judgment was even entered against my client until I received the order from the district judge [.]
The trial court responded:
I agree it’s an imperfect system, and quite honestly, it really isn’t fair or doesn’t seem fair. The problem is it’s jurisdictional for me. If the Rule isn’t met, then I have no basis on winch to even rule other than to dismiss the appeal.
While the appellants did complain below about their lack of notice of the docket entry, they did not allege any constitutional violation, and the appellants now challenge the constitutionality of Rule 8(c) for the first time on appeal.
Our supreme court has repeatedly held that appellants are precluded from raising arguments on appeal that were not first brought to the attention of the trial court. See, e.g., Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Issues raised for the first time on appeal will not be considered because the trial court never had an opportunity to rule on them. Id. A party cannot change the grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. Vanesch v. State, 343 Ark. 381, 37 S.W.3d 196 (2001). On appellate review, issues of even constitutional dimension are waived if not presented to the trial court and a ruling obtained. See Warnock v. Warnock, 336 Ark. 506, 988 S.W.2d 7 (1999). The argument being made in this appeal was not raised and decided below, and now comes too late.
Affirmed.
Griffen, J., agrees.
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Larry D. Vaught, Judge.
This case involves a child-custody dispute between parents who shared legal and physical joint custody of their three children. Appellant Carmen Gray appeals from an order of the Pulaski County Circuit Court specifically finding that there was no material change in circumstances to require a change of custody. The court decided to continue joint-legal custody in both parents but changed physical custody to appellee Karl Gray during the school year. On appeal, Carmen argues that the trial court erred in finding that there was no material change in circumstances to warrant a change of custody. We agree and reverse and remand.
Following their divorce in 2002, Carmen and Karl Gray were awarded joint custody of their three children. They shared a week on/ week off visitation schedule that allowed the children to remain in the same school district and daycare facility. In September 2004, Carmen moved to Missouri to live with her parents due to financial problems, and the children stayed with Karl.
Complications arose because of Carmen’s relocation. Although Carmen continued to see her children, her time with them was reduced from the previous arrangement due to the fact that the children were in school in Arkansas, and Carmen now lived in another state. When she was able to see the children, Carmen drove eight hours round-trip to pick them up and return them. She testified that, following the move, she was no longer allowed to participate in decisions regarding the children and that Karl made important changes without consulting her, including decisions about the children’s extracurricular activities and daycare.
In December 2004, Karl filed a motion seeking sole-legal custody based primarily on Carmen’s relocation to Missouri. She responded with a counterclaim asking for sole-legal custody. Both parties alleged that Carmen’s move constituted a material change in circumstances that required a change in custody. On August 8, 2005, the trial court held a hearing on the motions and determined that neither party had shown a material change in circumstances to warrant a change of joint-legal custody to sole-legal custody. However, the trial court amended the initial custody arrangement to allow the parties to continue joint-legal custody but to designate Karl as primary custodian for purposes of school attendance, stating that “true joint physical custody is not possible given the logistics” of Carmen’s move.
Carmen now appeals from the trial court’s order and contends that the court clearly erred in finding that no material change in circumstances had occurred and requesting that we award her full custody of her three children.
In child custody cases, we review the evidence de novo, but we will not reverse the findings of the court unless it is shown that they are clearly contrary to the preponderance of the evidence. Thompson v. Thompson, 63 Ark. App. 89, 974 S.W.2d 494 (1998). We also give special deference to the superior position of the trial court to evaluate and judge the credibility of the witnesses in child custody cases. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999). We have often stated that we know of no cases in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as those involving children. Mason v. Mason, 82 Ark. App. 133, 111 S.W.3d 855 (2003). A finding is clearly against the preponderance of the evidence, when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been made. Mason, 82 Ark. App. at 140, 111 S.W.3d at 859.
Arkansas law is well settled that a judicial award of custody should not be modified unless it is shown that there are changed conditions that demonstrate that a modification of the decree would be in the best interests of the children. Campbell v. Campbell, 336 Ark. 379, 985 S.W.2d 724 (1999). Although the trial court retains continuing power over the matter of child custody after the initial award, the original decree is a final adjudication of the proper person to have care and custody of the child, and before that order can be changed, there must be proof of material facts that were unknown to the court at that time, or proof that the conditions have so materially changed as to warrant modification and that the best interest of the child requires it. Word v. Remick, 75 Ark. App. 390, 58 S.W.3d 422 (2001).
Joint custody or equally divided custody of minor children is not favored in Arkansas unless circumstances clearly warrant such action. Thompson, 63 Ark. App. at 92, 974 S.W.2d at 496. The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child’s welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is reversible error where cooperation between the parents is lacking. Remick, 75 Ark. App. at 395-96, 58 S.W.3d at 426.
In Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002), divorced parents of two children shared joint-legal and joint-physical custody of their two children alternating physical custody on a month-to-month basis. After the mother remarried, she petitioned the court for sole custody of the children so she could move a couple of hours away to take a new job. The father counterclaimed seeking custody of both children. The trial court found that a material change in circumstances had occurred due to the mother’s remarriage and move, and it granted sole custody of the children to the father and gave the mother standard visitation. Our supreme court held that the trial court had not erred and stated that “[w]e have no doubt that a material change in circumstances has occurred.” The court made it clear that joint-custody-relocation cases are different from custodial-parent-relocation cases, stating:
Amanda’s first contention on appeal is that there was no material change in circumstances from the time of the divorce decree sufficient to set aside joint custody in the parents and to place sole custody in Tim. She argues, as a specific matter, that her relocation, standing alone, cannot constitute a material change in circumstances. For authority, she cites the court to Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996). See also Gerot v. Gerot, 76 Ark. App. 138, 145-46, 61 S.W.3d 890, 896 (2001) (“[RJelocating in order to obtain better employment itself does not constitute a material change in circumstances.”); Hollinger v. Hollinger, 65 Ark. App. 110, 986 S.W.2d 105 (1999) (holding that the combined effect of the mother’s move, the desires of the children to stay in their original location, and the long passage of time between the divorce decree and the modification, amounted to a material change in circumstances.).
The problem with Amanda’s case authority is that the Jones case did not involve joint custody in the parents where physical custody alternated on a month-to-month basis. Indeed, the Jones-Gerot-Hollinger line of cases all involved mothers with sole custody of a child or children who sought to relocate. That is not what we have in the case at hand. Here, both parents had custody, and each parent petitioned for sole custody, 'with Amanda being the parent who wished to relocate.
Lewellyn, 351 Ark. at 356, 93 S.W.3d at 686-87. The court concluded that because of the remarriage and relocation, the parties’ ability to cooperate and share actual physical custody of the children had eroded to the point that the trial court was correct in finding a material change in circumstances.
In the present case, the parties shared a type of joint custody — true shared legal and physical custody — that was impossible to maintain once Carmen moved several hundred miles away. In addition, Carmen complained that Karl failed to include her in decisions relating to the children, a requirement of their prior custody order. Our case law makes it clear that a joint-custody arrangement requires cooperation by both parents, see Remick, 75 Ark. App. at 395-96, 58 S.W.3d at 426, and that an award of joint custody where cooperation is lacking is reversible error. Moreover, both parents agreed that Carmen’s relocation materially altered their ability to share joint custody of the children.
This case involved a true joint-custody arrangement, where each parent shared legal and physical custody of the children equally. Once one parent relocated outside of the general area and the parents could no longer cooperate in jointly raising the children, it was clear error for the trial court to find that a material change in circumstances did not exist requiring a change of custody. We, therefore, reverse and remand this case to the trial court to award custody based on its determination of the best interests of the children.
Reversed and remanded.
Hart and Neal, JJ., agree.
For this same reason, Hollandsworth v. Knyzewski, 353 Ark. 470, 109 S.W.3d 653 (2003), does not apply to this case. In Hollandsworth, one parent had sole-physical custody, and the supreme court held that the custodial parent’s move could not in and of itself establish a material change in circumstances. Id. at 486-87, 109 S.W.3d at 664. | [
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John E. Jennings, Judge.
On September 6, 2000, Ricco Greer took his mother’s car from their home in North Little Rock without her permission. She called the police the next morning. They responded promptly and shortly found Greer and the car. Greer was charged with felony theft and, after a bench trial, was found guilty, He was sentenced as an habitual offender to a term of seven years’ imprisonment.
On appeal, Greer’s sole contention is that the court’s decision is not supported by substantial evidence. He asks us to reduce his conviction to unauthorized use of a motor vehicle, a class A misdemeanor under Ark. Code Ann. § 5-36-108 (Repl. 1997). We agree that the decision of the circuit court should be affirmed as modified.
At trial three witnesses testified for the State; the defense called no witnesses. Appellant’s mother, Delores Adkins, testified that she was at home on September 6, 2000, with another son, who was disabled. She went into the bathroom, having left the keys to her Oldsmobile on a table. When she came out, the keys to the car and the car itself were gone. She testified that she knew Greer had taken it because “he is the only one [who was] messing with the car.” The next day she phoned the police to report her car had been stolen.
Mrs. Adkins testified that her son, Ricco Greer, lived with her at her house; that she let him drive her car “every now and then”; that he did not have permission to drive her car that day; that he knew he could not use that particular car because her daughter used it to go to work; and that she has a “habit” of calling the police if he does not return her car “on time.” She said, “He just likes to go joy-ride.”
North Little Rock police officer John Gravett testified that Mrs. Adkins told him her son had stolen her car. He immediately went to the Eastgate housing area and found the car. Mrs. Adkins then arrived and told Gravett she had seen Greer running toward their North Little Rock home. He was quickly apprehended.
Bill Elizandro, another officer, testified that he read Greer his Miranda rights. Officer Gravett then testified that Greer admitted to having taken the car and driven it.
Arkansas Code Annotated section 5-36-103(a)(l) provides:
(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;
The word “deprive” is defined at Ark. Code Ann. § 5-36-101 (4) (A) as “to withhold property or to cause it to be withheld either permanently or under circumstances such that a major part of its economic value, use, or benefit is appropriated to the actor or lost to the owner.”
Arkansas Code Annotated § 5-36-108 provides that “a person commits unauthorized use of a vehicle if he knowingly takes, operates, or exercises control over another person’s vehicle without consent of the owner.” Unauthorized use is a class A misdemeanor. Historically, the “unauthorized use” statutes were passed to deal with the problem of “joy-riding,” a phenomenon that apparently arose in the 1940’s. See In re Lakeysha P., 106 Md. App. 401, 665 A.2d 264 (1995). See also Sullivant v. Pennsylvania Fire Ins. Co., 223 Ark. 721, 268 S.W.2d 372 (1954).
When the sufficiency of the evidence is challenged in a criminal case, we affirm if the verdict of the court or jury is supported by substantial evidence. The test is whether the evidence is “of sufficient force and character to compel reasonable minds to reach a conclusion beyond suspicion and conjecture.” Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999).
We defer to the trier of fact, here the circuit court, on questions of fact and, more specifically, on issues of the credibility of the witnesses. Even if the evidence is undisputed, as it is here, we defer to the trial court if different inferences might reasonably be drawn from the testimony of the witnesses. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996); Lewis v. State, 7 Ark. App. 38, 644 S.W.2d 303 (1982); Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979).
Appellant’s argument is that the evidence adduced at trial was insufficient to show that he intended to “deprive” his mother of her car within the meaning of the statute. Arkansas Code Annotated section 5-36-101(4)(A) states that “deprive” means “to withhold . . . permanently.” Her testimony alone rebuts the State’s contention that the defendant committed felony theft.
We acknowledge the decisions in Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989) and Hickson v. State, 50 Ark. App. 185, 901 S.W.2d 868 (1995), both saying that the theft statute “makes no exceptions for temporary deprivation.” We can only assume that in neither case did the defendant argue the definition of “deprive” as set forth in Ark. Code Ann. § 5-36-101(4)(A). We hold that on these facts the trial court’s judgment was not supported by substantial evidence.
The only remaining question is the proper disposition of the appeal:
[W]here the evidence presented is insufficient to sustain a conviction for a certain crime, but where there is sufficient evidence to sustain a conviction for a lesser included offense of that crime, this court may “reduce the punishment to the maximum for the lesser offense, reduce it to the minimum for the lesser offense, fix it ... at some intermediate point, remand the case to the trial court of the assessment of the penalty, or grant a new trial either absolutely or conditionally.
Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994).
We agree with appellant that his conviction should be reduced to unauthorized use of a motor vehicle, a class A misdemeanor, and set his punishment at one year in the Pulaski County Jail.
Affirmed as modified.
Hart and Neal, JJ., agree. | [
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John B. Robbins, Judge.
Appellant, Dr. Josephine C. Bell, appeals from an order dismissing her complaint against ap- pellee Jefferson Hospital Association, Inc. (JHA). The trial court dismissed Dr. Bell’s claim on the basis that it was barred by the three-year statute of limitations as set forth in Ark. Code Ann. § 16-56-105 (Repl. 2005). On appeal, Dr. Bell argues that the trial court erred by not allowing her amended complaint to relate back to the filing date of her original complaint, which was filed within the limitations period but mistakenly named the wrong party as the defendant. We agree, and we reverse and remand.
In Dr. Bell’s original complaint filed on January 27, 2005, she brought suit against Jefferson Regional Medical Center Development, Inc. (JRMCD). The complaint alleged that, while visiting her husband at Jefferson Regional Medical Center on March 10, 2002, Dr. Bell slipped and fell on a recently waxed floor, causing a fracture to her shoulder. The complaint alleged that there were no warning signs to caution guests about the hazards of the floor, and sought damages for negligence.
On February 18, 2005, Robert P. Atkinson, agent for service of process for JRMCD, was served with the summons and complaint. On March 4, 2005, JRMCD filed its answer, and also submitted interrogatories and requests for production of documents. On March 30, 2005, JRMCD filed a motion to dismiss, asserting that it was not a proper party to the action because it does not and has not at any time owned or operated Jefferson Regional Medical Center as alleged in Dr. Bell’s complaint. The motion to dismiss identified appellee JHA as the party that operates the hospital.
On April 4, 2005, Dr. Bell filed her amended complaint, which was virtually identical to the original complaint but named JHA as the proper party. On or about April 11, 2005, Mr. Atkinson, who is also the agent for service of process for JHA, was served with the summons and amended complaint. JHA filed its answer on April 20, 2005, relying on the statute of limitations as a complete bar to Dr. Bell’s claim. On May 6, 2005, JHA filed a motion to dismiss on that basis, and after the submission of opposing trial briefs and a hearing, the trial court entered an order granting the motion on November 17, 2005.
Dr. Bell contends on appeal that the order of dismissal was erroneously entered because the amended complaint related back to the original filing date of January 27, 2005, which was within the applicable limitations period. In making this argument, Dr. Bell relies on Ark. R. Civ. P. 15(c), which provides:
Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when:
(1) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(2) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (1) is satisfied and within the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Dr. Bell asserts that, consistent with this rule, the amended complaint contains facts that arose out of the conduct, transaction, or occurrence as set forth in the original complaint. Dr. Bell further submits that, within the 120-day period set out in Rule 4(i),JHA received notice of the action and thus was not prejudiced in maintaining a defense on the merits. Finally, Dr. Bell argues that JHA knew that but for a mistake in identity, it would have been named in the original pleading as opposed to JRMCD.
We agree that the amended complaint related back to the filing date of the original complaint because each of the elements of Rule 15(c) were met. In order for a party to avail herself of Rule 15(c)’s relation-back provision, the facts must show four things: (1) that the claim must have arisen out of the conduct set forth in the original complaint; (2) the party to be brought in must have such notice of the institution of the action that it would not be prejudiced in maintaining a defense on the merits; (3) the party must have known, or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it; and (4) the second and third requirements must have been met within 120 days of the filing of the original complaint. Stephens v. Petrino, 350 Ark. 268, 86 S.W.3d 836 (2002); George v. Jefferson Hosp. Ass’n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999). In the present case the first element was met because the allegations in the amended complaint were the same as in the original complaint. The remaining elements were satisfied because JHA was served with the amended complaint on April 11, 2005, which was within 120 days of the filing of the original complaint on January 27, 2005.
JHA argues in its brief that it had no notice of Dr. Bell’s claim before the statute of limitations lapsed. It contends that, although Mr. Atkinson was the agent for service of process for both JRMCD and JHA, his receipt of the original complaint against JRMCD was not sufficient notice to JHA. However, the inquiry is not whether JHA received notice before the limitations period expired; the inquiry is whether JHA had notice of the action and knew or should have known that it should have been named as the defendant within 120 days of the filing of the original complaint. Although the amended complaint was filed after the statute of limitations expired, it served as timely notice to JHA because it was served on JHA within 120 days as required by Rule 15(c). Rule 15(c) was revised to this extent by a 1993 amendment. Prior to the amendment, an amended complaint could not relate back if the notice to the defendant came outside of the applicable statute of limitations, but that is no longer the rule.
JHA also argues that, with reasonable diligence, Dr. Bell would have named the proper defendant in the original complaint, and that at any rate she had ample opportunity to make a timely amendment because in the answer filed by JRMCD, JRMCD denied that it owned or operated Jefferson Regional Medical Center. We cannot agree. In Harvill v. Community Methodist Hospital Association, 302 Ark. 39, 786 S.W.2d 577 (1990), our supreme court focused on whether the party made a deliberate strategical decision at the outset not to sue the party later added or whether the failure was caused by a mistake in identifying the proper defendant. Here, there was no evidence of any deliberate strategic decision on the part of Dr. Bell, and her mistake in naming Jefferson Regional Medical Center Development, Inc., as the defendant in the original complaint was understandable given that the alleged negligence occurred at Jefferson Regional Medical Center.
While JHA maintains that JRMCD denied being the operator of the hospital in its answer, we note that JRMCD generally and specifically denied in their entirety the following two paragraphs of the complaint:
2. The Defendantjefferson Regional Medical Center Development, Inc. (Hereinafter referred to as “JRMC”) is a domestic corporation organized and existing under the laws of the State of Arkansas, authorized to do business in the State of Arkansas, engaged in the business of operating a medical hospital known as Jefferson Regional Medical Center, and operates and has offices and agents within the State of Arkansas.
3. The agent for service of process for JRMC is Robert P. Atkinson, 1515 West 42nd Street, Pine Bluff, Arkansas 71603.
Many of the allegations denied by JRMCD were in fact true, and it cannot be said that its answer put Dr. Bell on notice that she was suing the wrong party. This is particularly true in light of the fact that JRMCD raised the defense of comparative fault in its answer, and served interrogatories and requests for production of documents on Dr. Bell. It was not until March 30, 2005, when JRMCD filed its motion to dismiss, that Dr. Bell became aware that she sued the wrong party, and thereafter Dr. Bell promptly filed her amended complaint naming JHA as the defendant.
Finally, JHA asserts that it will be prejudiced if it is forced to defend Dr. Bell’s untimely claim, citing the time that has elapsed and the possibility of faded memories and lost evidence. However, this argument fails because the amended complaint was served on JHA before the 120-day period to serve the original complaint expired. JHA is in no worse position than had it been properly named in the original complaint filed January 27, 2005, and then timely served on April 11, 2005.
In St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002), our supreme court made the following observations about the application of Rule 15:
Rule 15 applies, for example, when an amendment permissibly changes the party against whom the claim is asserted or adds a party after the statute of limitations has run, and it may relate back to the time of filing of the original complaint. Southwestern Bell Tel. Co. v. Blastech, 313 Ark. 202, 852 S.W.2d 813 (1993). Rule 15 makes liberal provision for amendments to pleadings and even allows a plaintiff to amend to add new claims arising out of the conduct alleged in the initial valid complaint. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985).
Id. at 204-05, 73 S.W.3d at 588. We hold that, under the facts of the present case, Rule 15(c) applies and thus that the trial court erred in dismissing appellant’s complaint on the grounds that it was barred by the statute of limitations.
Reversed and remanded.
Gladwin and Baker, JJ., agree.
Because Mr. Atkinson is the President and CEO of Jefferson Regional Medical Center, we think JHA was on notice of the lawsuit against it when he received the original complaint. Nevertheless, this fact was not before the trial court when it entered its order of dismissal, and thus we cannot consider it. JHA first brought this to the attention of the trial court in its motion for reconsideration, which was neither ruled on nor appealed from. | [
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Karen R. Baker, Judge.
This is the second appeal in this revocation case. On November 26, 1996, appellant Theresa Bedford pleaded guilty to forgery and received a ten-year suspended imposition of sentence. The State filed a revocation petition on February 12, 2004, and a revocation hearing was held on March 4, 2004. After the hearing, the trial court found that appellant had violated the conditions of her suspended sentence by failing to pay fines and costs, and by committing a forgery, and entered an order sentencing her to four years in prison.
In the first appeal, appellant’s counsel argued that the appeal was wholly without merit pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) (1) of the Rules of the Arkansas Supreme Court and Court of Appeals. In an unpublished opinion, Bedford v. State, CACR 04-706 (January 11, 2006), we ordered rebriefing on the grounds that appellant was entitled to an adversarial presentation by her counsel on the issue of whether the trial court’s decision to revoke was clearly against the preponderance of the evidence.
In her adversarial brief, appellant presents two arguments for reversal. First, she asserts that the trial court erred in finding that she violated her conditions by failing to pay fines and costs because the written conditions of her suspended sentence did not require such payments. The State concedes error on this point, and we agree. Second, she argues that the trial court erred in finding that she committed a forgery and subsequently violated her probation. We agree and reverse.
The disposition of this case requires the application of permissible inferences by the trial court in the context of a probation revocation based upon an accusation of forgery. The State has the burden to prove a violation of a condition of probation by a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). This burden is not as great in a revocation hearing; therefore, evidence that is insufficient for a criminal conviction may be sufficient for revocation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). If a court finds by a preponderance of the evidence that a defendant has inexcusably failed to comply with a condition of his or her probation, it may revoke the probation. Ark. Code Ann. § 5-4-309(d) (Repl. 2006). The trial court’s findings will be upheld unless they are clearly against the preponderance of the evidence; and because the determination of a preponderance of the evidence turns on the questions of credibility and weight to be given testimony, on review, the appellate courts will defer to the trial judge’s superior position. Id.
The State argues that the trial court properly revoked appellant’s suspended sentence for attempting to cash a check that was written on a closed account. The State cites Arkansas Code Annotated section 5-37-201(a) (Repl. 2006), which provides:
A person forges a written instrument if with purpose to defraud he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act.
In its argument, the State contends that the trial court found that appellant’s presentation of a check on a closed account was a sufficient basis to revoke her suspended sentence and relies upon the principle that possession of a forged instrument by someone who seeks to utter it without any reasonable explanation of how she acquired it warrants an inference that the possessor committed the forgery. See Mayes v. State, 264 Ark. 283, 291, 571 S.W.2d 420, 425 (1978); DeShazer v. State, 94 Ark. App. 363, 230 S.W.3d 285 (2006). However, that premise does not apply on the facts of this case because the State failed to prove that the check at issue was a forged instrument.
To prove that the check issued was forged, the State relied upon the testimony of an employee of the supermarket, Bruce Avan. He stated that he is employed at a Big Star grocery store in West Memphis. He further testified that, in September 2003, appellant cashed a check made out to her in the amount of $1220 at the store. In order to cash the check, appellant presented her driver’s license, a photocopy of which is on the back of the check. According to Mr. Avan, the check was returned by the bank with “Account Closed” stamped on it, and Big Star never recovered the money it paid to appellant.
The State also elicited testimony from Mr. Avan that he had previously dealt with appellant and that “we have had other forgeries from her.” Mr. Avan alleged that appellant had been banned from the store but that “she comes anyway.” In addition, Mr. Avan related the following incident that occurred after appellant passed the check on the closed account:
I know that she came back in our store after that and presented another check to be cashed and the assistant manager recognized the name and knew we had problems with her. We had not received the first check back yet. The assistant manager said to me, “let me look at it.” [Appellant] said “no, that’s okay, I’ll just get it cashed somewhere else.” She left without letting me see the check.
Officer Bernice Franks, employed by the West Memphis Police Department, CID Division, testified regarding the investigation of the passing of the check. Officer Franks explained that the check presented by appellant was made out to appellant, endorsed by appellant, and had superimposed upon the back of the check a picture of a driver’s licensed issued by the State of Arkansas to appellant. The officer also stated that all of that information was on the check when Mr. Avan provided the check to the police. Officer Franks further described attempts to connect appellant with other fraudulent passing of checks but stated that the department could not identify her as the perpetrator. In particular, there was another check drawn on the same entity and cashed at Fidelity National Bank, although the department could never link appellant to the passing of that check.
Appellant testified on her own behalf, and asserted that she earned the $1220 check while working for Gates Cleaning Service in Memphis. Appellant gave a phone number and address for the company, and indicated that she performed cleaning work from April through early September 2003, and that the check at issue was the last paycheck she received. She stated that her boss was a man named Cedric Yates. Appellant acknowledged that she had committed forgeries in the past and that she has three previous forgery convictions, but maintained that the transaction at issue was legitimate.
Given this evidence, we cannot say that the State proved that the check was forged. While Mr. Avan testified that the check was returned stamped “account closed,” there was no evidence as to when the account was closed, particularly as to whether the account was closed prior to the date the check was allegedly issued or presented by appellant to the supermarket. In fact, Mr. Avan testified that he did not know the specific date that the store received the check. The State presented no evidence to prove that the check was issued or presented for payment after the date the account was closed. Although the State argues that the evidence permitted the trial court to conclude that appellant presented a check knowing that the bank account was closed, that argument must fail when the record is void of any evidence that the account was closed prior to its issuance or its presentation by appellant to the supermarket.
While the drawing of reasonable inferences from the testimony is for the trial judge as fact-finder, not this court, Deshazer, supra, when the record contains no evidence as to when a checking account is closed in relationship to when the check was issued or passed, the record cannot support the inference that the account was closed prior to the issuance or passing of the check. In arguing that this court must defer to the trial court’s determination of credibility, the State quotes the trial judge’s description of appellant as a “career check passer,” and asserts that the court’s description suggests that the judge believed this incident to be yet another attempt by her to fraudulently obtain money. The State argues that we must defer to the trial judge’s superior position to assess appellant’s credibility.
We agree with the State’s general proposition regarding permissible inferences from possession of a forged instrument. Possession of a forged instrument by one who offers it without any reasonable explanation of the manner in which she acquired it warrants an inference that the possessor committed the forgery or was an accessory to its commission. DeShazer, supra. See also McGirt v. State, 289 Ark. 7, 708 S.W.2d 620 (1986) (holding that “the crime of forgery was complete upon his being in possession of the forged instrument, or upon his attempt to pass the check, or upon his passing of the check”); Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978) (holding that possession of a forged instrument by one who offers or seeks to utter it without any reasonable explanation of the manner in which he acquired it warrants an inference that the possessor committed the forgery or was a guilty accessory to its commission); see also Faulkner v. State, 16 Ark. App. 128, 697 S.W.2d 537 (1985).
Nevertheless, before the inference that the possessor of a forged instrument committed the forgery is warranted, the State must first prove that the instrument in question is a forged instrument. While the trial court is not required to believe the accused’s explanation of how he or she came into possession of a forged instrument, the trial court may not use its disbelief of the explanation regarding possession of the instrument to infer that the instrument is in fact forged.
Because the State failed to prove that the check was issued or presented for payment prior to the closure of the bank account upon which it was drawn, the trial court could not reasonably infer that the check was forged. Therefore, we hold that the trial court erred in finding that appellant violated the terms of her probation by passing a forged instrument. Accordingly, we reverse and dismiss.
Hart, Bird, Glover and Vaught, JJ., agree.
Pittman, C.J., Robbins, Crabtree and Roaf, JJ., dissent.
In Bedford I, it was noted that appellant pro se asserted that she did not commit a forgery, claiming that no one bothered to check out the information she presented as to her employment, and this was one of the issues we identified in our determination that appellant was entitled to an adversarial brief. The dissent now comments that this very issue was not raised on appeal. In fact, appellant argues that the State failed to prove that appellant violated a State law, cites the statutory definition of forgery and states that “[t]he key here is whether or not the Appellant took her actions with the purpose to defraud another person who did not authorize this action.” (Emphasis added.) She further argues that the evidence to the court included appellant remaining for the entire transaction, presenting proper identification, and “included facts concerning the drawer of the instrument.” She asserts that “ [c]learly the State did not meet its burden... to the underlying charge of forgery.” Given appellant’s arguments, it is difficult to understand how the dissent concludes that the adversarial presentation of this argument has not been met. | [
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John B. Robbins, Judge.
Appellant Steven Dean Armer was convicted by a jury of possession of Valium with intent to deliver and possession of drug paraphernalia. He waived jury sentencing, and the trial judge sentenced him to four years in the Arkansas Department of Correction for each conviction, with the sentences to run concurrently. Mr. Armer now appeals, arguing that the trial court improperly limited his voir dire of the potential jurors. We affirm.
The evidence in this case showed that, on July 17, 1993, a police officer found Mr. Armer passed out in the back seat of his vehicle. In plain view inside the car were approximately 1000 Valium tablets and various items of drug paraphernalia. Upon discovering this contraband, the police took Mr. Armer into custody.
On the day of Mr. Armer’s trial, his counsel attempted during voir dire to question potential jurors about punishment and sentencing. The trial court stated that the only questioning that would be allowed regarding sentencing would be whether any member of the jury panel would be uncomfortable sending Mr. Armer to prison for the maximum term of ten years if found guilty. Mr. Armer’s counsel requested, but was not permitted, to ask the following questions to the prospective jurors:
1. Would the jury members automatically give the maximum sentence to each offense charged just because it was a drug case and whether their attitude was to lock up and throw away the key, put these people away for a long period of time?
2. Is prison the only alternative? Would the jury members consider a fine? Is a fine appropriate in a drug offense case?
3. Do the jury members think that drug addicts should be treated differently than people who are drug dealers?
4. Do the jury members know the difference between misdemeanors and felonies?
5. Do the jury members believe in individualized penalties based upon the facts and circumstances of each particular case?
6. Do the jury members think that first offenders should be treated differently than multiple offenders?
For reversal, Mr. Armer contends that the trial court erroneously prevented him from asking the above questions. He argues that, had he been allowed to make his proposed inquiries regarding sentencing and punishment, he would have had an opportunity to strike jurors who may have been inclined to give him the maximum sentence. Since he was unable to ask these questions, Mr. Armer asserts that he had no practical choice but to waive jury sentencing.
The purposes of voir dire examination are to discover if there is any basis for challenging for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Ark. R. Crim. P. 32.2(a); Nutt v. State, 312 Ark. 247, 848 S.W.2d 427 (1983). The extent and scope of voir dire examination of prospective jurors are matters lying within the sound judicial discretion of the trial court, the latitude of which is rather broad. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). A trial court’s limitation of voir dire examination is not reversible on appeal unless it constitutes a clear abuse of discretion. Fauna v. State, 265 Ark. 934, 582 S.W.2d 18 (1979).
In the case at bar, we need not address the merits of Mr. Armer’s argument because any possible prejudice against Mr. Armer was removed when he waived jury sentencing and was sentenced by the trial court. In Clinkscale v. State, 13 Ark. App. 149, 680 S.W.2d 728 (1984), this court affirmed the appellant’s conviction despite his complaint that two jurors declared that they could not sentence him impartially. In doing so, we held that although the appellant was faced with a biased jury, any prejudice was cured because the jury unanimously elected to let the trial court set the sentence, and the trial court did so. A somewhat analagous situation was addressed by the supreme court in Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989), and is also instructive. In that case, the appellant took issue with the trial court’s refusal to grant his motion in limine to exclude his prior felonies on cross-examination by the State. The appellant chose not to testify on his own behalf as a result of the ruling, but the supreme court held that his assignment of error was not preserved for review because he did not testify at trial. The court stated:
To perform the weighing of the prior conviction’s probative value against its prejudicial effect, as required by Rule 609(a)(1), the reviewing court must know the precise nature of the defendant’s testimony, which is unknowable when, as here, the defendant does not testify. Any possible harm flowing from a trial court’s in limine ruling permitting impeachment by a prior conviction is wholly speculative. Moreover, when the defendant does not testify, the reviewing court has no way of knowing whether the State would have sought so to impeach, and cannot assume that the trial court’s adverse ruling motivated the defendant’s decision not to testify. Even if these difficulties could be surmounted, the reviewing court would still face the ques tion of harmless error. If in limine rulings under Rule 609(a) were reviewable, almost any error would result in automatic reversal, since the reviewing court could not logically term “harmless” an error that presumptively kept the defendant from testifying. Requiring a defendant to testify in order to preserve Rule 609(a) claims enables the reviewing court to determine the impact any erroneous impeachment may have in light of the record as a whole, and tends to discourage making motions to exclude impeachment evidence solely to “plant” reversible error in the event of conviction.
In the instant case no reversible error occurred because, although Mr. Armer was unable to question potential jurors regarding sentencing, he was not sentenced by the jury. As in Clinkscale v. State and Smith v. State, it would be pure speculation for us to attempt to weigh any possible harm suffered by Mr. Armer as a result of the alleged error. It is entirely possible that, even if Mr. Armer had been allowed to voir dire the jurors and then decided to submit the case to the jury for sentencing, the jury would have exacted the same or greater punishment than that given by the trial court. It is also wholly conceivable that, had Mr. Armer not waived jury sentencing, the jury may have given a lighter sentence than the trial court despite the excluded voir dire questioning. Moreover, when Mr. Armer waived jury sentencing, he failed to indicate that he was doing so as a result of the excluded voir dire. Mr. Armer has not shown prejudice, therefore we affirm his convictions.
Affirmed.
Pittman, J., concurs.
Jennings, C.J., Cooper and Mayfield, JJ., dissent. | [
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John E. Jennings, Judge.
After a bench trial, Damion Young was found guilty of possession of a controlled substance (cocaine) with intent to deliver and simultaneous possession of drugs and firearms. He was sentenced to concurrent terms of ten years in prison. Appellant contends on appeal that the evidence is not sufficient to sustain either conviction. We disagree and affirm.
When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict. Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999). Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). It is the responsibility of the trier of fact to determine the credibility of the witnesses. Kelley v. State, 75 Ark. App. 144, 55 S.W.3d 309 (2001).
Under Ark. Code Ann. § 5-64-401 (a) (Supp. 2001), it is unlawful for any person to possess a controlled substance with intent to deliver. A person commits the offense of simultaneous possession if he commits a felony violation of § 5-64-401 while in possession of a firearm. Ark. Code Ann. § 5-74-106(a)(l) (Repl. 1997).
At trial, it was shown that officers of the Little Rock Police Department executed a warrant for the search of the home of appellant’s father. Appellant, his father, his brother, and two other individuals were at the residence when the officers arrived. When the officers entered, those present in the front room, including appellant, ran to the back of the house. Appellant and his brother were apprehended in the bathroom. The officers found a plastic baggie in the toilet containing off-white rocks later determined to be crack cocaine. Several small, off-white rocks were also found on the floor next to the toilet. Two plastic bags containing crack cocaine were removed from appellant’s pocket. The cocaine found in appellant’s pocket weighed 13.5 grams. It was estimated that this quantity had a street value of $1,300.
The front room of the house was furnished with two sofas separated by a coffee table. On the coffee table, officers found a bag of marijuana, three individually wrapped bags of crack cocaine, and a plate on which sat several more off-white rocks. Three rocks were found on a sofa, and one rock was found underneath the cushion. A total of three handguns were also found in the front room.
A set of scales and two large glass tubes were found in a kitchen cabinet. Crumbs of crack cocaine were found on top of the refrigerator, and a pipe was found on the kitchen floor.
Officer Ray Moreno was the first to enter the home. He testified that a loaded Mach 10 nine-millimeter, semi-automatic handgun was found on one of the sofas. He said that appellant had been the only person seated on that couch and that the weapon had been near the area of appellant’s left leg.
Appellant first contends that the evidence is not sufficient to show that he possessed the nine-millimeter handgun. We disagree.
To sustain a conviction for possession, neither exclusive nor actual physical possession is necessary. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). Constructive possession, which is control or right to control, is sufficient. Franklin v. State, 60 Ark. App. 198, 962 S.W.2d 370 (1998). Constructive possession can be implied where the contraband is found in a place immediately and exclusively accessible to the defendant and subject to his control. Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995).
Where there is joint occupancy of the premises where the contraband is seized, some additional factor must be found to link the accused to the contraband. Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). In such instances, the State must prove that the accused exercised care, control, and management over the contraband and also that the accused knew that the object possessed was contraband. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000). This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. Nichols v. State, 306 Ark. 417, 815 S.W.2d 382 (1991).
In Mayo v. State, supra, marijuana was found on a coffee table near a couch where the appellant had been sitting. The appellant had no connection with the house, and there was another individual in the room with the appellant when the police entered the house. We reversed, holding that there was no substantial evidence to support the conclusion that the appellant “exercised care, control, and management over the contraband.” Likewise, in Mosley v. State, 40 Ark. App. 154, 844 S.W.2d 378 (1992), the appellant was one of seven people in a room where drugs were found. The appellant was sitting on a couch along with two other persons. A cigarette package containing rocks of crack cocaine and some twenty-eight loose rocks were found under a cushion of the couch where the appellant had been sitting. A bag containing thirty-three rocks of crack cocaine was stuffed between a chair and the wall. There was no evidence that appellant lived in the apartment, and no drugs were found on the appellant’s person. We concluded that the evidence was not sufficient to sustain the appellant’s conviction of possession because the contraband found under the cushion was not in an area exclusively under appellant’s control and because the contraband located behind the chair was not in plain view.
The facts in the case at bar are materially different from those in either Mayo or Mosley. Here, there was testimony that the gun was found, in plain view, on a couch. It was said that appellant was the only person who had been sitting on that couch and that the gun was located near appellant’s left leg. Moreover, it is also relevant that appellant was in possession of 13.5 grams of cocaine. It has been recognized that a logical connection exists between the possession of drugs and firearms. See Jackson v. State, 52 Ark. App. 7, 914 S.W.2d 317 (1996). On this record, we conclude that there is substantial evidence to support the guilty verdict.
Appellant also contends that there is insufficient evidence to support the conviction for possession with intent to deliver. He bases this argument on his testimony that he possessed the cocaine for his own personal use. Arkansas Code Annotated section 5-64-401 (d) (Supp. 2001) creates a rebuttable presumption that the possession of more than one gram of cocaine demonstrates an intent to deliver. The appellant was in possession of 13.5 grams of cocaine. Although appellant testified that the cocaine was for his own personal use, the trier of fact was not obligated to believe him. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). In addition, evidence of appellant’s possession of a firearm is relevant to prove intent to deliver. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). We cannot say that there is no substantial evidence to support this conviction.
Robbins and Crabtree, JJ., agree. | [
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Per Curiam.
In this case the appellant has filed a notice of appeal from the Arkansas Workers’ Compensation Commission, but the record on appeal was tendered to the clerk of this court nine days too late. Appellant has now filed a motion for a rule on the clerk to require the record to be filed, and the attorney for appellant has admitted that the failure to file the record on time was the attorney’s fault.
This is not a reason that will allow the record in a civil case to be filed out-of-time. This reason is allowed in criminal cases because “to do otherwise would be a denial of a constitutional right; that is, the right to effective assistance of counsel.” Moore v. State, 267 Ark. 548, 592 S.W.2d 450 (1980). See also Kennedy v. State, 321 Ark. 564, 905 S.W.2d 70 (1995). In Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981), we discussed this point and pointed out that the Arkansas Supreme Court had allowed records to be filed out-of-time in civil cases only in the “most extraordinary circumstances.” We have consistently applied this rule in appeals from the Workers’ Compensation Commission since the Davis v. C & M Tractor case. See Novak v. J.B. Hunt Transport, 48 Ark. App. 165, 892 S.W.2d 526 (1995), where we refused to allow a record from the Workers’ Compensation Commission to be filed because it was tendered one day past the filing deadline.
In Novak and some other cases, the failure to timely file the record has resulted from the fact that the appellant has relied upon the Commission, which prepares the record, to file it within the required period of ninety days from the filing of the notice of appeal. We noted in Evans v. Northwest Tire Service, 21 Ark. App. 75, 728 S.W.2d 523 (1987), that Arkansas Supreme Court and Court of Appeals Rule 26 had been amended to allow a dated and certified copy of an order of an administrative agency or commission to be filed in the appellate court asking that a writ of certiorari be issued directing that the record on appeal be filed in the appellate court. Rule 26 also provided that the writ would order that the record be completed and filed within thirty days. That Rule is now Rule 3-5.
Therefore, in appeals from the Workers’ Compensation Commission it would be wise to routinely make a calendar note to file a petition for writ of certiorari about three weeks before the record is required to be filed in the appellate court. For practical purposes this is the only way to extend the filing deadline in those cases since the method for obtaining an extension of time as provided in Arkansas Rule of Appellate Procedure 5(b) does not apply to appeals from the Commission. See Evans, supra.
The motion for rule on the clerk in the instant case must be denied. | [
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Judith Rogers, Judge.
The appellant, Melissa Hall, asks this court to reverse the trial court’s denial of her motion to withdraw her previously entered pleas of guilt. We decline that invitation, and affirm.
On March 25, 1994, appellant was charged by information with one count of breaking or entering, two counts of felony theft of property, possession of drug paraphernalia and possession of a controlled substance, marijuana. For each offense, it was alleged that she acted alone or as an accomplice to her husband, John D. Hall. On April 6, 1994, appellant appeared before the court with counsel and entered pleas of guilt to all counts in exchange for the State’s agreement not to pursue eight other charges pending against appellant. At the hearing, the trial court accepted the pleas of guilt after determining that there was a factual basis to support them and that appellant had knowingly, voluntarily and intelligently entered them. The trial court also accepted the recommended sentence of concurrent terms totalling ten years in prison.
On April 13, 1994, appellant again appeared with counsel and asked the court to allow the withdrawal of her guilty pleas on the ground that the pleas were not entered voluntarily. Appellant told the court that she had been confused, and had pled guilty only because her husband had made her do so. She explained that her husband had an “anger problem,” that he was the one who committed the criminal acts and that her participation in the criminal activity was the result of his intimidation. James Roy Car-mack, Sheriff of Montgomery County, testified that appellant and her husband had been jailed in separate facilities and that the only contact they had had during their incarceration consisted of two phone calls and several letters. Sheriff Carmack said that he had read one of the letters written by Mr. Hall, and he related that Hall had advised appellant in this letter not to plead guilty as he thought that she could get a better deal later on. Carmack further testified that the two had sat together for a short time in the courtroom on the day their pleas were entered. After hearing this testimony, the court first took the issue under advisement, but later entered an order denying appellant’s motion to withdraw.
Rule 26.1 of the Arkansas Rules of Criminal Procedure addresses plea withdrawal, and states in pertinent part that the trial court shall allow a defendant to withdraw her plea of guilt upon proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. The rule further provides that withdrawal shall be deemed necessary to correct a manifest injustice if the defendant proves to the satisfaction of the court that the plea was, among other things, involuntary. Also according to the rule, the court in its discretion may allow the defendant to withdraw her plea if it is fair and just to do so, giving due consideration to the reasons advanced by the defendant in support of her motion and any prejudice the granting of the motion would cause the prosecution by reason of actions taken in reliance upon the defendant’s plea.
Where a factual basis exists for the plea and the defendant initially admits that the plea is voluntary, the defendant faces an “uphill climb” to overcome the consequences of the plea. Stone v. State, 254 Ark. 566, 494 S.W.2d 715 (1973). As was said in Stone v. State, supra, “[p]leas of guilty — especially negotiated ones — are designed to avoid the necessity of trial, with advantages both to the State and to the defendant. It is essential that such pleas have some measure of stability.” In sum, a plea of guilty is not to be lightly disclaimed days later, as appellant has attempted to do. Furthermore, the trial judge was not required to accept appellant’s repudiation of her earlier statements regarding the voluntariness of her pleas. See Pettigrew v. State, 262 Ark. 359, 556 S.W.2d 880 (1977). From our review, we find no abuse of discretion in the trial judge’s decision that the withdrawal of appellant’s pleas was not necessary to correct a manifest injustice.
Affirmed.
Cooper and Mayfield, JJ., agree. | [
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John B. Robbins, Judge.
On July 17, 1992, a train collided with a vehicle being driven by West Memphis Machine and Welding employee Donald Ray Lepard, causing Mr. Lepard’s death. Mr. Lepard’s wife, Pamela Lepard, and former wife, Ann Lep-ard (on behalf of his minor child), brought a claim for workers’ compensation benefits. The Workers’ Compensation Commission denied benefits, ruling that compensability was precluded by the “going and coming” rule. Pamela Lepard and Ann Lepard now appeal, arguing that the Commission’s finding that their claim was barred by the “going and coming” rule was not supported by substantial evidence. We affirm.
The “going and coming” rule ordinarily precludes recovery for an injury sustained while the employee is going to or returning from his place of employment. Woodard v. White Spot Cafe, 30 Ark. App. 221, 785 S.W.2d 54 (1990). The rationale behind this rule is that an employee is not within the course of his employment while traveling to or from his job. Brooks v. Wage, 242 Ark. 486, 414 S.W.2d 100 (1967).
When reviewing decisions from the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Welch’s Laundry & Cleaners v. Clark, 38 Ark. App. 223, 832 S.W.2d 283 (1992). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). A decision by the Workers’ Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Silvicraft, Inc. v. Lambert, 10 Ark. App. 28, 661 S.W.2d 403 (1983).
The relevant facts in this case are not in dispute. Mr. Lep-ard had been an employee of West Memphis Machine and Welding for several months prior to the accident. Approximately two months before the accident, Mr. Lepard and his wife were having transportation problems because they owned only one vehicle. Because of this dilemma, Mr. Lepard asked his employer if he could borrow a company truck for the purpose of getting back and forth to work. William Johnson, owner of West Memphis Machine and Welding, agreed to lend Mr. Lepard one of the company’s trucks for this purpose. It was agreed that Mr. Lepard would purchase $25.00 of gas each week for the truck which was intended to equate the amount of gas used in his trips to and from work. Mr. Lepard also agreed to periodically clean and service the truck. On occasion, Mr. Lepard would run company errands while at work, and on those occasions Mr. Johnson would pay for the gas. Upon returning home from work, Mr. Lepard would park the truck and not drive it until time to go to work again.
On the day of the accident, Mr. Lepard telephoned Julie Smrt before driving the company truck home at the end of the work day. Ms. Smrt is Mr. Johnson’s daughter and was a coworker of Mr. Lepard. Mr. Lepard told Ms. Smrt that he was about to leave work and asked if she wanted him to come by her house with her paycheck. Ms. Smrt responded that this was unnecessary and informed Mr. Lepard that she would come to the office and get it herself. However, Mr. Lepard told Ms. Smrt that he did not mind going out of his way and bringing it to her. After this conversation Mr. Lepard drove the truck to Ms. Smrt’s home, gave her the paycheck, visited for about fifteen minutes, and proceeded to drive toward his house. About three blocks from his house, Mr. Lepard collided with a train and suffered fatal injuries. The Commission denied appellants’ claim for death benefits.
For reversal, the appellants argue that the Commission erred in finding that their claim was barred by the “going and coming” rule. Although this rule ordinarily precludes compensation, the appellants correctly state that there are exceptions to the rule. These exceptions are outlined in Jane Traylor, Inc. v. Cooksey, 31 Ark. App. 245, 792 S.W.2d 351 (1990), as follows:
(1) where an employee is injured while in close proximity to the employer’s premises; (2) where the employer furnishes the transportation and to and from work; (3) where the employee is a traveling salesman; (4) where the employee is injured on a special mission or errand; and (5) when the employer compensates the employee for his time from the moment he leaves home until he returns home.
The appellants rely on the second and fourth exceptions for their argument. They contend that there was an exception to the “going and coming” rule because it was undisputed that Mr. Lepard’s employer provided him transportation to and from work by furnishing him a truck for this purpose. Alternatively, the appellants argue that there was an exception to the rule in this case because Mr. Lepard was engaged in a “special mission or errand” at the time of his death.
In determining that an exception to the rule did not arise on the basis of the truck being owned by the employer, the Commission relied on the fact that there was no nexus between the travel and employment in this case. The appellants assert that this standard was erroneous as a matter of law. We disagree. In Rankin v. Rankin Constr. Co., 12 Ark. App. 1, 669 S.W.2d 911 (1984), the claimant injured himself while driving home in a vehicle owned by his employer. That case is distinguishable because there the journey did not start from the employer’s premises. Nevertheless, we stated that, in order to determine whether the claimant’s injuries arose out of his employment, there must be a “connection, or nexus, between the travel and the employment.” Similarly, we think that some nexus between the employment and travel must be present in order for a claimant to recover for injuries sustained on a trip from his employer’s premises to his home.
One such nexus which could give rise to compens-ability would be if the employer provided the transportation as part of the employee’s compensation, or if the employer benefited from the furnishing of transportation because the employee was perpetually “on call.” See generally Arkansas Power and Light Co. v. Cox, 229 Ark. 20, 313 S.W.2d 91 (1958). In the case at bar, the company truck was supplied by the employer as a pure gratuity, with no benefit accruing to the employer. The use of the truck was not part of Mr. Lepard’s compensation and he was never “on call” during the two months that he was driving the truck. He was simply able to use the truck to get back and forth to work because he and his wife had only one vehicle and his employer chose to help him with his problem, without the expectation of anything in return.
Although this court has never specifically stated that the “furnishing of transportation” exception to the “going and coming” rule does not apply when the transportation is furnished solely as a gratuity, we now take the opportunity to do so. In Arkansas Power and Light Co. v. Cox, supra, the supreme court quoted Venho v. Ostrander Railway and Timber Co., 52 P.2d 1267 (Washington 1936), as follows:
When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within ‘the course of his employment,’ as contemplated by the act. In other words, when the vehicle is supplied by the employer for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor. . . .
This exception to the rule may arise either as the result of custom or contract, express or implied. It may be implied from the nature and circumstances of the employment and the custom of the employer to furnish transportation.
In the instant case, the vehicle was not lent to Mr. Lepard for the mutual benefit of him and his employer, since his employer received no benefit. In addition, the appellee employer did not have a custom of providing transportation for its employees, nor did part of the employment agreement include the furnishing of transportation. The truck was being used gratuitously, and as such the fact that it was owned by the employer does not give rise to an exception to the “going and coming” rule. This principle has been applied in other jurisdictions, and we now adopt it. See Unity Auto Parts, Inc. v. Workman’s Compensation Appeal Bd., 610 A.2d 1071 (Pa. Commw. 1991). In Williams and Johnson v. National Youth Corps, 269 Ark. 649, 600 S.W.2d 27 (1980), we stated that the mere fact that an accident occurs while an employee is riding in a vehicle owned by his employer.is not sufficient to support a finding of compensability. The fact that Mr. Lepard was driving his employer’s truck at the time of his accident does not, in itself, render the accident compensable.
The appellant’s remaining argument is that the Commission erroneously failed to find an exception to the “going and coming” rule on the basis that Mr. Lepard was engaged in a busi ness errand in addition to the personal purpose of going home when he suffered the fatal accident. Specifically, Mr. Lepard contends that, when he delivered the paycheck to Ms. Smrt, he was engaging in business that benefitted his employer. We reject this argument because the evidence showed that Mr. Johnson did not instruct Mr. Lepard to deliver the check, nor was he even aware that Mr. Lepard was going to make the delivery. As far as Mr. Johnson was concerned, Mr. Lepard was off the clock when he left work on the day of the accident. Ms. Smrt testified that she did not ask Mr. Lepard to deliver the check, and that he did so as a friendly gesture. Clearly, West Memphis Machine and Welding did not benefit from the delivery of the check, particularly in light of the fact that Ms. Smrt had already planned to come in and personally pick up the check. In Jane Traylor, Inc. v. Cooksey, supra, we analyzed the issue of whether a “dual purpose” journey could give rise to compensation, and we stated:
The decisive test must be whether it is the employment or something else that has sent the traveler forth upon the journey or brought exposure to the perils. . . . We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause . . . and sufficient within itself to occasion the journey. (Quoting Martin v. Lavender Radio and Supply, Inc., 228 Ark. 85, 305 S.W.2d 845 (1957).)
Jane Traylor, Inc. v. Cooksey, 31 Ark. App. at 252, 792 S.W.2d at 354. In the instant case, the trip undertaken by Mr. Lepard provided no service to his employer, thus his subsequent accident was not compensable.
We find that substantial evidence supports the Commission’s ruling, and we affirm.
Pittman and Mayfield, JJ., agree. | [
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James R. Cooper, Judge.
The appellant in this workers’ compensation case was employed by the appellee as a biscuit maker from September 1989 until November 1992. She began to experience pain in her right elbow and sought treatment in March 1992. She filed a claim for workers’ compensation benefits and, after a hearing before the administrative law judge, was awarded permanent partial disability benefits based upon a 5% permanent physical impairment rating. On de novo review, the Commission found that the appellant failed to prove by a preponderance of the evidence that she is entitled to compensation for a permanent physical impairment. From that decision, comes this appeal.
For reversal, the appellant contends that the Commission erred in finding that she failed to prove she incurred a 5% permanent physical impairment. We affirm.
In determining the sufficiency of the evidence to sustain the findings of the Workers’ Compensation Commission, we review the evidence in the light most favorable to the Commission’s findings and affirm if they are supported by substantial evidence. Grimes v. North American Foundry, 42 Ark. App. 137, 856 S.W.2d 309 (1993). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. City of Fort Smith v. Brooks, 40 Ark. App. 120, 842 S.W.2d 463 (1992). The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission’s decision even though we might have reached a different conclusion if we sat as the trier of fact or heard the case de novo. Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 S.W.2d 617 (1988). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. Grimes v. North American Foundry, supra. The Commission has the duty of weighing medical evidence and, if the evidence is conflicting, its resolution is a question of fact for the Commission. Id. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). Where, as here, the Commission has denied a claim because of a failure to show entitlement by a preponderance of the evidence, the substantial evidence standard of review requires us to affirm if the Commission’s opinion displays a substantial basis for the denial of relief. Williams v. Arkansas Oak Flooring, Co., 261 Ark. 810, 590 S.W.2d 328 (Ark. App. 1979).
Two physicians testified on the issue of permanent impairment. Dr. Oates opined that the inflammation was not permanent. The appellant’s case therefore rested entirely upon the opinion of Dr. Martinson, who believed the appellant had a 5% impairment. In its opinion, the Commission discussed the basis for its rejection of Dr. Martinson’s impairment rating:
Dr. Martinson opined that the claimant sustained a 5% permanent impairment to her upper extremity. However, in reaching this conclusion, Dr. Martinson made the following comments:
The AMA Guidelines do not fit this clinical situation well. At this point she has no objective [emphasis in original] physical abnormalities in her right upper extremity with the exception of the tenderness. The Guidelines do permit some latitude in those cases where the severity of the clinical findings does not correspond to the true extent of the physical problem. On that basis, I believe it would be appropriate to assign her a five percent impairment rating for her dominant right upper extremity because of her underlying soft tissue abnormality and the likelihood of recurrence when put to use.
Consequently, Dr. Martinson’s opinion is based on her perception of the “true extent of the physical problem,” which she developed after examining the claimant on one occasion. With regard to the nature of this problem, Dr. Mar-tinson makes the following comments:
The customary course of this condition is one of exacerbation and remission depending upon the amount and type of use demanded of the muscles of the arm. The underlying pathology is believed to be one of microscopic tears within the substance of the muscle origin. These heal with scar which, like all scar, responds poorly to additional repetitive stretching producing chronic inflammatory signs and symptoms. . . .
Consequently, Dr. Martinson’s opinion is based on her assumption that scar tissue is in fact present which is causing the inflammation. However, as discussed, the findings of tenderness and increased pain with resistive extension merely establish the presence of inflammation; these findings do not indicate the presence of scar tissue or any other permanent impairment, a fact which Dr. Martinson concedes when she recognizes that there are no objective physical abnormalities in her right upper extremity with the exception of tenderness. . . . Consequently, we find that Dr. Martinson’s opinion is based on speculation and conjecture and that her opinion regarding permanent impairment is entitled to little weight.
The Commission’s rejection of Dr. Martinson’s opinion was clearly based on its assessment of the weight to be given that evidence. We have often said that the credibility of witnesses and the weight to be given their testimony are matters solely within the province of the Commission. See e.g., Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 346 (1995); Bartlett v. Mead Containerboard, 47 Ark. App. 181, 888 S.W.2d 314 (1994). Furthermore, we have said that the weighing of medical evidence and the resolution of conflicts therein is a question of fact for the Commission, Bartlett, supra, and that when the Commission chooses to accept the testimony of one physician over another in such cases we are powerless to reverse the decision. Henson v. Club Products, 22 Ark. App. 136, 736 S.W.2d 290 (1987). In the case at bar, the medical experts disagreed, and the Commission rejected one physician’s opinion on the basis of the limited patient contact and the absence of objective physical abnormalities to confirm that physician’s assessment. While we may not have reached this conclusion were the matter before us for de novo review, we cannot say that reasonable minds could not have arrived at that conclusion or that the Commission’s opinion fails to display a substantial basis for denial of relief. Consequently, we hold that the Commission’s decision is supported by substantial evidence, and we affirm.
Affirmed.
Mayfield, J., dissents.
There is no issue involved in this case as to whether the appellant suffered from inflammation in her upper right extremity — only what that inflammation meant as to permanent disability is at issue. | [
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John E. Jennings, Judge.
Bruce Payne was convicted of the first degree battery of Tiffany Bailey and of failure to appear. He was sentenced to 20 years imprisonment on the battery charge and 10 years on the failure to appear charge. The trial court ran the sentences concurrently.
On appeal, Payne argues that the evidence at trial was insufficient to support the jury’s verdict. We disagree and affirm.
Bruce Payne was the live-in boyfriend of Shelly Bailey. They lived in Waldron with Ms. Bailey’s 11-month-old daughter, Tiffany.
On August 18, 1984, Payne and Bailey brought Tiffany to the office of Dr. Young in Waldron. The child had a broken neck. Payne told Dr. Young that she had hurt herself falling off a porch step several days before. Payne also told Dr. Young that the night before the child had fallen off a couch. Janis Mays, a social worker who investigated the case later that day, testified that Shelly Bailey, the child’s mother, gave her virtually no explanation for the situation.
Apart from the neck injury, bruises were found on the child’s head, face, tongue, forearm, chest, abdomen, shoulders, hip, and genitals. The child also had multiple rib fractures.
The broken neck was by far the most serious injury to the child. The fracture had dislocated and the spinal cord had been sheared. The medical evidence was that, while the child may have some use of her arms, she will never walk or regain control of her bodily functions.
After examining the child Dr. Young formed a diagnosis of battered child syndrome. He testified that the injuries he observed were not consistent with the history that Payne gave. Payne gave the following written statement to the local sheriff:
On Thursday, August 16,1984,1, Bruce Payne, was taking Tiffany Bailey in my home and I went out the back door to check on my grapes and two or three minutes later she (Tiffany) came to the back door and fell down the rock steps. I picked her up and brought her in and she cried for just a minute so I put her to bed. Shelly was in another part of the house and could see what happened and met me. On Friday, the 17th of August I gave her her bottle on the couch and I was watching T.V. when she fell off the couch on her head. She cried for just a little bit and stopped. Shelley was in the kitchen and heard it happen. She or I put Tiffany to bed. This morning Tiffany did not want to eat or move. That’s the reason we brought her to the doctor.
Sheriff Daggs testified that Payne told him the steps were eight feet tall, but that when he went to the house and located the steps they were only slightly over three feet tall.
Dr. Fulbright, a neurosurgeon, gave his opinion that the child’s injuries were not consistent with the history given by Payne. Dr. Woody, a pediatric neurologist, testified that the injury was not the result of an accident and that the type of force required to produce the neck injury was a direct blow to the neck with a baseball bat.
On appeal, Payne argues that there is no substantial evidence that he was the one to harm the child. While the evidence is admittedly circumstantial we believe it is sufficient to support the jury’s verdict.
Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985), was similar to the case at bar. In Deviney, Michael and Nancy Deviney were convicted of the second degree murder of her 16- month-old son, who died of a fractured skull. There were no witnesses. In addition to the fractured skull, the medical examiner found broken bones in the child’s arm and bruises on the body. He testified that the injuries could not have occurred from falling down steps, as the Devineys contended.
In affirming the convictions we said:
Appellants had exclusive custody and control of Christopher Love. The jury was satisfied that the medical evidence presented at trial connected the couple with the child’s death. Of course, the evidence against them is circumstantial, a not uncommon situation in child abuse cases. The fact that evidence is circumstantial, however, does not render it insubstantial. Holloway v. State, supra. Where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. The question whether circumstantial evidence excludes every other reasonable hypothesis other than guilt is usually reserved for the jury. The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. It is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. The test is whether there was substantial evidence to support the verdict when the evidence is viewed in the light most favorable to the State. Harshaw v. State, 275 Ark. 481, 631 S.W.2d 300 (1982); Darville v. State, 271 Ark. 580, 609 S.W.2d 50 (1980). We believe that when this test is applied to the present case the jury was justified in rendering its guilty verdicts.
In addition, a jury may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1986).
Substantial evidence is that which is more than a scintilla and must do more than create a suspicion of the existence of the fact to be established; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983); Phillips v. State, 271 Ark. 96, 607 S.W.2d 664 (1980). When we consider the defendant’s improbable statement in this case together with the nature of the injuries to the child, the medical opinion evidence, and the defendant’s opportunity, we are persuaded that, taken together, they are sufficient to constitute substantial evidence of guilt. See Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986).
Appellant also argues that the evidence was insufficient to sustain a conviction for failure to appear. Ark. Stat. Ann. § 41-2820 (Repl. 1977) provides that a person commits the offense of failure to appear if subsequent to having been lawfully set at liberty upon condition that he appear at a specified time, place, and court, he fails to appear without reasonable excuse. The commentary to this statute indicates that “reasonable excuse” is a defense.
It was stipulated that appellant did not appear on the date he was originally set for trial. Bob Sharnas, the appellant’s bondsman, testified that on the Thursday before the Monday he was to appear for trial Sharnas attempted to contact Payne and was not able to get Payne to return his calls. He learned that Payne was in the hospital because he had “just flipped out,” and Sharnas went to the hospital in Konawa, Oklahoma. Sharnas was unable to learn anything about Payne’s condition. It does not appear from the record that Payne ever notified the court or his attorney of any problem. The result was that the court convened on the date of trial, with the subpoenaed witnesses present but without the defendant. Payne’s mother testified that when he started to go see his lawyer, right before the trial, he broke down and got sick. Payne offered no medical evidence as to what condition he might have been suffering from.
It was Payne’s obligation to establish to the satisfaction of the jury that he had a reasonable excuse for his failure to appear. On the particular facts of this case we hold that the jury was entitled to find that Payne did not meet his burden in this regard.
Affirmed.
Mayfield and Coulson, JJ., agree. | [
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James R. Cooper, Judge.
The parties in this divorce case were married for approximately 23 years when the appellee filed her complaint for divorce on February 13,1984. Prior to a formal hearing on the complaint, the parties reached an agreement. At a hearing held on April 5, 1984, the terms of the agreement were read into the record. A consent decree based upon the agreement, and approved by both parties’ attorneys, was filed on May 2, 1984. On November 4, 1985, the appellee filed a petition to execute the terms of the decree, alleging that the parties could not comply with the May 1984 consent decree. On January 10,1986, the appellee filed a motion for temporary maintenance and child support. After a hearing on March 3, 1986, the chancellor entered a decree substantially different from the consent decree of May 2,1984. The March 1986 decree required the appellant to pay child support in the amount of $200.00 per month. The appellant failed to pay child support as ordered, and, after a hearing on May 5,1986, he was found to be in willful contempt of court. From that order, and from the decree of March 3, 1986, comes this appeal.
For reversal, the appellant contends that the chancellor erred in requiring him to pay child support; in amending the 1984 consent decree to eliminate the appellee’s obligation to pay the appellant $5,000.00 from the proceeds of the sale of a 230-acre tract of land; in failing to secure for the appellant a coin collection that was part of the property subject to the 1984 agreement; in ordering an automobile sold and the proceeds divided; in ordering that a brass bed and the proceeds from the sale of a bull be divided equally between the parties; and in holding the appellant in contempt of the March 1986 order to pay child support. We affirm in part, and reverse in part.
The May 1984 consent decree awarded custody of the parties’ three minor children to the appellee, and provided that the appellant would have no right of visitation, and no duty to pay child support. The decree further provided that a 230-acre tract of real property held by the parties as tenants by the entirety would be sold to a third party pursuant to an existing contract of sale for a cash purchase price of $65,000.00. The appellant was to receive $5,000.00 out of the proceeds of the sale, and the appellee was to receive all of the remaining proceeds, minus costs of the sale, attorneys’ fees, and satisfaction of an outstanding mortgage on the property. The decree provided that, in the event the contract for the sale of the property was not performed, the parties would take all necessary steps to preserve the full value of the property, and would sell the real property as expediently as possible. With respect to a house and 3/4 of an acre of real property acquired during the marriage, the decree required the appellant to quitclaim his interest therein to the appellee so that full legal title should be vested in her. The appellee was to retain all of the household furniture, appliances, etc., with the exception of certain power tools, books, and magazines that were to be retained by the appellant. A herd of approximately 44 head of cattle was to be sold by the appellee at the best market price obtainable at the earliest possible date; the appellant was to receive $2,500.00, and the appellee was to retain all the remaining cattle, or the proceeds thereof. The appellant was to retain the entire family coin collection and a 1972 GMC pickup truck, while the appellee was to retain a 1968 pickup truck. Finally, the decree provided that “the court retains control of this cause for such further orders and proceeds [sic] as may be necessary to ascertain definitely, and enforce, the rights of the parties hereto in the property herein referred to.”
The record reveals that the parties were unable to carry out the provisions of the May 1984 consent decree. The 230-acre tract did not sell pursuant to the contract of sale that had been in effect at the time the May 1984 decree was rendered. Moreover, a subsequent offer and acceptance agreement for the sale of that property failed as well, because the terms of that agreement were not acceptable to the appellant. The division of the proceeds of the sale of the cattle was frustrated when the parties could not agree upon who was responsible for satisfaction of a $2,150.00 lien against the cattle. The appellee contended she had not been aware of this debt at the time the May 1984 consent decree was entered. Finally, the record shows that the coin collection, which the appellant was to retain under the terms of the May 1984 decree, was never delivered to the appellant, but instead had been sold by the parties’ grown children. The parties’ daughter, Karen, sold some of the coins, and used the proceeds to buy a refrigerator for the appellee. Doug, the parties’ son, sold the remaining coins, and purchased a 1972 automobile with the proceeds. Doug kept the 1972 automobile for himself, and gave his own 1981 pickup truck to the appellee.
On November 4,1985, the appellee filed a petition to execute the terms of the May 1984 decree. Subsequently, she moved for maintenance and child support. A hearing was held on March 3, 1986. In a decree of March 20, 1986, the chancellor found that circumstances arising after the issuance of the May 1984 decree prevented that decree from being carried out completely, but he affirmed the terms of that decree and stated his intent to follow them in spirit. He also found that both parties had been guilty of contemptuous behavior regarding the disposition of marital property: the appellee, by virtue of her failure to prevent Karen and Doug from disposing of the coin collection; and the appellant, for failing to disclose the $2,150.00 lien on the cattle, and for refusing to sign the second offer and acceptance agreement for the sale of the 230-acre tract.
The most salient differences between the May 1984 decree and the decree of March 1986 were that, under the terms of the latter decree, the appellant was no longer to receive $5,000.00 from the sale of the 230-acre tract; the appellant was ordered to pay child support in the amount of $200.00 per month; the appellant was to receive only $420.00 from the appellee as credit for the disposition of the coin collection, and was to pursue any further remedy for the loss of the collection against Karen and Doug, who had sold it; and the parties were to divide equally the proceeds of a bull, which the appellant had sold subsequent to the parties’ separation, but prior to the issuance of the May 1984 decree. Finally, the chancellor ordered that a Lincoln automobile and a brass bed were to be sold at public auction, and the proceeds divided equally between the parties.
The appellant subsequently failed to pay child support as required by the March 1986 decree. In an order filed May 5, 1986, the chancellor found him in contempt, and ordered him to be taken into custody until he purged himself of the contempt by paying the child support arrearages, court costs, and attorney’s fees.
The appellant initially contends that the chancellor erred in requiring him to pay child support. He argues that the chancellor lacked the authority to amend the decree to include a support order, and that, in any event, there was no showing of changed circumstances that would justify the award of child support. We do not agree.
With respect to the appellant’s argument concerning the chancellor’s authority to amend the decree to provide for child support, the general rule is that the court cannot alter or modify an independent contract, incorporated and made part of the divorce decree. McInturff v. McInturff, 7 Ark. App. 116, 644 S.W.2d 618 (1983). An exception to the general rule exists with respect to independent contracts dealing with child support and child custody: such provisions are generally not binding on the courts. Id., 644 S.W.2d 618. Nevertheless, when the parties execute a property and support settlement agreement in which the provisions dealing with property, debt, alimony, and child support constitute reciprocal considerations the court cannot later alter or modify the decree based on such an independent contract unless the parties have provided for or agreed to the modification. Id., 644 S. W.2d 618. The question of the authority of the chancellor to modify the parties’ agreement to provide for child support in the instant case thus involves a two-step analysis: first, was the agreement between the parties which was read into the record at the April 5, 1984, hearing an “independent contract,” and, second, if an independent contract existed, was it an “integrated agreement” in which the property, debt, alimony, and child support provisions constituted reciprocal consideration?
The Arkansas cases dealing with the chancellor’s authority to modify the alimony and child support provisions of a decree based upon an agreement between the parties distinguish between two types of agreements: an “independent contract,” and a “less formal” agreement. The significance of the distinction was pointed out in Seaton v. Seaton, 221 Ark. 778, 255 S.W.2d 954 (1953):
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 husband, 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 ... it does not merge into the court’s award of alimony, and consequently . . . 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’. [Citations omitted.] 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 proof upon an issue not in dispute, and by its nature it merges in the divorce decree.
221 Ark. at 780, 255 S.W.2d at 955-56 (emphasis supplied). Our review of the cases leads us to the conclusion that the question of the existence of an independent contract, as opposed to a mere informal agreement, turns upon the intent of the parties; if they intend that there should be an independent remedy at law upon the agreement in the event that equity declines to enforce its provisions, then the agreement is an independent contract. If, however, the parties merely agree upon the amount to be paid without intending to create an independent cause of action based on the agreement, the agreement is an informal one which the chancellor may modify without doing violence to contractual rights.
Our conclusion that the intent of the parties is the controlling factor in distinguishing between independent contracts and informal agreements is borne out by Law v. Law, 248 Ark. 894, 455 S.W.2d 854 (1970). In Law, the Supreme Court held that the burden of proving that the agreement was an independent contract was on the party so asserting, and, noting that the agreement in that case was not reduced to writing, and was evidenced only by the recitals in the decree, stated that there was nothing in the decree to indicate that the agreement was intended to be anything other than a stipulation as to the amount that the court should fix for alimony; i.e., there was no evidence that the agreement was intended to create an independent cause of action. That the intent of the parties is the determinative factor in distinguishing independent contracts from mere informal agreements is also demonstrated in Songer v. Songer, 267 Ark. 1075, 594 S.W.2d 33 (Ark. App. 1980). The decree in Songer made detailed provisions for alimony, child support, and the division of property. However, when a petition to modify the decree was subsequently presented, the chancellor held that the alimony portion of the decree was not subject to modification because he “had nothing to do with” the division of property. Id. at 1076, 594 S.W.2d at 34. We reversed and remanded that case for a determination of whether the decree should be modified, noting that “there is nothing, written or otherwise, showing intent that any agreement be enforceable separately from the decree.” Id. at 1077, 594 S.W.2d at 35 (emphasis supplied). A final case indicating that the test for distinguishing between an independent contract and an informal agreement is the intent of the parties to create an independently enforceable contract is Armstrong v. Armstrong, 248 Ark. 835, 454 S.W.2d 660 (1970), in which the Supreme Court upheld the chancellor’s finding of an independent contract. In so doing, the Court examined the provisions of the agreement to determine whether they indicated that the parties would have expected the provisions to be subject to subsequent modification; e.g., the Court found the provision of alimony for life or until remarriage to indicate an independent contract, because, under an alimony order entered by the chancellor in the absence of an independent agreement, the amount of alimony payable could be modified or reduced to zero should the wife later become independently wealthy. Likewise, a provision requiring the husband to repay a loan made to him by his wife was seen as indicative of an independent contract, because “it could not have been contemplated that the court would have the right to relieve the appellant of this obligation.” Id. at 840, 454 S.W.2d at 663. The Armstrong Court concluded its inquiry into the particulars of the agreement with the statement that “[t]hese provisions are referred to as a matter of showing that the parties, when entering into their agreement, desired an independent contract that could be enforced in a court of law as well as in chancery.” Id., 454 S.W.2d at 663.
The agreement between the parties in the case at bar is not evidenced in writing, but rather was read into the record at the hearing of April 5, 1984. The agreement made no provision for alimony, and, although there were detailed provisions for the division of marital property, many of these provisions were never carried out. The appellant bears the burden of proving that the agreement constituted an independent contract. Law v. Law, supra. To prevail under the authorities discussed above, he must show that it was the intent of the parties to create an independent cause of action at law in the event that equity declined to enforce the decree. The intent of the parties to create a contract is a question for the finder of fact. R.G. Varner Steel Products, Inc. v. Puterbaugh, 233 Ark. 953, 349 S.W.2d 805 (1961).
Although chancery cases are tried de novo on appeal, the chancellor’s findings of fact will not be reversed unless they are clearly against the preponderance of the evidence. Pennybaker v. Pennybaker, 14 Ark. App. 251, 687 S.W.2d 524 (1985). We review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree. Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984). In the case at bar the record contains testimony by the appellant which, if believed, would tend to show that he consented to give the appellee a larger share of the marital property in exchange for her agreement that he would not be required to pay child support. However, the decree in which the agreement was embodied provided that the chancery court would retain control of this action for further orders and proceedings as might be necessary to further ascertain and enforce the parties’ rights in the property disposed of, which indicates that the parties were willing to look to the chancery court for the enforcement of their rights, rather than pursue an action at law in circuit court. Nowhere in the record is there any clear-cut indication that the parties intended to create a separately enforceable cause of action at law to enforce their agreement. Under these circumstances, and giving due regard to the superior position of the chancellor to assess the credibility of the parties, we hold that the chancellor could properly find that the parties entered into an informal agreement, as opposed to an independent contract. As no independent contract was involved, the chancellor had the authority to modify the decree to provide for child support. Law v. Law, supra; McInturff v. McInturff, supra. Our resolution of this issue makes it unnecessary to decide whether an integrated agreement of the type described in Mclnturff existed.
The appellant next contends that the award of child support was improper because the appellee failed to show a sufficient change in circumstances to justify such an award. We disagree. Although the appellant correctly states that increased child support may be awarded only upon a showing of a sufficient change in circumstances, Glover v. Glover, 268 Ark. 506, 598 S.W.2d 736 (1980), we think that such changed circumstances were present in the case at bar. There was evidence that the failure of the 230-acre farm to sell and the resulting deadlock between the parties created an unanticipated lack of support for the parties’ children. Viewing the evidence in the light most favorable to the appellee, we find that the chancellor’s finding of changed circumstances was not clearly erroneous. In light of our findings that the chancellor had the authority to modify the decree, and that the finding of changed circumstances is supported by the evidence, we hold that the chancellor did not err in ordering the appellant to pay child support.
The appellant next contends that the chancellor erred in amending the May 1984 decree to eliminate the appellee’s obligation to pay the appellant $5,000.00 out of the proceeds of the 230-acre tract. He cites Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983), for the proposition that the chancellor lacked authority to set aside or modify the May 1984 decree. The decree at issue in Harrison recited that the property rights of the parties had been settled, and specifically provided for the disposition of various property. The property rights mentioned in the decree, however, were not at issue in Harrison. Instead, the controversy in that case revolved around the parties’ rights to a sixteen-acre tract not mentioned in the decree. We held that, under those circumstances, the chancellor erred in modifying the decree to determine the parties’ respective interests in the sixteen-acre tract, because the chancellor lacked authority to modify the decree after the lapse of the term of court in which the decree had been entered. Although terms of court have been abolished, this limitation on the power of a court over its final decrees was carried over in ARCP Rule 60(b), which permits the trial court to modify an order or decree within 90 days of its having been filed with the clerk. Id., 655 S.W.2d 466.
The record in the case at bar indicates that the chancellor’s intent in modifying that portion of the decree relating to the division of the proceeds of the sale of the 230-acre tract was not to deprive the appellant of his entire $5,000.00 share awarded in the earlier decree, but instead was to reduce that award by the amount of the lien on the cattle which the appellant failed to disclose at the time of the original agreement. We think that the situation presented in the case at bar is to be distinguished from the circumstances of Harrison. While the sixteen-acre tract in Harrison had never been mentioned in the chancellor’s decree, the May 1984 decree in the case at bar specifically provided for the sale of both the 230-acre tract and the cattle. We find it significant that the May 1984 decree did not simply divide the tract and the cattle in kind between the parties, but instead ordered that this property be sold, with the proceeds of the sale to be divided between the parties at some future date. The situation thus resembles that presented in Carter v. Olsin, 228 Ark. 629, 309 S.W.2d 328 (1958), in which the trial court had ordered a party to replace a fence, and fixed the date for compliance beyond the expiration date of the term of court in which the order was issued. The Carter Court held that the order to replace the fence was, in effect if not in fact, in the nature of a mandatory injunction, and that, under such circumstances, the trial court did not lose control or jurisdiction with the lapse of the term of court. 228 Ark. at 632-32; see also Hardy v. Hardy, 217 Ark. 296, 230 S.W.2d 6 (1950). We hold that the portion of the decree in the case at bar ordering the sale of the 230-acre tract and the cattle was an interlocutory order in the nature of a mandatory injunction, and that the chancery court thus retained jurisdiction with respect to those matters. However, our review of the record leads us to the conclusion that the chancellor’s intent in modifying this portion of the decree was not to deprive the appellant of the entire $5,000.00 proceeds of the sale, but rather was to reduce that award by $2,150.00, the amount of the lien on the cattle. We therefore modify the decree to provide that the appellant is to receive $2,850.00 out of the proceeds of the sale of the 230-acre tract.
As his third point, the appellant contends that the chancellor erred in not fully compensating him for the loss of the coin collection which he was to retain under the terms of the May 1984 decree. The evidence reflects that the appellee did not deliver the coin collection to the appellant after the 230-acre tract failed to sell. She stated that she retained the collection after the sale fell through because she “knew that he wouldn’t give [her] anything.” Subsequently, the parties’ daughter, Karen, sold some of the coins for $420.00, and used the proceeds to buy a refrigerator for the appellee. Doug, the parties’ son, subsequently sold the remaining coins for $1,073.35. He bought an automobile for himself with the proceeds, and gave his own pickup truck to the appellee. Doug testified that he picked up the coins from the appellee’s house. The appellee admitted that she knew what Doug intended to do with the coins when he took them from her house, but that she did not try to prevent him from taking them. In the March 1986 order, the chancellor ordered that the appellee was to credit the appellant $420.00 for the disposition of the coin collection. We note that in his March 1986 decree, the chancellor found the appellee to be guilty of contemptuous conduct for failing to prevent Karen and Doug from disposing of the coin collection.
The chancellor’s award of $420.00 to the appellant was based upon his finding that the appellee benefitted from the sale of the collection to that extent. While we agree that the extent to which the appellee benefitted from the sale is a significant consideration in the resolution of this issue, our de novo review of the record leaves us with the firm conviction that the award of only $420.00 to the appellant is an inequitable result. We think that the appellee also benefitted from the proceeds of Doug’s sale of a portion of the collection, and that benefit is evidenced by the fact that he gave his own pickup truck to the appellee after buying another vehicle with the proceeds of the sale of the coins. Moreover, the record shows that the coins were kept as security after the 230-acre tract did not sell, and that the appellee knew of Doug’s plans to remove the coins from her residence and sell them, yet failed to deter him from doing so. That the appellee could have prevented Doug’s sale of the coins is reflected in the chancellor’s finding that she was guilty of contemptuous conduct for failing to prevent Doug from taking the coins from her residence. While we find that the chancellor properly adopted the appraisal value of the coins as the correct measure of valuation, we hold that he erred in failing to require the appellee to fully reimburse the appellant for the collection’s loss. We therefore modify the decree to require the appellee to credit or reimburse the appellant in the amount of $1,493.35 for the loss of the collection, instead of the $420.00 set out in the March 1986 decree.
Next, the appellant asserts that the chancery court did not have the power to order a Lincoln automobile sold which was owned by the parties prior to the May 1984 decree. We agree. The May 1984 decree does not mention this automobile, although it specifically provided for the disposition of two other vehicles owned by the parties, and there is nothing in the record to indicate that the need to dispose of the Lincoln was called to the chancellor’s attention at the time of the original hearing. To the contrary, the chancellor plainly stated in his March 1986 order that the disposition of the Lincoln was not taken into account in the original decree. Under these circumstances, we think that the chancellor’s modification of the May 1984 order to provide for the disposition of this automobile was erroneous.
Rule 60(b) of the Arkansas Rules of Civil Procedure limits a trial court’s authority to modify a decree to a period of 90 days after it has been filed with the clerk. Although ARCP Rule 60(a) permits trial courts to correct their judgments, this power is confined to correction of the record to make it conform to the action which was actually taken at the time, and does not permit a decree or order to be modified to provide for action that the court, in retrospect, should have taken, but which in fact it did not take. Harrison v. Bradford, supra; ARCP Rule 60(a). Rule 60(c) of the Arkansas Rules of Civil Procedure permits a judgment to be vacated or modified after the expiration of the 90-day period, but the record does not reflect the establishment of any of the grounds set out in Rule 60(c) for modifying the prior order of the court with respect to this issue, and there was no compliance with subsection (1) of that rule, which permits the vacation of judgment and the granting of a new trial on the ground of newly discovered evidence upon a motion for a new trial filed not later than one year after discovery of the grounds, or one year after the judgment was filed, whichever is earlier. No such motion for a new trial was filed by the appellee in the case at bar; instead, she petitioned the trial court to execute the terms of the May 1984 decree, and requested reexamination and modification of it. This petition was filed in November 1985, over one year from the filing of the May 1984 decree. In the absence of a timely motion, the chancellor lacked the authority to adjudicate the parties’ rights in the Lincoln automobile under the authorities cited above. That portion of the March 1986 decree providing for the sale of the Lincoln and the division of the proceeds between the parties is therefore reversed.
The appellant’s contention that the chancellor erred in ordering the division of the proceeds from a bull sold by the appellant after the parties’ separation, but prior to the May 1984 decree, requires similar treatment. Because the bull was sold prior to the issuance of the decree, it was not part of the herd given to the appellee under the terms thereof. As in the case with the Lincoln automobile, the parties’ rights to the proceeds from the bull’s sale simply were not before the chancellor for adjudication when the original decree was issued. Moreover, the appellee does not allege that the appellant fraudulently concealed the fact of the sale, but merely contends on appeal that he failed to notify her after selling the bull. Under these circumstances, grounds for modifying the decree after the expiration of the 90-day period are absent, and the appellee failed to timely move for a new trial on the grounds of newly discovered evidence. ARCP Rule 60; see also Harrison v. Bradford, supra. We therefore hold that the chancellor lacked the authority to order the division of the proceeds of the sale of the bull, and we remand this cause to the chancellor with instructions that he enter an order restoring the proceeds of the sale of the bull, and the Lincoln automobile, or the proceeds of the sale thereof, to the appellant.
The appellant also argues that the chancellor lacked the authority to order the sale of a brass bed. Because the appellee has stipulated on appeal that this bed is the appellant’s property under the terms of the agreement upon which the original decree was based, we hold that the brass bed is the appellant’s property, and order that he be allowed to take possession of it, if he has not yet done so.
Finally, we reach the appellant’s contention that the chancellor erred in finding him in contempt of that portion of the March 1986 decree requiring him to pay child support in the amount of $200.00 per month. The appellant does not deny that he failed to make the support payment as ordered, but contends that the evidence was insufficient to support a finding that he willfully disobeyed the court’s order.
Imprisonment of a divorced husband for failure to pay child support is permitted only in cases where the defendant has the ability to pay, but has willfully disobeyed the order to pay child support. Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983). In the case at bar the appellant testified that he lacked the funds with which to make the required payments, and that he had last had income in June 1985. He also stated that, although he had formerly done sheetrock work, he was no longer able to do so because he was disabled. However, there was also evidence presented to show that the appellant received no disability benefits; that he was an experienced real estate salesman; and that he made no attempt to make even a partial payment of child support subsequent to the March 1986 order. On these facts, and giving due regard to the chancellor’s superior position to assess the credibility of the witnesses, we cannot say that the chancellor’s finding that the appellant willfully failed to comply with the order requiring him to pay child support was clearly erroneous.
Affirmed in part.
Reversed and remanded in part.
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Per Curiam.
Arlie Evans has filed a motion for a rule on the clerk, apparently pursuant to Rule 5 of the Rules of the Supreme Court and Court of Appeals, asking that the clerk be required to file a transcript from the Arkansas Workers’ Compensation Commission as the record on appeal to this court. Attached to the motion is a letter to appellant’s attorney from the deputy executive director of the Commission stating “that the record has been prepared” but that “our office failed to prepare the record within the statutory 90-day time frame.”
This same issue was presented to this court in the case of Davis v. C & M Tractor Company, 2 Ark. App. 150, 617 S.W.2d 382 (1981). In that case, we granted the motion for a rule on the clerk because the statutory procedure for filing appeals from the Commission directly in the Court of Appeals was new and we followed what we thought to be the “spirit” of the decisions of the Arkansas Supreme Court in similar circumstances which had allowed a “short period of grace” before the statutory provisions were routinely applied. We pointed out, however, that “it should be obvious that this action cannot be relied upon in the future.”
Our opinion in Davis also suggested that, since there was no authority for the Commission to extend the 90-day period in which the record could be filed in the appellate court, certiorari might be a vehicle whereby an extension could be accomplished, or, we said, “perhaps the answer is a promulgation of a rule by the Supreme Court.” This is the first time this matter has been presented to us since the Davis case and, according to the Commission’s letter, was caused by a severe backlog in its transcript preparations.
Under these circumstances, we have decided to grant appellant’s motion and are directing the clerk to file the transcript as the record on appeal in this case. We wish to emphasize, however, that we are granting the motion simply because we have heretofore failed to secure the promulgation of a rule taking care of this situation. That rule has now been promulgated and is quoted at the end of this opinion.
We call specific attention to the fact that it is the obligation of the attorney for appellant to see that the record on appeal is filed within the proper period of time. Such attorneys have an obligation to keep in mind the time period involved and to comply with the following rule without depending upon the Commission or anyone else to advise them of the time element involved. This is clearly the thrust of our decision in Davis and definitely forecasts our future intentions with regard to the filing of the record on appeal from decisions of the Commission.
Supreme Court of Arkansas Per Curiam opinion, issued March 30, 1987, reads as follows:
Effective this date Rule 26 of the Arkansas Supreme Court and Court of Appeals is changed to be as follows:
When jurisdiction is conferred by filing, within the time allowed for appeal, a dated and certified copy of the order or judgment appealed from, the clerk of the Supreme Court or Court of Appeals may, upon authorization by the court, issue a writ of certiorari to the clerk of the trial court, the reporter, or any other person charged with the duty of preparing the record on appeal, directing that any omissions or errors in the record be corrected. The writ shall order that the record be completed and certified within thirty days and the explanation for any default in complying with the writ must be made on the return thereof within the time directed. This procedure may be used in appeals of civil, criminal, and administrative agency or commission cases.
Motion for rule on the clerk is granted. | [
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Beth Gladden Coulson, Judge.
The appellant, Leonard McLeroy, brings this appeal from an order of the Faulkner County Circuit Court which denied his petition to set aside an arbitration award. The appellant argues that the arbitration panel exceeded its authority by awarding punitive damages in a suit involving the alleged breach of a lease agreement and that the panel improperly refused to postpone its hearing when a subpoenaed witness left before being called to testify. Both parties cite L.L. Cole & Sons, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984), as determinative of the punitive damages issue and focus on the extent to which this case involves a tortious breach of contract.
We certified this case on April 16, 1987, pursuant to Rule 29(1 )(o) of the Rules of the Supreme Court and Court of Appeals, but the case was returned by the supreme court; accordingly, jurisdiction is with this court. We affirm the circuit court to the extent that it upheld the arbitration panel’s award of compensatory damages, notwithstanding the panel’s refusal to postpone its hearing, because the appellant has failed to bring up a record sufficient for us to determine whether the refusal was improper. However, because we find that the arbitration panel was without authority to make an award of punitive damages, the panel’s award is to that extent invalid on its face, and we modify the circuit court’s order by reducing the amount awarded to the appellee by $2,000.00 (the punitive damages award).
In April of 1981, the parties entered into a lease agreement whereby the appellant leased approximately 120 acres of farm land to the appellee for a period of five years. Sometime in 1983, the appellant notified the appellee that the lease was being terminated. The appellee brought suit seeking damages for wrongful termination, and the appellant counterclaimed. Pursuant to a provision in the lease, the matter was submitted to an arbitration panel. The appellant had subpoenaed a witness to present testimony showing that the appellee had failed to fulfill the terms and conditions of the lease. The witness appeared on the day of the hearing but was not present when called, and the arbitration panel refused to postpone the hearing.
The arbitration panel awarded the appellee compensatory damages for lost profits suffered as a result of the wrongful termination. The panel also found that the appellant’s termination had been wilfull and had been motivated by a desire to benefit from the appellee’s preparation of the land; this finding led to an award of $2,000.00 in punitive damages. The circuit court denied the appellant’s motion to vacate that award, and from that order comes this appeal.
In Arkansas, arbitration is strongly favored by public policy and is looked upon with approval by courts as a less expensive and expeditious means of settling litigation and relieving congested court dockets. Dean Witter Reynolds Inc. v. Deislinger, 289 Ark. 248, 711 S.W.2d 771 (1986). The decision of the arbitration board on all questions of law and fact is conclusive, and the award shall be confirmed unless grounds are established to support vacating or modifying the award. Ark. Stat. Ann. §§ 34-521 — 34-523 (Supp. 1985); Wessell Brothers Foundation Drilling Co. v. Crossett Public School District, No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985).
The fact that parties agree to submit their disputes to arbitration implies an agreement to be bound by the arbitration board’s decision, and every reasonable intendment and presumption is in favor of the award; it should not be vacated unless it clearly appears that it was made without authority, or was the result of fraud or mistake, or misfeasance or malfeasance. Unless the illegality of the decision appears on the face of the award, courts will not interfere merely because the arbitrators have mistaken the law, or decided contrary to the rules of established practice as observed by courts of law and equity. Alexander v. Fletcher, 206 Ark. 906, 175 S.W.2d 196 (1943); Kirsten v. Spears, 44 Ark. 166 (1884).
The appellant argues that the arbitration panel’s decision should have been set aside because the panel improperly refused to postpone its hearing when it was discovered that the appellant’s witness, who had been subpoenaed and had appeared, left before being called to testify. Ark. Stat. Ann. §§ 34-521 and 34-522(4) (Supp. 1985) combine to provide that the grounds for vacating or modifying an arbitration award may include both the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown, and the refusal to hear evidence material to the controversy so as to substantially prejudice the rights of a party. Unfortunately, the proceedings at the arbitration hearing, including the testimony of witnesses and the discussion between counsel for the parties and the panel, were neither transcribed nor recorded, and we are unable to determine whether error occurred.
This court, citing Rule 6 of the Rules of Appellate Procedure, has held that where an appellant has made no attempt to make a record in compliance with the rule, we must presume that the matters presented in an unrecorded hearing support the trial court’s findings. Wagh v. Wagh, 7 Ark. App. 122, 644 S.W.2d 630 (1983). While the record does contain a six paragraph narrative statement of the proceedings at the hearing, there is no indication that this statement was made in compliance with the requirements of subsection (d) of Rule 6, and the statement is otherwise so deficient as a reconstruction of the events at the hearing that we are unable to make a meaningful review on this issue. The burden is upon the appellant to bring up a record sufficient to demonstrate that there was error below. SD Leasing, Inc. v. RNF Corp., 278 Ark. 530, 647 S.W.2d 447 (1983). We find that the appellant failed to meet this burden and have no choice but to affirm the circuit court’s order on this point. SD Leasing, supra.
In arguing the propriety of the arbitration panel’s award of punitive damages, both parties cite L.L. Cole & Sons, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984), and contend that the dispositive issue is whether this action sounds in tort, in contract, or in both. The appellee argues that this case involves tortious conduct by the appellant, and punitive damages could therefore be awarded. The appellant does not dispute that tortious conduct may support an award of punitive damages but argues that the suit was one for breach of contract, and punitive damages are therefore not permissible. We find it unnecessary to determine the extent to which the facts of this case involve either a breach of contract or some element of a tort.
An award of punitive damages under the facts of this case required evidence of tortious conduct. Arkansas law does not permit cases involving torts to be resolved by arbitration. As such, the arbitration panel was without power to rule upon any action by the parties which would have supported an award of punitive damages. Ark. Stat. Ann. § 34-511 (Supp. 1985) provides that sections 34-511 — 34-532 (the Uniform Arbitration Act) do not apply to tort matters. In Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985), our supreme court determined that cases which present questions in the law of torts are not subject to resolution by arbitration. See also Annot., 83 A.L.R. 3d 1037 (1978), Arbitrator’s Power To Award Punitive Damages.
For the foregoing reasons, the circuit court’s order is modified to reflect a reduction of $2,000.00 in the amount awarded to the appellee pursuant to the arbitration panel’s award. The order is otherwise affirmed.
Affirmed as modified.
Cracraft and Jennings, JJ., agree. | [
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Beth Gladden Coulson, Judge.
Appellant, David Miller, was convicted of driving while intoxicated. His sole ground for reversal on appeal is that the trial court erred in finding that the arresting officer had sufficient probable cause to stop him as he was driving. We find no error on the trial court’s part, and, accordingly, we affirm its judgment.
Appellant was arrested in the early morning hours of November 9, 1985. Officers of the Jacksonville Police Department had received a call concerning a fight in progress with weapons on a nightclub parking lot. Patrolman Charles Jenkins arrived at the scene shortly afterward and was told by a nightclub employee that the two men involved in the fight had left five or six minutes earlier. According to the employee, one of the men was very drunk, had been using a long club on his opponent, and had left in a black Ford pickup truck. Jenkins then radioed to the other police units working in Jacksonville at the time to look for “a black Ford pickup truck, with one white male.”
About two or three minutes after hearing the broadcast, Sergeant John Clark saw a black Ford pickup truck about three-fourths of a mile from the site of the nightclub. Clark radioed for a backup before stopping the vehicle. While following the pickup, Sergeant Clark observed the driver negotiate several curves in an erratic manner and travel through one sharp curve down the center of the road.
In the meantime, Officer John Wooley had also heard the call and saw the black pickup run through a stop sign. As he was pulling out in pursuit, he noticed Sergeant Clark’s patrol car move in behind the truck. Officer Wooley then backed up Sergeant Clark, who turned on his blue lights and stopped the vehicle. Sergeant Clark approached the pickup from the driver’s side and saw appellant, from whom a strong odor of intoxicants came, sitting in the driver’s seat. When appellant got out of the passenger compartment, as requested, he stumbled to the back and held on to the vehicle for support. Without administering a field sobriety test, Sergeant Clark placed appellant under arrest for DWI first offense and transported him to the police department. Following a municipal court conviction, appellant appealed to Pulaski County Circuit Court, where he was found guilty and sentenced to ten days in jail with one day credited and nine days suspended, fined $250, and assessed court costs. From that decision this appeal arises.
Appellant argues that, under Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982), and this court’s decision in Van Patten v. State, 16 Ark. App. 83, 697 S.W.2d 919 (1985), the trial court erred in finding that Sergeant Clark had sufficient probable cause to make an investigatory stop of his vehicle. It is his contention that the totality of the circumstances test, as enunciated by the Arkansas Supreme Court in Hill, was not satisfied by the circumstances of the present case.
Recently, in Reeves v. State, 20 Ark. App. 17, 722 S.W.2d 880 (1987), we had occasion to review the line of cases dealing with investigatory stops. We noted that Fourth Amendment protection “against unreasonable searches and seizures” extends to persons driving down the street. It has been held, however, as we observed in Reeves, that, consistent with the Fourth Amendment, police may stop persons on the street or in their vehicles in the absence of either a warrant or probable cause under limited circumstances. Terry v. Ohio, 392 U.S. 1 (1968); Leopold v. State, 15 Ark. App. 292, 692 S.W.2d 780 (1985). One of those limited circumstances involves the investigatory stop. Reeves, 20 Ark. App. at 21.
The test to be applied in determining whether an investigatory stop has been made consistent with the mandates of the Fourth Amendment is a balancing of the nature and quality of the intrusion against the importance of the governmental interests alleged to justify that intrusion. Reeves, 20 Ark. App. at 22; Van Patten v. State, 16 Ark. App. at 85, citing United States v. Hensley, 496 U.S. 221 (1985). Where felonies or crimes involving a threat to public safety are concerned, the government’s interest in solving the crime and promptly detaining the suspect outweighs the individual’s right to be free from a brief stop and detention. Van Patten, supra. This policy consideration appears in A.R.Cr.P. Rule 3.1, which provides in part that:
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.
In determining the reasonableness of the officer’s suspicion, A.R.Cr.P. Rule 2.1 provides the following definition:
“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.
The Arkansas Supreme Court has stated that “[t]he common thread which runs through the decisions makes it clear that the justification for the investigative stops depend[s] upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Hill v. State, 275 Ark. at 80.
In Hill, a police radio broadcast described a late model maroon Ford Thunderbird bearing a license plate with dark blue or black lettering on a white background. The court found that the police had reasonable suspicion to make an investigatory stop of the appellant’s recent model maroon Ford Thunderbird displaying an Oklahoma license plate with a white background and dark letters. The court noted additionally that it was not likely that another vehicle of that description was in the Montgomery-Garland County area at that time.
In contrast to the specificity of the description approved by the Supreme Court in Hill, this court found the information provided in Van Patten v. State, supra, “extremely general” in nature. There, two separate police radio dispatches were broadcast; one notified units of a “loud party” at an apartment complex, and the other indicated that the person causing the disturbance may have left the scene in a brown Jeep. The arresting officer testified that he had observed a Jeep of that description in the vicinity of the disturbance, that the driver was not committing any traffic violations, but that he stopped the vehicle anyway. In reversing the appellant’s conviction, we stated that we did not think the officer had “specific, particular or articulable reasons to suspect that a felony or a misdemeanor involving danger of injury to persons or property had been committed.” 16 Ark. App. at 86.
We distinguished Van Patten in Reeves v. State, supra, where we affirmed a conviction that followed an arrest made in an investigatory stop. In Reeves, the police dispatcher advised officers to be on the lookout for a Jeep, the driver of which was said to be shooting fireworks out of the window and was “possibly DWI.” Not only a license number but the name of the vehicle’s owner was given. The arresting officer testified that, after noticing that the appellant took an unusually long time to pull out of a parking lot onto a highway and verifying the license number, he followed the Jeep for four blocks. Because of the slow rate of speed at which the appellant was traveling and his occasional weaving, the officer concluded that the driver was probably under the influence of alcohol. On the basis of these combined factors, we held that the circumstances amounted to “specific, particularized, and articulable reasons indicating that the person or vehicle may [have been] involved in criminal activity.” Reeves, 20 Ark. App. at 23. The totality of the circumstances in the present case also constitutes specific, particularized, and articulable reasons indicating that appellant was involved in criminal activity — driving while under the influence of alcohol.
Here, after receiving information about an altercation on a nightclub parking lot, Patrolman Jenkins broadcast a notice concerning a white male, armed with a club or similar weapon, driving a black Ford pickup truck. No license plate number was available. By itself, this description is as general in character as the brown Jeep in Van Patten.
What distinguishes this case from Van Patten, however, is the particular set of circumstances which, in our case-by-case approach, we now address. Appellant was not stopped for, nor was he later charged with, the fight on the parking lot. Instead, Officer Clark witnessed him in a black Ford pickup driving around several curves in an erratic manner and taking one especially sharp one down the middle of the road. At this point the stop was made. We found an arresting officer’s observation of a driver moving slowly and occasionally weaving sufficient as specific, particularized, and articulable reasons for concluding that the driver was operating his vehicle while intoxicated in Reeves v. State, supra. The basis for a reasonable suspicion of intoxication is no less compelling in the instant case.
It is important to emphasize that, once Officer Clark observed appellant’s unsteady driving, the original reason for watching for a black Ford pickup — the parking lot brawl — receded to the point of secondary importance. Officer Clark testified that he had two purposes in stopping the truck; one was to investigate the incident at the nightclub, and the other was to apprehend a person who was apparently driving while under the influence of alcohol. However, Officer Clark stated that even if he had not received any information regarding the disturbance at the club, he probably would have pulled appellant over anyway because of his erratic driving.
Appellant points out that he was not charged with running a stop sign, despite Officer Wooley’s testimony that he observed him fail to stop at a four-way stop sign. But Officer Wooley provided backup on the arrest, and the instances of irregular driving witnessed by Officer Clark amounted to sufficient cause to stop appellant on suspicion of DWI. As for appellant’s insistence upon the fact that he was not speeding, we would simply note that in Reeves v. State, supra, no speeding was involved or traffic violations committed.
Under the totality of the circumstances test, we believe that the arresting officer acted properly in making an investigatory stop of appellant’s truck and that the trial court committed no error in this respect.
Affirmed.
Corbin, C.J., and Jennings, J., agree. | [
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Melvin Mayfield, Judge.
This is an appeal from a deficiency judgment of $16,384.80 entered against appellant Ray Womack. On January 13, 1984, appellant’s son, Coy Womack, obtained a $31,301.00 loan from appellee First State Bank of Calico Rock (Bank). As security for the loan, he pledged a used 1974 Wilson trailer, a used 1973 White truck, a used 1974 Challenger mobile home, and another used 1974 Wilson trailer. Appellant Ray Womack also signed the note. Subsequently, the Bank and Coy agreed to substitute a used 1979 Ford tractor for the last listed Wilson trailer. Coy Womack defaulted on the note, the collateral was repossessed and sold, and suit was filed against both Coy and Ray Womack for the deficiency. When Coy filed for bankruptcy and moved to Texas, the Bank proceeded against Ray Womack.
Appellant first argues that the trial court erred in admitting into evidence a handwritten note purporting to establish that the sale of the collateral was conducted in a commercially reasonable manner. Appellee’s only witness was Danny Moser, vice-president of the Bank, who testified to the making of the note, the default, the repossession, the demand for payment, and the notice of sale published in a local newspaper. When Moser attempted to testify about the parties present at the sale, the bids made and the terms of the sale, appellant objected and, on voir dire examination, the witness disclosed that he had not been present at the sale and had learned everything he knew about the sale from the bank president, Davey Wyatt. Appellant’s objection to Moser’s testimony about what took place at the sale was sustained as inadmissible hearsay. Appellee then introduced two pieces of paper containing the bank logo at the top on which were notations handwritten in ink. Moser identified these as being written by Wyatt, who had been present at the sale, and contended they showed who attended the sale and what prices had been bid for each item. These two memos were admitted, under the business records exception to the hearsay rule, as evidence that the sale was commercially reasonable. Appellant argues that admission of this evidence was error and that without it there was no proof that the sale was conducted in a commercially reasonable manner. We agree with appellant that these notations did not meet the criteria necessary to be admissible under the business records exception to the hearsay rule.
A.R.E. Rule 801 defines hearsay as a statement, other than one made by the declarant while testifying at the trial, offered in evidence to prove the truth of the matter asserted. Rule 802 provides that hearsay is not admissible. Rule 803 sets out numerous exceptions to the hearsay rule where evidence is held admissible because of its innate reliability. One of these exceptions is known as the “business records exception.”
In Cates v. State, 267 Ark. 726, 589 S.W.2d 598 (Ark. App. 1979), it was explained that under the business records exception seven factors must be present for a record to be admissible. The document must be: (1) a record or other compilation (2) of acts or events (3) made at or near the time the acts occurred (4) by a person with knowledge (or from information transmitted by such a person) (5) kept in the course of a regularly conducted business (6) which has a regular practice of recording such information (7) all as shown by the testimony of the custodian or other qualified witness.
When we apply the facts of the case at bar to these criteria, the memos fail to qualify as a business record for at least two reasons. Even if we accept the Bank’s assertion that these notes, jotted down on what appear to be loose pages taken from a memo or scratch pad, were intended by the president of the bank to preserve the terms of a sale of collateral which the Bank would later be required to prove was conducted in a commercially reasonable manner in order to collect a deficiency judgment, there is no evidence in the record to indicate that these notations were made at or near the time the sale took place. Moser simply testified that the notes were written on stationery from one of the bank’s note pads and that he recognized the handwriting as Wyatt’s. And, in the second place, the record is devoid of any evidence from which we can conclude that Moser was the custodian of the records or otherwise a qualified witness through which these papers could be introduced.
When these notes are excluded, the only evidence that the sale was conducted in a commercially reasonable manner is the notice published in the newspaper and that alone is insufficient to support a proper sale. Therefore, we reverse the award of a deficiency judgment. However, our ruling does not require dismissal. The general rule is to remand common law cases for new trial; it is only when the record affirmatively shows that there can be no recovery on remand that we dismiss. St. Louis Southwestern Railway Co. v. Clemons, 242 Ark. 707, 415 S.W.2d 332 (1967). Where there is a simple failure of proof, justice would demand that the case be remanded to allow the appellee an opportunity to supply the defect. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108 (1892). See also Follett v. Jones, 252 Ark. 950, 481 S.W.2d 713 (1972); Colonial Life & Accident Insurance Co. v. Whitley, 10 Ark. App. 304, 664 S.W.2d 488 (1984).
Because we are remanding this case, other issues that may arise on retrial will be discussed. First, we examine what constitutes a commercially reasonable sale. Ark. Stat. Ann. § 85-9-504(3) (Supp. 1985) of the Uniform Commercial Code provides:
Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable.
At this point, we call attention to the recent case of First State Bank of Morrilton v. Hallett, 291 Ark. 37, 722 S.W.2d 555 (1987), where the Arkansas Supreme Court held that if collateral is not disposed of according to the Code, the creditor is not entitled to a deficiency judgment. This case should be remembered while considering the rulings in previous cases dealing with this subject.
Whether a sale was conducted in a commercially reasonable manner is a fact question to be determined from the facts of the particular case under consideration. Becknell v. Quinn, 592 F. Supp. 102 (E.D. Ark. 1983). It seems to be generally understood that when the debtor was not given written notice of the time and place of the sale, the sale was not conducted according to the provisions of the Code. See Hallett, supra; Rhodes v. Oaklawn Bank, 279 Ark. 51, 648 S.W.2d 470 (1983); Universal C.I.T. Credit Co. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970); Barker v. Horn, 245 Ark. 315, 432 S.W.2d 21 (1968); and Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966).
Other situations in which a sale has been held not to have been commercially reasonable include when the creditor removed the motor from a repossessed combine and lent it to another customer for several months, thus rendering the combine unsalable for that period of time, Henry v. Trickey, 9 Ark. App. 47,653 S.W.2d 138 (1983); when the sale was conducted after a short advertising period, the equipment was complex and the auctioneer was given no technical assistance, and there was a great disparity between the price received and the estimated value of the collateral, United States v. Conrad Publishing Co., 589 F.2d 949 (8th Cir. 1978); when there was minimal publicizing of the sale, short notice, no preparation of the collateral, and a large discrepancy between the sale price and the fair market value, Connex Press, Inc. v. International Airmotive, Inc., 436 F. Supp. 51 (D.D.C. 1977); see also Farmers and Merchants Bank v. Barnes, 17 Ark. App. 139, 705 S.W.2d 450 (1986); and when there was an absence of any notice to the public, the sale was conducted at the creditor’s office with only the creditor’s employees present, and the creditor purchased the collateral, Benton v. General Mobile Homes, Inc., 13 Ark. App. 8, 678 S.W.2d 774 (1984).
While a low price is not conclusive proof that a sale has not been commercially reasonable, a large discrepancy between sales price and fair market value “signals a need for close scrutiny” of the sale procedures. Connex Press, supra; Ark. Stat. Ann. § 85-9-507(2) (Supp. 1985). In White & Summers, Uniform Commercial Code, § 26-11 (2d ed. 1980), the authors suggest that even in cases which cite the failure to give proper notice as the reason for holding that a sale was not commercially reasonable, the true, though unarticulated reason, may be an insufficiency of the sale price. Footnote 117 states:
Although courts frequently rely on lack of notice, they seldom mention any causal connection between the debtor’s injury and his failure to receive notice; there is no suggestion that he would have redeemed or have been otherwise moved to action by receipt of a notice. Hidden among the facts are some interesting data on the resale prices. See, e.g., Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538, 3 UCC 119 (1966) (car purchased for more than $350 in September resold for $75 in January); Baber v. Williams Ford Co., 239 Ark. 1054, 396 S.W.2d 302, 3 UCC 83 (1965) (car purchased in August for at least $882, including interest but not including downpayment, and resold, apparently in December, for $210); Braswell v. American Nat’l Bank, 117 Ga. App. 699, 161 S.E.2d 420, 5 UCC 420 (1968) (car purchased for $2,195, excluding interest but including downpayment, and resold, apparently after only a few months, for $850); Central Budget Corp. v. Garrett, 48 A.D.2d 825, 368 N.Y.S.2d 268, 17 UCC 327 (1975) (car purchased for over $1,600 sold at auction three months later for $300).
The authors conclude that given an unusually low sale price little more is needed for the courts to find the sale commercially unreasonable.
Sale price was recently discussed by the Arkansas Supreme Court in Thrower v. Union Lincoln-Mercury, Inc., 282 Ark. 585, 670 S.W.2d 430 (1984).
[Section] 85-9-507(2) states in part: “The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.” Also, whether the collateral is sold wholesale instead of retail is not necessarily determinative of commercial unreasonableness. . .Any difference between the fair market value and the price actually received, however, is ordinarily a material consideration, but this fact must be examined in light of all aspects of the sale to determine commercial reasonableness.
282 Ark. at 590 (citations omitted). See also, Harper v. Wheatley Implement Co., Inc., 278 Ark. 27, 643 S.W.2d 537 (1982).
We next discuss the appellant’s argument that the trial court erred in refusing to hold that he was discharged from liability because the promissory note sued upon had been materially altered. It was undisputed that after appellant had signed the note the Bank and Coy Womack agreed to delete the last item of collateral, a used 1974 Wilson trailer, and substitute a used 1979 Ford tractor, without appellant’s knowledge or consent. It was also undisputed that the Bank discovered when it was repossess ing the collateral that this Ford tractor had a prior lien against it for $22,000. Appellant contends that this alteration on the face of the note discharged him. He relies on Merchants National Bank of Fort Smith v. Blass, 282 Ark. 497, 669 S.W.2d 195 (1984), as support for this contention. In that case, the court stated that, “Arkansas has adopted the well settled principle of law ‘that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him.’ ” Other cases are relied on by appellant as support for the same proposition.
Appellant continues this argument, in a different vein, by contending he should be released from liability under Ark. Stat. Ann. § 85-3-606(1 )(b) (Add. 1961) because, by substituting the encumbered tractor for the unencumbered trailer, the Bank impaired its collateral. That section provides:
(1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder
(b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.
Appellee responds to these arguments by insisting that appellant was not a guarantor but a comaker and thus jointly liable on the note. It also argues that appellant cannot be discharged from liability unless the alteration of the note was both material and fraudulent. And appellee contends that, in any event, the appellant would be discharged only to the extent of the value of the collateral released by appellee.
As to the guarantor versus comaker issue, we do not agree with appellee’s argument that Ark. Stat. Ann. § 85-3-416 (Add. 1961) prevents appellant from being treated as a guarantor in this case. That section of the Uniform Commercial Code does not require that words of guaranty must be used before one can be treated as a guarantor. It only explains the meaning and the effect of certain expressions of guaranty. The “Comment to Uniform Commercial Code,” appearing under this section, makes this clear by stating that the purpose of the section is to state “the commercial understanding as to the meaning and effect of words of guaranty added to a signature.” The issue in the instant case is whether the appellant was an accommodation party under section 85-3-415 of the Code. White & Summers, Uniform Commercial Code, § 13-12 at 517-18 (2d ed. 1980), states that:
Under the Code the word “surety” includes all “guarantors” and all “accommodation parties.” A “guarantor” differs from an “accommodation party” only because he has added some words to his signature and has so altered (slightly or greatly) the liability he would have had if he had simply put his signature on the instrument as a mine-run accommodation party. Section 3-415(1) defines an accommodation party as “one who signs the instrument in any capacity for the purpose of lending his name to another party to it.” Section 3-415(2) tells us that an accommodation party “is liable in the capacity in which he has signed.” Thus an accommodation party may appear on the instrument as a maker, acceptor, drawer or indorser and his liability is governed by the Code sections on the contracts of parties who sign in these capacities.
The question of whether one is an accommodation signer was discussed in Riegler v. Riegler, 244 Ark. 483, 426 S.W.2d 789 (1968). That case holds that the issue is one of fact and the burden of proof is on the party claiming to be an accommodation signer. Riegler v. Riegler was cited by the Supreme Court of Rhode Island in Kerney v. Kerney, 386 A.2d 1100, 1102 (R.I. 1978), where that court stated that “the most significant element in determining whether a party to a note is an accommodation party is the intention of the parties: but if no intention is expressed “the purpose of the note becomes the significant element” and where a person “receives no direct benefit from the execution of the paper it is likely that he will be regarded as an accommodation party.” See also Farmers State Bank of Oakley v. Cooper, 608 P.2d 929 (Kan. 1980), where the court applying the “proceeds” and “purpose” tests found the defendant’s status to be one of accommodation since he received no benefits from the proceeds of the instrument and his signature was needed by the maker of the note in order to obtain the loan.
In the instant case, we hold that the question of whether appellant was an accommodation signer is an issue of fact to be decided on the evidence presented in the retrial of this case. We do not agree with appellant’s contention that the doctrine of judicial estoppel is involved here or that the doctrine prevents the guarantor versus comaker issue from being decided in the new trial.
On the issue of appellant’s discharge from liability because of alteration of the note, we think the law needs to be put in proper focus in order to reveal the factual issues to be presented to the fact finder. First, we look at Ark. Stat. Ann. § 85-3-407, which deals with the alteration of an instrument. Section (1) of that statute provides that any alteration is material if it changes the contract in any respect, and section (2) provides that against any person other than a subsequent holder in due course, an alteration by the holder that is both material and fraudulent discharges any party whose contract is thereby changed unless that party assents or is precluded from asserting the defense; and section (2)(b) provides “no other alteration discharges any party.” Also, Comment (3)(b) to the statute states that a material alteration does not discharge any party unless it is made for a fraudulent purpose. Moreover, in the Merchants National Bank of Fort Smith v. Blass case, supra, the court said:
We agree with the Appellant that the alterations on the face of the note in question, when taken alone, did not discharge Appellee from liability. Ark. Stat. Ann. § 85-3-407(2)(a) (Add. 1961), expressly provides that to discharge a party to the contract an alteration must be both fraudulent and material. Here, there is no evidence of fraud.
282 Ark. at 499. See also, Bank of Ripley v. Sadler, 671 S.W.2d 454, 458 (Tenn. 1984) (“We agree that a finding that an alteration is both material and fraudulent is necessary to discharge a surety . . .”).
Of course, we do not know what evidence will be presented in the retrial of this case but even if there is no evidence of a fraudulent alteration, the question of appellant’s discharge is not completely answered. We must now look at Ark. Stat. Ann. § 85-3-606 (Add. 1961). White & Summers, Uniform Commercial Code, § 13-14 at 524-25 (2d ed. 1980), discusses this section as follows:
Section 3-606( 1)(a) specifies changes in the legal relationship between debtor and creditor that discharge the surety. When, without the surety’s consent the holder “releases or agrees not to sue ... or agrees to suspend the right to enforce ... the instrument or collateral or otherwise discharges” the principal debtor, the surety is discharged
Under section 3-606(l)(b) the surety is also discharged when, without his consent, the creditor “unjustifiably impairs any collateral for the instrument.”
The case of Bank of Ripley v. Sadler, 671 S.W.2d 454 (Tenn. 1984), which we have previously cited, is also applicable on this point. In that case, the appellee, Sadler, endorsed a note made to a bank by two of his employees who were buying his construction business. The employees defaulted on the note and the bank sued Sadler for the balance due. It was held that Sadler was an accommodation party to the note and that he was not discharged under the provisions of section 3-407 of the Commercial Code because there was no fraudulent alteration of the note by the bank. The court then considered section 3-606 of the Code. The bank had granted the employees an extension of the note and had raised the interest rate from 9lA% to 10%. Although Sadler contended that he had not agreed to this action by the bank, the court held that “the terms of the note permitted the extension agreement.” 671 S.W.2d at 458. The court found that the increase in interest rate was not fraudulent under section 3-407 of the Code but did not discuss section 3-606 as to this point. However, it is plain that this increase in interest rate did not violate section 3-606(1 )(a) as it did not release the makers of the note or suspend the right to enforce the note. The court did, however, discuss section 3-606(1 )(b) which provides for the discharge of a party to the note “to the extent” that without such party’s consent the holder unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.
The impairment issue mainly involved the bank’s release of the title to a pickup truck, so that it could be sold by makers of the note, plus a check from an insurance company received by the makers for the fire loss of another vehicle. These vehicles were part of the collateral securing the note to the bank. The proceeds of the sale and the check were given to the bank for application on the note. Sadler argued that this “unjustifiably” impaired the collateral for the note as it affected the assets of the business and his right of subrogation against the collateral. The court made two findings that have special significance in the instant case. One, it was held that the test of whether a secured party has unjustifiably impaired collateral not in his possession is “that of reasonable care under all the relevant circumstances of the case.” Two, it was held that if impairment does occur the discharge of the surety is pro tanto only. This last holding is in keeping with section 3-606 which provides that a party’s discharge is “to the extent” that the collateral is unjustifiably impaired. This was also the view taken by the court in Farmers State Bank of Oakley v. Cooper, 608 P.2d 929 (Kan. 1980), and Sadler and Cooper also hold that the burden of proving the monetary extent to which the collateral has been impaired is upon the party claiming the impairment. Our own case of Van Balen v. Peoples Bank & Trust Co., 3 Ark. App. 243, 626 S.W.2d 205 (1981), also held that the amount of the impairment of the collateral is the limit of the right to be discharged. And we also said that section 3-606 of the Code, Ark. Stat. Ann. § 85-3-606 (Add. 1961), places the burden of proving the collateral was unjustifiably impaired and the extent thereof upon the party who seeks a discharge of all or part of his obligation.
We pause here to note that Van Balen discussed a point that appears sure to arise in another trial of the instant case. The opinion refers to a case where impairment of the collateral (failure to perfect a lien on pledged corporate stock) did not effect a discharge upon a guarantor because it was shown that the stock had no value. This is significant in the present case both on the question of extent of the impairment and its pro tanto discharge, and as to the reasonableness of the Bank’s action, under all the circumstances, in substituting the Ford tractor for the Wilson trailer as collateral on the note in this case.
We also point out that we have carefully considered the cases of National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963); Spears v. El Dorado Foundry, Machine & Supply Company, 242 Ark. 590, 414 S.W.2d 622 (1967); and Moore v. First National Bank of Hot Springs, 3 Ark. App. 146, 623 S.W.2d 530 (1981). These cases, and others like them, are relied upon by the appellant for their holdings that a guarantor, or surety, is a favorite of the law and his liability is not to be extended beyond the express terms of his agreement and that a material alteration of the obligation, without his assent, will discharge him. None of those cases, however, involved the obligation of a guarantor or surety as fixed by the Uniform Commercial Code. The agreements in those cases were guaranty agreements made by the parties outside of and not governed by the provisions of the Commercial Code. Moreover, the alterations of the obligations guaranteed were such that entirely new obligations were created and, under those circumstances, the guarantors or sureties were fully discharged. Even under the Code, this result can be possible in a proper case. See Langeveld v. L.R.Z.H. Corporation, 376 A.2d 931 (N.J. 1977), where the court read the Code as providing for release of a surety, where the collateral has been unjustifiably impaired, to the extent that the impairment “can be measured in monetary terms.” However, the court said:
The effect of the impairment upon one secondarily liable may or may not be translatable into dollars. There may be clear prejudice without precisely calculable loss. This will normally result in the discharge of the surety.
376 A.2d at 937.
Finally, appellant argues the trial court erred in not setting aside the judgment after it was learned that another attorney from the firm which represented the Bank at trial (different attorneys represent the Bank in this appeal) had represented Coy Womack when repossession of the collateral first began. The appellant, Coy’s father, only discovered this previous relationship some two months after the entering of the judgment against him. He then filed a motion to have the judgment set aside for this reason. The motion was denied. Appellant contends Rules 1.7 and 1.9 of the Model Rules of Professional Conduct, see 287 Ark. 499, 702 S.W.2d 326 (1985), prohibit counsel from representing a client when he may have a conflict of interest and cites numerous cases stating this rule. He asserts that because an attorney made a few phone calls on behalf of Coy Womack when the Bank first began repossessing the collateral, the attorney’s firm should have declined subsequent representation of the Bank in the deficiency action. Appellant directs us to no cases, and we have found none, in which a conflict of interest by counsel was held to be grounds for setting aside a judgment.
Rule 1.7 provides that a lawyer shall not represent a client if the representation will be directly adverse to another client unless he reasonably believes the representation will not adversely affect the relationship with the other client. The appellee submits that this rule has not been violated as its trial counsel never represented appellant and the representation of Coy Womack ceased long before trial counsel accepted representation of the Bank in this case.
Rule 1.9 prohibits a lawyer of a former client from subsequently representing another person in the same or substantially related matters. Appellee contends this rule has not been violated because it was not in effect at the time of this trial and that the introduction to the rules states their purpose will be subverted if they are invoked by opposing parties as procedural weapons. Under the circumstances, we cannot say that the trial court’s refusal to set aside the judgment in this case was erroneous. Since the attorneys who represented appellee at the trial have now been permitted to withdraw, this issue should not arise in the retrial of this case.
Because of the error in admitting into evidence the written notes alleged to have been made by the president of the appellee Bank at the time of the sale of the collateral, the judgment is reversed and the case remanded for a new trial. We have attempted to fully discuss the law with respect to the issues which we think may arise in a new trial. We remand for a new trial consistent with the law set out in this opinion.
Reversed and remanded.
Cracraft, J., agrees.
Jennings, J., concurs. | [
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George K. Cracraft, Judge.
Dalton L. Smith appeals from an order of the Arkansas Workers’ Compensation Commission denying him benefits under the rule announced in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). In order for the Shippers defense to apply three factors must be proved: (1) the employee must have knowingly and willfully made a false representation as to his physical condition on an employment application; (2) the employer must have relied on the false representation and that reliance must have been a substantial factor in the hiring; and (3) there must be a causal connection between the previous condition about which the representation was made and the injury for which the claimant seeks compensation.
The appellant concedes that the evidence supports both the finding that he had injured his lumbar spine on at least two occasions prior to his employment application and the finding that he willfully and knowingly misrepresented that fact in that application. He contends only that the evidence is insufficient to support the finding that there was a causal connection between the two injuries. Appellant argues that, as there was no expert medical testimony relative to a causal connection between the two injuries, the Commission could not find such a connection. We do not agree.
Our court has ruled that ordinarily a claimant can sustain his burden of proving a causal connection between his injury and his work by either medical or lay testimony and that awards in all cases need not be accompanied by a definite medical diagnosis. In appropriate circumstances, awards may be made when medical evidence is inconclusive, indecisive, fragmentary, or even nonexistent. American Can Co. v. McConnell, 266 Ark. 741, 587 S.W.2d 583 (1979); Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 (1974); Crain Burton Ford Co. v. Rogers, 12 Ark. App. 246, 674 S.W.2d 944 (1984). It is apparent, however, that the court has required more convincing evidence in those cases where the Shippers defense is in issue. The rule seems to be now well settled that the Commission’s finding of causal connection must be based on expert medical testimony except in the most obvious cases. DeFrancisco v. Arkansas Kraft Corp., 5 Ark. App. 195, 636 S.W.2d 291 (1982); Baldwin v. Club Products Co., 270 Ark. 155, 604 S.W.2d 568 (Ark. App. 1980). Our standard of review of workers’ compensation cases, however, is to determine if the finding of the Commission is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979).
The appellant was employed by appellee in February of 1985. In July of 1985, he experienced back pain while in the course of ordinary and normal activity and which did not result from extraordinary trauma. The medical reports showed a bulging disc at the L4-5 level resulting in L4-5 nerve root compression. The evidence indicated that in October of 1983 he was diagnosed with disc impairment at the L4 and L5 levels, and that degenerative changes in the facet joints in that area were observed. Both the 1983 and 1985 injuries were in precisely the same area and were of the same type. At the time the injury occurred, the appellant was doing nothing unusual and was performing the usual and customary duties of his employment. These factors are supportive of the Commission’s finding as to the obvious nature of the causal connection. We cannot conclude that the finding is not supported by substantial evidence.
The appellant next contends that the defense of misrepresentation should be abolished because there is no prohibition against misrepresentation contained in the Workers’ Compensation Act. He argues that it was a duty of the court to interpret the act and, as the act is silent as to the effect of false representations, the court should not have entered that area.
This argument was advanced and rejected in Shippers. The court recognized that the statute was silent as to the effect of false misrepresentations except in case of occupational diseases. The court held that public policy requires an obligation on the part of an employee, upon inquiry, to be truthful to the employer about pre-employment health conditions. The court concluded that “public policy, in the absence of a clear legislative intent to the contrary,” required the application of the rule it adopted. The legislature has met on several occasions since that opinion was rendered and has not seen fit to declare a different legislative intent. The court of appeals has adhered to that rule on numerous occasions since Shippers. We conclude that the rule is a sound one and decline to now reconsider it.
Affirmed.
Corbin, C.J., and Cooper, J., agree. | [
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Melvin Mayfield, Judge.
In an unpublished opinion, handed down by a division of this court on February 4,1987, the judgment of the circuit court was reversed and this case was dismissed. Petition for rehearing was filed, and pursuant to Ark. Stat. Ann. §22-1211 (Supp. 1985), the court en banc has decided the petition should be granted to the extent that the judgment should be reversed and remanded rather than reversed and dismissed.
FACTUAL BACKGROUND
This is a suit on an insurance policy. The jury found for the appellee William B. Graves, individually and as Special Administrator of the Estate of Linda Graves, deceased. In appeals from cases tried by a jury, we view the evidence in the light most favorable to the appellee and, where there is substantial evidence to support the verdict, we do not disturb it. Duggar v. Arrow Coach Lines, Inc., 288 Ark. 522, 707 S.W.2d 316 (1986). In this case, there is evidence in the record from which the jury could find the following facts.
William and Linda Graves operated a retail grocery store in West Memphis, Arkansas. Eddie Lucas was a potato chip salesman who operated a route and serviced the Graves store. Mr. Lucas decided to quit the potato chip business and start selling insurance. He studied “a book on the rules and regulations of the Arkansas laws” and passed a test and obtained a license of some kind. He then became associated with Aubrey Holt who was an agent for the appellant Time Insurance Company. Holt testified that he was a general agent for Time, but his contract provided he was authorized to write and submit applications for insurance to Time and that he was responsible for “asking all questions and correctly recording all answers on applications for insurance and for immediately sending such applications to the Home Office of the Company. ...”
There was testimony that Mr. Lucas, after he left the potato chip business, tried to sell Time insurance to the Graveses, as well as to other people. Because of his prior business relationship with the Graveses, Mr. Lucas knew that Linda Graves had been operated on for cancer. However, he told her that he could insure her with Time and that this insurance would provide her coverage for her preexisting condition. The Graveses expressed concern about this since they already had insurance, written by Pacific Mutual, which had been paying for Linda’s visits to the doctor’s office. So, Mr. Lucas took that policy and, after a couple of days, came back and told the Graveses that it would only be a change from one company to another. In response to specific questions, Lucas assured the Graveses that the Time policy would “fully” cover them and would pick up from where the other one left off.
Before either William or Linda Graves would agree to buy the insurance, Linda called her doctor’s office, while Lucas was in the Graveses’ store, and got a medical assistant to talk to Lucas over the telephone. The assistant testified that she told Lucas that Linda had an operation for removal of a cancer in 1977, and had received favorable reports from regular checkups since then, and she did not want to see Linda change insurance policies because of her condition. She testified that Lucas said there would be no problem, that Linda could be covered with Time insurance, and that there would be no rider providing that cancer would not be covered.
Both William and Linda Graves testified that Lucas took their application and that Aubrey Holt was not present and that he never talked to either of them about the application. They also testified that they correctly and truthfully answered each question asked by Mr. Lucas, that they signed the application but did not read it, and that they did not read the policy when it was delivered to them. The application, however, is not signed by Eddie Lucas, but by Aubrey Holt, and Holt admitted that Lucas brought the application to him with a portion of it filled out by Lucas. The application is dated March 21,1981, and contains the following statement immediately over the signature of Holt:
Each application question was asked by me personally of the applicant(s) and all answers have been accurately recorded. I have witnessed the signing of this application by the applicant(s).
At the trial, Mike Steinhart, Vice-President of Time Insurance Company, and responsible for underwriting and claims of individual insurance policies, testified that Mr. Holt was an agent for the company and that it was the agent’s obligation to ask the questions and record the answers on the application in a correct manner.
The application contains two questions which are incorrectly answered in the negative so as to reflect that no person proposed to be insured had suffered from a disorder of the generative organs or undergone surgery within the last ten years. Another question which asked if any person proposed to be insured had been diagnosed or treated for cancer, tumor, cyst, or growth, within the last ten years, was not answered. Holt testified that he received an amendment to the application from the company that contained the question about cancer which had not been answered on the application. The amendment already had the word “no” typed on it and Holt said he got Mr. Graves to sign the amendment when he delivered the policy to Graves. The policy shows that William B. Graves is the insured and the application shows that Linda is his spouse and is to be insured also. The amendment to the application states that William B. Graves hereby amends “my application” as follows:
Question 17H: Ever had any indication, diagnosis, or treatment of: Cancer, Tumor, Cyst or Growth of any kind? No.
Graves testified that the amendment to the application contained his signature, but he did not remember signing it. He said he recalled signing some statements for Lucas; that he never signed anything for anyone else; that if Lucas asked him to sign some papers about the insurance, he signed them; and that he considered Lucas to be an honorable man. The amendment is addressed to Mr. Graves and contains no reference to Mrs. Graves. We think the jury could find that Mr. Graves’ signature on the application did not constitute an untruthful statement as to the preexisting condition of Mrs. Graves.
Graves also testified that he dropped his other insurance when he received the Time policy. The evidence also shows that Time tried to cancel its policy, more than a year after it was issued, because a claim had been filed for Mrs. Graves and the home office of Time learned of her past medical history from her doctor. This suit was then brought to recover for her medical expense. Mrs. Graves died shortly before this case was tried, and her husband was appointed Special Administrator of her estate and made a party to this suit in that capacity. Linda’s deposition was taken shortly before her death and a portion of that deposition was read into evidence at trial. The jury returned a verdict in the amount asked for, and the judgment included statutory penalty and attorney’s fees.
ESTOPPEL
The appellant’s first point on appeal was that the court should have granted its motion for directed verdict. This contention was based on the proposition that the policy provided that it would pay for medical expenses resulting from sickness “which first manifests itself more than 15 days after this policy is in force.” The appellee argued that the appellant was estopped to raise this question of coverage because of the complete disclosure made to Eddie Lucas who failed to correctly record the disclosed information on the application but specifically assured the Graveses that Time’s policy would cover Linda’s preexisting condition. In the unpublished opinion of this court, it was held that estoppel did not apply because that doctrine cannot be invoked to extend coverage and thereby bring within coverage of the policy risks not covered by its terms. We are now convinced that opinion was not correct.
Although the rule set out in that opinion is generally applicable, it is not always applicable. 16B Appleman, Insurance Law and Practice § 9090, at 590-98 (rev. vol. 1981) states some restrictions upon the general rule as follows:
An insurer also may, by its actions, waive, or be estopped from claiming, a defense of noncoverage. . . . The insurer clearly may be estopped to take advantage of a policy provision or limitation inserted in the contract for its own benefit which would frustrate the insured’s purposes in applying for the insurance. And an insurer which has misled the insured into believing that a particular risk is within the coverage of the insurance contract will not be permitted to use the contract itself to prove the contrary.
The opinion in National Discount Shoes, Inc. v. Royal Globe Insurance Co., 424 N.E.2d 1166 (Ill. App. 1981), cites the above section of Appleman’s treatise as authority for this statement: “While it has frequently been stated, as an axiom, that coverage can never be extended by waiver and estoppel, in fact such statements are too broad.” And in Harr v. Allstate Insurance Company, 255 A.2d 208 (N.J. 1969), the court discussed this matter extensively and decided to follow the decisions that utilize estoppel to broaden coverage and to bar the defense of noncover-age. The court explained its position as follows:
These decisions all proceed on the thesis that where an insurer or its agent misrepresents, even though innocently, the coverage of an insurance contract, or the exclusions therefrom, to an insured before or at the inception of the contract, and the insured reasonably relies thereupon to his ultimate detriment, the insurer is estopped to deny coverage after a loss on a risk or from a peril actually not covered by the terms of the policy. The proposition is one of elementary and simple justice. By justifiably relying on the insurer’s superior knowledge, the insured has been prevented from procuring the desired coverage elsewhere. To reject this approach because a new contract is thereby made for the parties would be an unfortunate triumph of form over substance.
255 A.2d at 219. This opinion also quoted the following excerpt from a law review article, written by Professor Clarence Morris, Waiver and Estoppel in Insurance Policy Litigation, 105 U. Pa. L. Rev. 925 (1957):
Indexes to the great nineteenth century insurance texts do not list waiver and estoppel. But times have changed. The 1951 third edition of Vance on Insurance enfolds an excellent and important seventy-six page “Waiver & Estoppel” chapter — about a fourteenth of the book’s bulk. What has fostered this growth in the last hundred years? My thesis is that waiver and estoppel are two of several guises that cloak the courts’ part in changing insurance from a service safely bought only by sophisticated businessmen to a commodity bought with confidence by untrained consumers. Judges, at the urging of policyholders’ advocates, have used waiver and estoppel to convert insurance from a custom-made document designed in part by knowing buyers to a brand-name staple sold over the counter by mine-run salesmen to the trusting public.
In Hully v. Aluminum Company of America, 143 F. Supp. 508 (S.D. Iowa 1956), aff'd sub nom. Columbia Casualty Co. v. Eichleay Corporation, 245 F.2d 1 (8th Cir. 1957), the court said estoppel “does not operate to create a new insurance contract, but simply to deny legal effect to a provision of the policy contract inserted for the benefit of the insurer.” 143 F. Supp. at 513. And in Crescent Co., Inc. v. Insurance Company of North America, 225 S.E.2d 656 (S.C. 1976), the court said, “The scope of risk under an insurance policy can be extended by estoppel if the insurer has misled the insured into believing the particular risk is within the coverage.” Id. at 659. The court also said the essential elements of estoppel are: (1) ignorance of the party invoking it of the truth as to the facts in question; (2) representations or conduct of the party estopped which mislead; (3) reliance upon such representations or conduct; and (4) prejudicial change of position as a result of such reliance.” The case of Pitts v. New York Life Insurance Company, 148 S.E.2d 369 (S.C. 1966), is cited in support of these elements.
The cases cited above clearly support the view that estoppel can be used to broaden coverage and to bar the defense of noncoverage. This matter is also the subject of an extensive annotation in 1 A.L.R. 3rd 1139 (1965). That annotation and its 1985 supplement cite cases from at least 12 states supporting the rule that estoppel or waiver is available to bring within the coverage of an insurance policy risks which are not provided for in the policy or which are expressly excluded therefrom. We have concluded that the rule is a good one and should be adopted by us. As appellee’s petition for rehearing states, equitable principles have historically been used to promote fair play and prevent wrongful conduct. The doctrine of estoppel in pais is available in both law and equity and is not confined to issues of insurance coverage. See Branch v. Standard Title Co., 252 Ark. 737, 480 S.W.2d 568 (1972). The Arkansas Supreme Court has recently, for the first time, held that the doctrine may be available against the state. See Foote’s Dixie Dandy v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). We hold, therefore, that the doctrine of estoppel was available for appellee’s use in this case, and we turn now to discuss the question of agency in regard to the conduct of Eddie Lucas and Aubrey Holt.
AGENCY
The appellant contends that Lucas was not its agent and his knowledge and actions were not imputed to it and, since Holt was only a soliciting agent, his knowledge and actions were not imputed to appellant. But in the application of the doctrine of estoppel, we think the law makes appellant responsible for the knowledge and actions of both Lucas and Holt.
In DeSoto Life Insurance Co. v. Johnson, 208 Ark. 795, 800, 187 S.W.2d 883 (1945), the court said:
The majority rule has long been followed by this court. It was reiterated in the recent case of Southern National Insurance Co. v. Heggie, 206 Ark. 196, 174 S. W.2d 931, where our cases were reviewed and this court said: “It has been frequently held by this court that, where an applicant for insurance makes to the agent of the insurer a full disclosure of the facts inquired about in the application, but the agent fails to write down the answers of the applicant correctly, and the applicant is permitted by the agent to sign the application without reading it or hearing it read, the knowledge of the agent as to the physical condition of applicant is imputed to the company and, if a policy is issued on such an application, the company is estopped in an action on said policy to set up the falsity of the answers in the application.”
In Interstate Fire Insurance Co. v. Ingram, 256 Ark. 986, 989, 511 S.W.2d 471 (1974), the appellate court said the trial court “did not err” in giving the following jury instruction:
You are instructed that where facts have been truthfully stated to an agent of an insurance company, but by the agent’s fraud, negligence, or mistake the facts are misstated in the application, the company cannot after accepting the premium and issuing the policy, set up such misstatements in the application in avoidance of its liability, where the agent is acting within his real or apparent authority and there is no fraud or collusion upon the part of the insured.
And, this court, in Gilcreast v. Providential Life Insurance Co., 14 Ark. App. 11, 683 S. W.2d 942 (1985), reversed and remanded a case because the trial court had given an instruction telling the jury that the knowledge of the appellant’s previous condition had by the insurance company’s soliciting agent could not be imputed to the company. Our opinion relied upon a number of cases and quoted from Aetna Life Insurance Co. v. Routon, 207 Ark. 132, 179 S.W.2d 862 (1944), where the court said:
“Where the fact is correctly stated by the applicant but a false answer is written into the application by the agent of the company without knowledge or collusion upon the part of the applicant, the company is, according to the generally accepted rule, bound. But on the other hand, if the agent in collusion with the applicant makes the false and fraudulent representations upon which the insurance is obtained, the fraud will vitiate the policy, even though the agent is acting within the apparent scope of his authority.”
The law in the above cases also applies where the agent, in filling out the application, relies upon information obtained from others rather than information from the applicant. The general rule is set out in 7 Couch on Insurance 2d § 35.187 (rev. ed. 1985), as follows:
Where an agent is furnished with a blank application which he is authorized by the insurer to fill out, and he relies, in so doing, upon information obtained from others, rather than upon that obtained from the applicant, and a policy is issued thereon, the insurer cannot avoid liability on such policy, but is bound by its agent’s acts, even where the applicant signs the application, provided he is ignorant of the false statements thereon.
This is also the rule in Arkansas. In the early case of People’s Fire Insurance Association of Arkansas v. Goyne, 79 Ark. 315, 96 S.W. 365 (1906), the Arkansas Supreme Court quoted from the United States Supreme Court case of Insurance Company v. Wilkinson, 13 Wall. 222 (1871), in which that court assumed a factual situation where the soliciting agent obtained no answers from the applicants but “wrote the representation to suit himself.” The court said estoppel would apply to prevent the company from taking advantage of that situation. The Arkansas Supreme Court approved of the Wilkinson holding and applied it in Goyne even though the Arkansas court knew that the United States Supreme Court had already issued another opinion disapproving of part of the language in Wilkinson. And in Maloney v. Maryland Casualty Co., 113 Ark. 174, 184, 167 S.W. 845 (1914), the Arkansas Supreme Court said:
Moreover, the undisputed testimony shows that the application was written up by the agent of the insurance company, and that the answers were written by him without consulting the assured. Therefore, the company is chargeable with the knowledge of its own agent, and is also estopped from denying that which its own agent has asserted to be true. See Peebles v. Eminent Household of Columbian Woodmen, 164 S.W. 296, 111 Ark. 435.
Thus, since there is evidence in the present case to support a finding that Lucas filled out the application incorrectly, without Holt ever being present, we think the jury could have found the appellant bound by that application because the evidence will also support a finding that Holt, who had the contractual responsibility for “asking all questions and correctly recording all answers” signed the application relying upon information he received from Lucas and not upon information he received from the Graveses. This fits precisely the general rule from Couch and the Arkansas rule in Goyne and Ingram, supra. We must now, however, apply the estoppel and agency issues to the liability issue in this case.
ESTOPPEL AND AGENCY APPLIED
As we have seen, where the information called for by the application is correctly stated to the soliciting agent but he fills out the application incorrectly, the insurance company is bound by the information on the application unless the applicant knows what the agent wrote or was guilty of fraud or collusion. Since the evidence here would support a finding that the appellant was bound by the information on the application, the Arkansas cases quoted from above clearly show that the incorrect information on the application will not prevent a recovery on the policy. We also think the evidence will support a finding that the appellant is estopped to question Linda Graves’ preexisting condition. This will, of course, allow recovery for her medical expenses which were incurred for a condition that first manifested itself more than 15 days after the policy was in force. And this will broaden the coverage of the policy issued by the appellant. But we think, under the particular facts in this case, this is a proper application of the well-established doctrine of estoppel. It is based upon the evidence from which the jury could find (1) that the Graveses, without any fraud or collusion on their part, did not know that Lucas had filled out the application incorrectly, (2) that the issuance and delivery of the policy by appellant misled the Graveses by causing them to believe that the policy was valid and enforceable, (3) that they relied upon the issuance and delivery of the policy, (4) to drop their other policy which was paying for Mrs. Graves’ visits to the doctor’s office and to pay the premiums on the new policy for more than a year. See the elements of estoppel listed in the previously cited case of Crescent Co., Inc. v. Insurance Company of North America, 225 S.E.2d 656 (S.C. 1976).
Our application of the doctrine of estoppel is not based upon the evidence that Lucas assured the Graveses that Time’s policy would cover Mrs. Graves’ preexisting condition. Although that evidence is relevant, under Arkansas law the promise of coverage is ordinarily not within the scope of a soliciting agent’s authority. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). In this case, however, where the jury could find that the appellant is bound by the information contained on the application, the appellant’s vice-president testified that the policy would not have been issued if the application had correctly reflected the information given by the Graveses, and the Graveses dropped their other policy and paid the premiums on the Time policy for more than a year, we think there is sufficient evidence to invoke the doctrine of estoppel in order to prevent the appellant from claiming there can be no recovery on the policy for the medical expense sought to be recovered. Although this uses the doctrine of estoppel to extend coverage of the policy, there is precedent for it. To hold otherwise would be, as stated in Harr v. Allstate Insurance Company, 255 A.2d 208 (N.J. 1969), “an unfortunate triumph of form over substance.”
JURY INSTRUCTIONS
The appellant also contended that this case should have been reversed because two jury instructions given at the request of the appellee should not have been given and one instruction requested by the appellant should have been given.
Instruction No. 14, given at appellee’s request read:
If you find that Holt was furnished with blank applications which he was authorized by Time to fill out and that Holt relied upon information obtained from Lucas in doing so, rather than upon that obtained from the Graves, and a policy is issued thereon, Time cannot avoid liability on such policy, but is bound by the acts of its agent Holt, even where the Graves signed the application provided the Graves are ignorant of the false statements contained therein.
It is argued by appellant that this instruction was a binding instruction and allowed the jury to find for the appellee solely on the basis that Lucas filled out the blank application furnished by Holt. We think the phrase “cannot avoid liability on such policy” is subject to the vice of which appellant complains.
The appellee relies upon Mutual Aid Union v. Blacknall, 129 Ark. 450, 196 S.W. 792 (1917), which states that an insurance company is bound by the conduct of its soliciting agent acting within the apparent scope of his authority. Even so, “bound by conduct” is not the same as “cannot avoid liability” on the policy. It is clear from our previous discussion that the appellant is not liable on the policy simply because Lucas wrote false statements in the application which the Graveses did not know of, even if Holt signed the application without obtaining any information from the Graveses. This leaves out the reliance and prejudicial change of position elements of estoppel which must be found before the appellant is liable on the policy. Also, the instruction as offered assumes there are false statements in the application.
We think the court committed prejudicial error in giving Instruction No. 14, and we reverse and remand for that error. In view of a retrial, we point out that we believe Instruction No. 11, given at appellee’s request, was argumentative and that which of two innocent parties must suffer for the wrongful act of a third party is not really an issue in the case. Also, appellant’s requested Instruction No. 2, which was refused, dealing with the burden of proving that Lucas was acting in the scope of his authority, did not instruct on an issue in the case.
OTHER ISSUES
The point argued by appellant as to the submission of the case against appellant without also submitting, at the same time, the case against Eddie Lucas may not be involved at retrial. At any event, the circumstances are not likely to be similar enough to warrant our prediction on whether the court would abuse its discretion in submitting the case on retrial. We also do not care to give an advisory opinion on the questions raised in appellee’s brief as to admissibility on retrial of the amended application bearing the signature of William Graves or the admissibility of applications completed by Holt for insurance on other persons not parties in this case. We see no evidence of a cross-appeal in the briefs or the record. See Lou v. Smith, 285 Ark. 249, 685 S.W.2d 809 (1985).
Reversed and remanded.
Cracraft, J., concurs.
Corbin, C.J., and Coulson, J., dissent. | [
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Robert L. Brown, Justice.
Appellant David Earl Henderson appeals from his judgment of conviction for attempted murder in the first degree, aggravated robbery, and residential burglary. He was sentenced to life imprisonment. He asserts two points on appeal: (1) that the circuit court erred in preventing his counsel from responding to the prosecutor’s statement during voir dire regarding convictions and circumstantial evidence; and (2) that the circuit court erred in allowing evidence of a prior theft by Henderson against the same victim. We affirm the judgment of conviction.
On the evening of July 10, 2003, Kathleen Price was lying in her bed in her apartment in the Sunset Motel in Springdale. At the time, Ms. Price resided at the motel and served as its manager. She collected rent from the occupants and showed empty units to potential renters. While lying in her bed on that particular night, Ms. Price heard a loud noise and got out of her bed. She found a man climbing through her window, after having pushed her air-conditioning unit inside the window onto her floor. The man yelled at her not to scream, but she did, and he began to choke her. After hitting the man with a club that a friend had loaned her for protection, the man grabbed the club and continued choking her with his hands and the club. She passed out. The next thing she recalls is coming to and calling for help. Police officers from the Springdale Police Department arrived at the scene, and after searching her apartment, they discovered that a bag of money containing $250 was missing. In addition, $40 was missing from Ms. Price’s purse.
Henderson was charged with attempted first-degree murder, aggravated robbery, and residential burglary. At his ensuing trial, Ms. Price identified Henderson as the man who climbed through her window and attacked her that evening. She also testified that Henderson and his roommate had moved into the motel six months earlier. She added that seven days earlier, she and Henderson had had an incident. She stated that Henderson had come over to her room and complained about another person living at the motel. When Ms. Price and he began to leave her apartment, she had her back to him. She testified that when she looked back, Henderson appeared to be pushing something down into his pants. After returning from trying to talk to the other resident, she discovered that her money bag for that week was missing, and she called the police department. The police officers searched Henderson’s room and found the money bag, receipt, and the cards in the bag for that week. After she went to Henderson’s apartment to inquire about the missing bag, Ms. Price said that while he did not admit taking the bag, he told her that he would pay her for the missing money.
At the conclusion of the trial, the jury found Henderson guilty of attempted murder in the first degree, aggravated robbery, and residential burglary and sentenced him to life imprisonment.
Henderson first argues that the circuit court erred in limiting his counsel’s voir dire. He contends that the prosecutor made a statement regarding circumstantial evidence that was misleading to the venire and that it was within his right to respond to the statement. He further asserts that by sustaining the prosecutor’s objection to his counsel’s response, the circuit court gave credibility to the prosecutor’s statement that a majority of cases are proved by circumstantial evidence. He maintains that the circuit court unfairly discounted his counsel’s own statement in response, which resulted in prejudice to him.
The relevant colloquy at voir dire is this:
Prosecutor: That’s circumstantial evidence, facts you know, facts that are introduced, you infer and determine what happened. Does anyone have a problem using circumstantial evidence to convict someone? The large vast majority of cases are proved with circumstantial evidence. Why? Because you limit witnesses, you do, you commit crimes you generally want to limit the witnesses and the evidence. You don’t go out and shoot somebody at center court of a Razorback basketball game because more than likely other people are going to see you. The law recognizes that [in] most cases, the vast majority are proven by circumstantial evidence....
Defense Counsel: Well now, another thing, he stated earlier that the vast majority of cases get convicted with just circumstantial evidence, he said that. Well, you also understand that a vast majority of cases where there’s acquittals, the vast majority of those have just circumstantial evidence. Would you be —
Prosecutor: Your Honor, I’m going to object.
The Court: Yes, that’s not a correct statement, counsel, and you need to limit your inquiry to the three legitimate areas in the statute and so let’s move this process along.
CONTINUING VOIR DIRE
Defense Counsel: Do you understand that a case can have circumstantial evidence and it can still have direct evidence but that still does not, that still cannot be enough to find someone guilty beyond a reasonable doubt, would everyone agree with that? ...
Before addressing the merits, we turn to a preservation point raised by the State. The State claims that while Henderson now asserts that the prosecutor’s statement at voir dire was misleading, he failed to object to that statement in circuit court. Furthermore, the State argues that defense counsel did not state any grounds in opposition to the circuit court’s restriction of his voir dire; nor did he object to the impanelment of the jury. For these reasons, the State urges that Henderson waived his right to raise the prejudice point on appeal. In addition, the State contends that any prejudice caused by the prosecutor’s statement could have been cured by an admonition, and because Henderson failed to request one, any failure by the circuit court to give an admonition to the jury is not an abuse of discretion.
We agree with the State. Henderson first argues in his brief on appeal that the prosecutor’s statement that the “vast majority of cases are proved with circumstantial evidence” was “misleading.” Yet, he voiced no objection to that statement to the circuit court. In Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000), this court held that where an appellant had not objected to any restriction of his voir dire and never objected on the record to the impanelment of his jury, his assertion that the circuit court improperly restricted his voir dire was not preserved for appeal. The same holds true in the instant case. By not objecting, Henderson failed to alert the circuit court that he contested that statement. Thus, the circuit court had no opportunity to rule on the matter, and it is not preserved for our review. See London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003).
Henderson, secondly, contends that the circuit court abused its discretion in sustaining the prosecutor’s objection to his statement to the venire that when there are acquittals, “the vast majority of those have just circumstantial evidence.” He urges that the circuit court’s ruling gave credibility to the prosecutor’s statement and, thus, prejudiced him. We first note that questioning on voir dire is a matter of discretion vested in the circuit court. See Ark. R. Crim. P. 32.2(a) (2004). See also Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). But, in addition, Henderson never argued his “credibility” or “prejudice” point to the circuit court. Had he done so, the court might well have understood the basis for Henderson’s statement and admonished the venire not to view its ruling as a credibility matter. In short, under these facts, we do not view Henderson’s silence after the court’s ruling as sufficient to preserve the “credibility” and “prejudice” arguments he now mounts in this appeal. Because, again, the circuit court did not have the chance to rule first on the point now raised in this appeal, we refuse to entertain it. See London v. State, supra. See also Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004) (defendant’s issue on appeal following a sustained objection by the State was not preserved because argument was made for first time on appeal).
Henderson next argues that the circuit court erred in denying his motion in limine to prevent the introduction of an alleged prior theft perpetrated by Henderson against the same victim one week earlier. He contends that the alleged prior theft did not provide additional evidence to show that he had independent knowledge of when and where Ms. Price had money. He further asserts that the alleged prior theft does not provide a motive for the instant charges and that the evidence is not relevant to prove a material point. Instead, he urges, the prior event was simply used to show his bad character and that he acted in conformity with the alleged prior theft, all in contravention of Arkansas Rule of Evidence 404(b) (2004). He also claims that the circuit court failed to engage in the proper balancing test regarding the probative versus prejudicial value of the evidence under Arkansas Rule of Evidence 403.
Arkansas Rule of Evidence 404(b) (2004) provides that “[ejvidence 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 therewithf,]” although it may be admissible “for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” This court has held that evidence offered under this rule must be independently relevant, thereby having a tendency to make the existence of any fact that is of consequence to the determination of guilt more or less probable than it would be without the evidence. See Barnes v. State, 346 Ark. 91, 55 S.W.3d 271 (2001). Another crime is “independently relevant” if it tends to prove a material point and is not introduced merely to demonstrate that the defendant is a criminal. See Eliott v. State, 342 Ark. 237, 27 S.W.3d 432 (2000). This court has further held that the list of exceptions in Rule 404(b) to inadmissibility is not an exclusive list but, instead, is representative of the types of circumstances under which evidence of other crimes or wrongs or acts would be relevant and admissible. See Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). The admission or rejection of evidence under Arkansas Rule of Evidence 404(b) is left to the sound discretion of the circuit court and will not be disturbed on appeal absent a manifest abuse of discretion. See Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002).
In the instant case, it is clear that the alleged prior theft by Henderson of Ms. Price’s money was not only relevant but constituted proof of Henderson’s motive, opportunity, and knowledge. As set forth above, Ms. Price testified that seven days before the instant robbery, Henderson had come to her apartment on the pretense of complaining about another resident. After looking back at Henderson, Ms. Price observed him shoving something down into his pants. She called the police, and the missing money bag was found in Henderson’s room. She confronted him about the missing money bag, and he told her that he would repay the money.
This evidence reveals that not only did Henderson know Ms. Price routinely kept money in a money bag in her apartment but also that Henderson was aware of the layout of the apartment. In addition, the testimony reveals that Henderson had a potential motive for attacking and strangling Ms. Price in retaliation for her actions in calling the police to report the previous theft. Without question, the evidence is independently relevant. Despite his claims that others in the complex also had this same information, the prior alleged theft demonstrates irrefutably that Henderson had such knowledge.
As to Henderson’s allegation that the circuit court also failed to conduct the proper balancing test under Rule 403 regarding the alleged prior theft, his assertion is procedurally barred. Under Rule 403, evidence of prior crimes, wrongs, or acts, even if admissible under Rule 404(b), will not be admitted if the admission of such evidence is substantially outweighed by the danger of unfair prejudice. See Ark. R. Evid. 403 (2004). See also Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).
In the instant case, the circuit court made the following ruling with respect to Henderson’s motion in limine to exclude the prior incident:
The Court: Well, I think it’s admissible. It’s not admissible to prove identity but I think it is admissible for those other purposes and if the Defendant wants to — the Court to give a limiting instruction if and when this comes in you call that to my attention and I will but I think clearly it’s admissible to prove knowledge, motive, opportunity, so that’s my ruling.
Though Henderson’s motion in limine raised both Rule 404(b) and Rule 403 arguments, the circuit court did not make a specific Rule 403 ruling. It was incumbent upon Henderson to obtain such a ruling. See Morgan v. State, 308 Ark. 627, 826 S.W.2d 271 (1992). Accordingly, this issue is not preserved for our review.
A review of the record for reversible error has been done pursuant to Sup. Ct. R. 4-3(h), and none has been found.
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Per Curiam.
We previously directed attorney Jerome Green to appear before this court on December 2, 2004, and show cause as to why he should not be held in contempt for failing to perfect the appeal of Appellant Teresa Edwards and for representing her during a time that he was delinquent in the payment of his bar dues and was therefore not in good standing. See Edwards v. State, 359 Ark. 409, 198 S.W.3d 120 (2004) (per curiam).
Mr. Green did appear as ordered and entered a plea of nolo contendere to the contempt charges. He admitted that he had filed a notice of appeal on Appellant’s behalf, but then failed to perfect the appeal and had not sought this court’s permission to withdraw from her case. He also admitted that he had not paid his bar dues for the years 2003 and 2004. He then offered a statement in mitigation on both grounds.
Regarding his representation of Appellant while not in good standing for failure to pay his bar dues, Mr. Green stated that he had not received any notice and was not aware that he had been delinquent. He stated that he had appeared in courts throughout the state, but had never been informed that he was delinquent. The records of our Clerk, however, show that Mr. Green was placed on the list for delinquent bar dues for the years 2003 and 2004, and these lists were sent to all the circuit courts in the state. Our Clerk’s records also show that since the date of our previous order, Mr. Green has paid his dues in full.
As for the charge of failing to perfect the appeal, Mr. Green stated that he had made arrangements with the court reporter to complete the transcript. He stated that Appellant’s family indicated that they would pay for the transcript. Despite their assurances, he stated that he was not able to secure the money from them, and they eventually ceased communicating with him. At some point, he stated that he became aware that Appellant’s family had retained another attorney. Thereafter, he took no further action on the appeal. He admitted, however, that he did not at any time file a motion in this court seeking permission to withdraw from Appellant’s appeal, as required in Ark. Sup. Ct. R. 4-3(j)(l).
Based on the foregoing, we find Mr. Green in contempt for representing Appellant during a time that he was not in good standing before the bar. We also find him in contempt for failing to perfect Appellant’s appeal and for failing to file a motion in this court seeking permission to withdraw from her appeal. His inaction on the case, even though another attorney had been retained on her behalf, is inexcusable under the circumstances. Accordingly, we impose a fine of $250, which shall be paid within thirty days from the date of this order. A copy of this opinion will be forwarded to the Supreme Court Committee on Professional Conduct.
Dickey, C.J., not participating. | [
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LARRY D. VAUGHT, Judge
11 Steven Blake Wright is appealing his conviction by a Crawford County jury of aggravated assault upon a certified law-enforcement officer and first-degree ter-roristic threatening. He argues that the State presented insufficient evidence to support the convictions. We affirm.
On December 23, 2014, Deputy James Mirus and Corporal Matt McGrew, both of the Crawford County Sheriff’s Department, responded to a domestic-violence report by Wright’s girlfriend, Priscilla Johnson. Based on statements given by Johnson, the officers arrested Wright at his home. Deputy Mirus testified that, as they walked Wright outside to the patrol vehicle, he was screaming at the officers, cursing at them, and making threats of physical harm toward them and their families. Wright also told the officers that he has AIDS. He threatened | pto break down the plexiglass divider in the patrol car, choke and kill Deputy Mirus, and infect him with AIDS. Wright told the officers that he had three previous charges for assaulting police officers and that he would have a fourth charge by the end of the night.
Deputy Mirus testified that, as he was exiting Interstate 49 onto Interstate 40, he heard Wright’s seatbelt unbuckle. Wright was kicking, screaming, cursing, and threatening to kill the officer. He was hitting his head on the window, and Deputy Mirus heard air coming in the windows from outside. He also kicked the plexiglass divider so hard that it caused the shotgun to fall from its mount, hitting Mirus in the nose and injuring him.
Deputy Mirus called for backup and then pulled over at a weigh station to calm Wright and to secure his seatbelt. As soon as he opened the back door, Wright began lunging at him and spitting at him. Wright spit on the officer’s arm. Deputy Mirus warned him that if he did not calm down, he would be “pepper sprayed.” Wright continued to lunge and spit, and Mirus sprayed him with pepper spray. Additional officers arrived as backup. They testified that Wright was angry and agitated. Emergency medical-care providers arrived and decontaminated Wright of the pepper spray.
At trial, Deputy Mirus testified that, while he had not been fearful of Wright’s threats of immediate physical harm, he was afraid of Wright’s threat to harm his family. He testified that because they lived in a small town, it was very likely that Wright would encounter Mirus’s family at some point after release.
Corporal Matt McGrew testified that while assisting in Wright’s arrest he did not hear Wright make any threats toward either him or Deputy Mirus.
|sThe jury convicted Wright, and the court imposed concurrent three-year sentences and fines for aggravated assault and terroristic threatening. He filed a timely appeal. On appeal, Wright’s only arguments are challenges to the sufficiency of the evidence supporting the two convictions.
In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Satterfield v. State, 2014 Ark. App. 633, at 2, 448 S.W.3d 211, 213. We will affirm if the finding of guilt is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The weight of the evidence and credibility of the witnesses are matters for the fact-finder, not for the trial court on a directed-verdict motion or this court on appeal. Id. The fact-finder is free to believe all or part of a witness’s testimony and may resolve all questions of conflicting testimony and inconsistent evidence. Id.
Wright was convicted of aggravated assault upon a certified law-enforcement officer, which is defined by Arkansas Code Annotated section 5-13-211 (Repl. 2013) as follows:
A person commits aggravated assault upon a certified law enforcement officer or an employee of a correctional facility if, under circumstances manifesting extreme indifference to the personal hygiene of the certified law enforcement officer or employee of the correctional facility, the person purposely engages in conduct that creates a potential danger of infection to the certified law enforcement officer or an employee of any state or local correctional facility while the certified law enforcement officer or employee of the state or local correctional facility is engaged in the course of his or her employment by causing a person whom the actor knows to be a certified law enforcement officer or employee of the state or local correctional facility to come into contact with saliva, blood, urine, feces, seminal fluid, or other bodily fluid by purposely throwing, tossing, expelling, or otherwise transferring the fluid or material.
14Ark. Code Ann. § 5-13-211. An accused acts purposely when it is his “conscious object to engage in conduct of that nature or to cause that result.” Ark. Code Ann. §■ 5-2-202(a)(l). Here, Deputy Mirus testified that Wright was infected with AIDS, was angry and violent, threatened to infect him with AIDS, repeatedly spit at him, and at one point- successfully spit on him, while he had an open wound on his nose. While Mirus’s partner testified that he did not hear Wright make any threats, the jury was entitled to resolve all questions of conflicting testimony. We hold that there was more than sufficient evidence to support Wright’s conviction of each element of the offense enumerated in the statute.
Wright also challenges the sufficiency of the evidence supporting his conviction, for first-degree terroristic threatening. Arkansas Code Annotated section 5-13-301 defines the crime as follows:
A person commits the offense of terror-istic threatening in th'e first degree if: (A) With the purpose of terrorizing another person, the person threatens to cause death or serious physical injury or substantial property damage to another person.
Ark. Code Ann. § 5—13—301(a)(1)(A). Again, we hold that the evidence was more than sufficient to support Wright’s conviction. Deputy Mirus testified that Wright threatened to kill him and his family, assault him, and infect him with AIDS. He made these threats while behaving violently and erratically, even kicking the plexiglass barrier in the patrol vehicle so hard it caused the shotgun mount to break and the shotgun to fall on Deputy Mirus, and injure him. Mirus testified that the threats against his family caused him significant concern, given that Wright and Mirus both lived in the same area and would likely encounter each other after Wright was released from prison. Accordingly, we affirm the terroristic-threatening conviction.
' | (Affirmed.
HARRISON and GLOVER, JJ., agree.
. Wright was also convicted of first-degree criminal mischief but has not challenged that conviction in this appeal. | [
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Jim Gunter, Justice.
Appellant, Garry Kyzar, appeals from an order from the Crittenden County Circuit Court granting a motion to dismiss filed by appellees, City of West Memphis et al. Appellant’s complaint requested a writ of mandamus ordering appellees to call an election on a referendum petition concerning a tax increase. We affirm.
On June 26, 2003, the city council (“Council”) of the City of West Memphis (“West Memphis”) passed Ordinance 2072 (“ordinance”), which levied a one-percent tax upon the gross receipts or gross proceeds from the sale of prepared foods and beverages and from the rental of all hotel and motel facilities in West Memphis, as authorized by Ark. Code Ann. § 26-75-602 (Repl. 1997). This ordinance is known as the “hamburger tax.” The collection of this tax increase was to begin on June 26, 2003.
Appellant, among others, signed a petition seeking a referendum election on the ordinance, and on July 24, 2003, the petition was timely filed with the city clerk, appellee Para. The clerk verified that there were the requisite number of signatures on the petition, but the petition was not certified. On July 30, 2003, at a city council meeting, the mayor of West Memphis announced that the petition was certified by the clerk and that there would be a vote on the ordinance. However, the clerk subsequently rejected the petition as legally void because a copy of the referred ordinance was not attached to the petition as allegedly required by Ark. Code Ann. § 7-9-106(b) (Repl. 2000). The petition was never certified by the clerk, nor was it set for a referendum election.
On September 15, 2003, appellant filed a complaint in which this referendum issue was consolidated with another action alleging an illegal exaction. In his complaint, appellant requested inter alia that the trial court issue a writ of mandamus ordering the council to call an election on the petition for referendum, or in the alternative, that the clerk certify the petition for referendum. Appellees filed their answer on September 22, 2003.
On September 22, 2003, appellees filed a motion to dismiss the referendum portion of appellant’s complaint. In their motion to dismiss, appellees averred that appellant failed to state a claim under Ark. R. Civ. P. 12(b)(6) with regard to the referendum portion of his complaint. Appellees argue that a writ of mandamus was inapplicable because the petition was void for its failure to satisfy the statutory requirements of Ark. Code Ann. § 7-9-106, which requires a petition to be certified. Appellees conclude that until the sufficiency of the petition is established, through the procedure mandated by Amendment 7 to the Arkansas Constitution, appellant has no legal right that may be enforced by mandamus.
A hearing was held before the Crittenden County Circuit Court. Counsel for appellant advised the court that the issue of the hearing was the legal sufficiency of the petition and that he was not asking the court to rule on the illegal-exaction issue. The trial court granted appellees’ motion to dismiss, finding that Ark. Code Ann. § 7-9-106(b) imposes a jurisdictional requirement that a referendum petition on a local ordinance must have a complete copy of the ordinance attached to the petition. Because the petition did not strictly comply with Ark. Code Ann. § 7-9-106(b), it was fatally flawed and could not be set for a referendum election. In compliance with Ark. R. Civ. P. 54(b)(1), the trial court certified that the order was a final judgment with regard to the issue of a referendum vote.
In Kyzar v. City of West Memphis, 359 Ark. 366, 197 S.W.3d 502 (2004), we found appellant’s addendum to be deficient, pursuant to Ark. Sup. Ct. R. 4-2(a)(8) (2004), and we gave appellant the opportunity to file a substituted addendum. Appellant has done so, and we now consider the merits of his appeal. From the trial court’s order granting appellees’ motion to dismiss under Ark. R. Civ. P. 12(b)(6), appellant brings his appeal.
When a trial court considers matters outside of the pleadings, the appellate courts will treat a motion to dismiss as one for summaryjudgment. Ark. R. Civ. P. 12(b); Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996). Summaryjudgment 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 oflaw. Calcagno v. Shelter Mutual Insurance Co., 330 Ark. 802, 957 S.W.2d 700 (1997). The burden of sustaining a motion for summaryjudgment is the responsibility of the moving party. Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997). 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. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Because the order states that the trial court considered “pleadings of the parties, the testimony and arguments from the September 19, 2003, hearing,” we will treat the motion as one for summaryjudgment. Smothers, supra.
This appeal also requires us to determine the application of Ark. Code Ann. § 7-9-106(b). We articulated the rules of statutory construction in Weiss v. American Honda Finance Corp., 360 Ark. 208, 195 S.W.3d 911 (2004), where we stated:
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76(1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legisla tive history, and other appropriate means that shed light on the subject. Stephens, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ultimate rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
Weiss, supra (citing Faulkner v. Arkansas Children’s Hospital, 347 Ark. 941, 952, 69 S.W.3d 393, 400 (2002)). With these standards of review in mind, we turn to appellant’s argument on appeal.
For his first point, appellant argues that the trial court erred in ruling that the requirements of Ark. Code Ann. § 7-9-106 apply to petitions for referendum on municipal ordinances. Specifically, appellant contends that Ark. Code Ann. § 7-9-106 does not apply to municipal ordinances, but only to “any act having general application throughout the state” or “any proposed amendment to the Arkansas Constitution.” Ark. Code Ann. § 7-9-101(1) and (2) (Repl. 2000). In response, appellees argue that Ark. Code Ann. § 7-9-106 does apply to municipal referenda.
We are required to review Ark. Code Ann. § 7-9-106(b), which provides:
(b) To every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered.
Id.
“Measure” is defined in Ark. Code Ann. § 7-9-101, which provides in pertinent part:
As used in this subchapter, unless the context otherwise requires:
(1) “Act” means any act having general application throughout the state, whether originating in the General Assembly or proposed by the people, and referred acts;
(2) “Amendment” means any proposed amendment to the Arkansas Constitution, whether proposed by the General Assembly or by the people;
* * *
(6) “Measure” means either an amendment or an act].]
Id.
“Measure” is defined by Ark. Code Ann. § 7-9-101(1) and (2), which refer to an act and an amendment, respectively. Because the present case does not involve a proposed amendment to the Arkansas Constitution, subsection (2) does not apply. Thus, we must look to subsection (1), which defines an act, to determine whether it applies to a local ordinance.
In so doing, we note that Amendment 7 authorizes the right of referendum. Amendment 7 amended Art. 5, § 1 of the Arkansas Constitution and is commonly referred to as the Initiative and Referendum Amendment. It provides:
The initiative and referendum powers of the people are hereby further reserved to the legal voters of each municipality and county as to all local, special, and municipal legislation of every character in and for their respective municipalities and counties, but no local legislation shall be enacted contrary to the Constitution or any general law of the State, and any general law shall have the effect of repealing any local legislation which is in conflict therewith.
Ark. Const, art. 5, § 1 (emphasis added). Amendment 7 must be liberally construed in order to effectuate its purposes and only substantial compliance with the amendment is required. Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992).
Appellant admits in his brief that “[t]he City of West Memphis has, indeed, enacted ordinances governing the referendum, . . . [b]ut those ordinances do not address the attachment of a copy of an ordinance to a petition for referendum.” Because there is no local legislation on the subject of attachment, we now address whether Ark. Code Ann. § 7-9-106(b) is applicable to the petition at issue.
This question was addressed in Townsend v. McDonald, 184 Ark. 273, 42 S.W.2d 410 (1931), where appellant Townsend sought by mandamus to compel the Secretary of State to file a petition for a referendum on a statewide act passed by the legisla ture. The Secretary of State refused to file the petition because a full and correct copy of the act was not attached to it. We held that the failure to attach a full and correct copy of the measure to be voted upon rendered the petition invalid. Id. We stated:
The statute was not passed as a mere matter of convenience or direction to be observed either by those circulating the petitions or by the Secretary of State. The act was passed as a safeguard to the rights of the voters to whom the petition was offered for signature. The requirement was intended to secure the voters, whose interests were to be affected, an opportunity to know what they were signing, and to know that they were not signing something different from those whose signatures appeared on the petition. This is a right of great benefit to the voters, and we do not think the requirement should be regarded as merely directory, but that it is a substantial right which is of a mandatory character, and must be complied with or the proceeding will be void.
Id. (emphasis added). In Townsend, supra, we held that the attachment requirement is mandatory and jurisdictional.
Citing State ex rel. v. Olcott, 62 Or. 277, 125 P. 303 (1912), with approval, we further noted in Townsend:
The [Oregon] court held that it was not necessary to have a full and correct copy of the title and text of the measure proposed attached to each sheet of the petition. This would make each sheet a separate petition and would be putting form above substance. No matter how many signers there are to a petition and how many sheets are used, they are pasted together and become a constituent part of the same petition. It is only necessary that a full and correct copy of the measure on which the referendum is asked be filed with the petition and attached thereto in order that the petitioners may have the opportunity to read it and inform themselves as to the act to be referred before signing the petition, if they wish to do so.
Townsend, supra (emphasis added).
This rationale comports with our holding in Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935), where we held that the filing of several parts of a petition constitute but one petition. Id. See also Bradley v. Galloway, 279 Ark. 231, 651 S.W.2d 445 (1983) (noting that it is not necessary that a full and correct copy of the referred measure be attached to “each sheet” of the petition); Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).
With this well-established precedent in mind, as well as the statutory provisions of Ark. Code Ann. § 7-9-106(b), we turn to the case sub judice. First, we look to the plain meaning of Ark. Code Ann. § 7-9-106(b), which provides, “To every petition for the referendum shall be attached a full and correct copy of the measure on which the referendum is ordered.” Id. The operative phrase is “every petition.” Here, the plain meaning of Ark. Code Ann. § 7-9-106(b) requires a clerk to reject the petition for referendum if a “full and correct copy of the measure” is not attached. Thus, “every petition” makes no distinction between local, county, or state petitions, and a copy of the ordinance must be attached to the petition. Under Townsend, supra, this requirement is mandatory and jurisdictional. Id. Because West Memphis did not have a local ordinance already in place on the subject of attachment, the clerk must look to Ark. Code Ann. § 7-9-106(b) for guidance.
Second, we must examine the intent of the General Assembly in Act 2 of 1911, which is codified at Ark. Code Ann. § 7-9-106. The title of the act provides:
An act to provide for carrying into effect the initiative and referendum powers reserved by the people in Amendment No. 10, to the Constitution of the State of Arkansas on general county and municipal legislation, to regulate elections thereunder and to punish violations of this Act.
Acts 1911, (Ex. Sess.), No. 2 (emphasis added). Thus, it appears from the language of Act 2 of 1911 that the General Assembly had the intent for this act to apply to “general county and municipal legislation,” including local ordinances like the one in the present case.
Appellant contends that the word, “measure,” which is defined as an “act” in Ark. Code Ann. § 7-9-101(1), does not apply to the West Memphis ordinance. We disagree. Under Ark. Code Ann. § 7-9-101(1), “measure” applies to “act[s] having general application throughout the state[.]” Id. (emphasis added). This definition does not conflict with the definition of measure found in Amend. 7, which includes “any bill, law, resolution, ordinance, charter, constitutional amendment or legislative proposal or enactment of any character.” Ark. Const, art 5, § 1 (emphasis added). Thus, we do not perceive any conflict between Ark. Code Ann. §7-9-101(1) and Ark. Code Ann. § 7-9-106(b). We reconcile statutory provisions to make them consistent, harmonious, and sensible in an effort to give effect to every part. Arkansas Tobacco Control Bd. v. Santa Fe Natural Tobacco Co., Inc., 360 Ark. 32, 199 S.W.3d 656 (2004). We also look to the legislative history, the language, and the subject matter involved. Id.
Lastly, as we noted in Townsend, supra, the purpose of attaching a copy of the measure to the petition is to inform the voter of what he or she is signing, regardless of whether the measure is a statewide act or a local ordinance. Those who sign must have the opportunity to know the contents of the local ordinance before signing the petition. Townsend, supra. Here, that opportunity was not available in West Memphis. As we said in Townsend, ’’this requirement was intended to secure the voters, whose interests were to be affected, an opportunity to know what they were signing, and to know that they were not signing something different from those whose signatures appeared on the petition.” Id. Asking the voters to sign a petition without an attached copy of the ordinance would defeat the purpose of Ark. Code Ann. § 7-9 — 106(b).
For his second point on appeal, appellant argues that the trial court erred in finding that the city clerk did not certify appellant’s petition for referendum. Specifically, appellant contends that, because the mayor inadvertently stated in the Council’s meeting that the petition had been certified, “[s]uch evidence seems to mandate a factual conclusion that the clerk had determined the sufficiency of the signatures on the referendum.”
Appellant’s argument is misplaced. Here, the trial court found that the clerk never certified the petition, but rejected it as legally void because a copy of the referred ordinance was not attached to the petition for referendum. In the parties’ joint exhibit 1, counsel for appellant and appellees signed a stipulation of counsel stating that the clerk verified that the petition contained the requisite number of signatures, but that the clerk did not issue a written certification that the petition was legally sufficient. Paragraph 5 of the stipulation of counsel states: “The West Memphis City Council has taken no action to call an election on the petition for referendum for the reason that the petition for referendum has not been certified by the city clerk.” For these reasons, we conclude that the trial court was correct in its finding.
Based upon the foregoing conclusions, as well as our standard of review on summary-judgment motions and statutory construction, we hold that the trial court properly ruled as a matter of law that the petition was fatally flawed because it did not comply with Ark. Code Ann. § 7-9-106(b). Accordingly, we affirm.
The statute at issue, Ark. Code Ann. § 7-9-106(b), was enacted by Act 2 of 1911. The definition section, found at Ark. Code Ann. § 7-9-101, was enacted by Act 195 of 1943.
We have routinely held that when a municipality acts in a legislative capacity, it exercises a power conferred upon it by the General Assembly. Summit Mall Company v. Lomond, 355 Ark. 190, 132 S.W.3d 725 (2003). As a consequence, a legislative act of a municipality equates to an act by the General Assembly. Id. We have further stated that the test for determining whether a resolution or ordinance of a municipality is legislation is whether the proposition is one that makes new law or, rather, executes a law already in existence. Id. Here, the Council’s action in enacting municipal legislation, such as this ordinance, was clearly legislative. | [
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Annabelle Clinton Imber, Justice.
This appeal arises out .of a lawsuit in which Richard A. Perkins, an engineer. sued the Cedar Mountain Improvement District of Garland County for breach of contract when the district abandoned a contemplated improvement project. The trial court awarded Perkins damages and ruled that he was entitled to recover the entire amount of damages through a tax levy pursuant to Ark. Code Ann. § 14-92-238 (Repl. 1998). The trial court also awarded post-judgment interest, but declined to award prejudgment interest. Finally, the trial court awarded attorney’s fees to Perkins as a prevailing party, but then ruled that those fees were not “preliminary expenses” under section 14-92-238. On appeal, Perkins contends that he was entitled to prejudgment interest and should be able to recover his attorney’s fees through a tax levy. On cross appeal, the District contends that the trial court erred when it awarded Perkins damages under the contract as payment was contingent on actual construction of the improvement. As an alternative argument on appeal, the District claims that, even if the contract was not contingent, the trial court erred in ruling that all of the damages awarded to Perkins were “preliminary expenses” under section 14-92-238.
We agree with the District’s alternative argument and, therefore, reverse and remand for the trial court to determine the portion of compensatory damages awarded that qualify as “preliminary expenses” under Ark. Code Ann. § 14-92-238. The trial court’s judgment is affirmed on all other points.
Í. Factual Background
In 1996, Cedar Mountain Sewer Improvement District of Garland County (“District”) was created pursuant to Ark. Code Ann. §§ 14-92-201 et. seq. (2004), for the purpose of constructing a complete sewer collection and treatment system in the Cedar Mountain area located in Hot Springs, Arkansas. The District initially entered into a contract with Malone & Associates for the engineering services required for the design and construction of the sewer facility. The District’s Board of Commissioners (“Board”) subsequently voted on June 24, 1997, to terminate the contract with Malone & Associates, and selected a new civil engineering firm, Perkins & Associates, to design the sewer collection and treatment system. On August 21, 1997, Perkins entered into a contract with the District, whereby he agreed to perform various professional engineering services for the design and construction of the District’s proposed sewer collection system. The contract indicated that time was of the essence in completing the engineering work. Perkins agreed to perform the engineering work within 150 calendar days or pay liquidated damages of $150 per day for every day after the 150th day. The 150-day provision could, however, be extended for delays caused by regulatory agencies in providing information necessary to complete the engineering work on the project. This contract is the subject of the instant appeal.
On September 12, 1997, the Board sent a letter to the property owners in the District informing them of the contract between the District and Perkins for the design and preparation of the sewer collection system. By November 6, 1997, Perkins wrote a letter to the District’s chairman, Billy Wilson, advising him that the work was 75% completed, and attaching a preliminary estimate for the cost of the project in the amount of$l,512,957. In the same letter, Perkins stated that his work should be completed within 30 days; however, because he was still waiting to hear about the possible formation of a Fountain Lake Sewer Improvement District, the Hot Springs portion of the project could potentially be affected. In addition, he had not been notified as to whether the Assembly of God Camp Ground and the Fountain Lake School District wanted to be included in the sewer design, which would in turn have an impact on the final line locations and sizes in that area.
Communications between the District and Perkins continued over the next several months. On November 20, 1997, Perkins sent a letter advising the District that the major portion of the engineering work with the District was completed, but Perkins needed to know whether treatment of the sewage would be handled by transporting it to the City of Hot Springs or by the District constructing its own treatment plant. In order to avoid further delay, a deadline of January 5, 1998, was given to the District to resolve that issue. In addition, on November 26, Perkins sent a pre-application package to the Arkansas Department of Pollution Control and Ecology that was signed by the District’s chairman, Billy Wilson. Attached to the pre-application package was the preliminary engineering report that listed a total estimated price of $1,934,000 for the cost of building the sewer within the district boundaries and a total estimated price of $1,107,000 for the cost of transporting sewage to Hot Springs, or a total price of $3,041,000 for the entire project.
On January 16, 1998, Perkins sent another letter to Billy Wilson asking for authorization to conduct additional engineering services pursuant to Section D of the Contract, which granted Perkins the express authority to perform additional engineering services when approved by the Board. The Board unanimously approved the request. On January 21, 1998, Perkins sent applications signed by Billy Wilson to the Arkansas Soil and Water Commission with an attached preliminary engineering report. Although the 150-day period had already expired, the District sent a letter to Perkins on January 26, 2004, thanking him for his continued work on the project.
On May 1, 1998, Perkins sent a letter and a revised cost estimate to the District stating that the total project cost, including the connection fee for transporting the sewage to the City of Hot Springs, would be $3,533,000. On June 9, 1998, the Board discussed bids from bond houses for financing. Final approval for transporting the sewage to the City of Hot Springs was given by that city’s board of directors on July 6, 1998. On July 27, 1998, Ray Owen, the District’s assessor, reported to the Board that the final assessments would be available within two weeks. Also on July 27, the Board authorized Perkins to advertise for construction bids. Perkins then sent out the advertisement for bids on August 12,1998.
On October 1, 1998, the Chancery Court of Garland County entered a temporary restraining order prohibiting the District from selling any bonds or executing any contracts on behalf of the District for a 75-day period, or until the County Court of Garland County had an opportunity to consider a petition for removal filed by a resident of the District on September 23, 1998. Following a recall vote held on November 11, 1998, the County Court ordered the removal of the members of the Board on November 23, 1998. With one exception, a whole new Board was elected, and, by December 14, 1998, the new Board had voted to rescind the assessment. The County Court entered an order rescinding the levy of tax on January 4, 1999.
Meanwhile, Perkins had sent invoices to the District on December 1, 1998, and January 4, 1999, which contained additional charges for interest. He met with the new Board on January 12, 1999, to answer any questions, and on January 14, 1999, he advised the District that if the project were to be discontinued, 100% of the design fee would become due and payable. On February 8, 1999, the Board unanimously voted to dismiss Perkins and Owen from the project, and the District subsequently made no payment to Perkins.
On June 13, 2000, Perkins filed a lawsuit against the District for breach of contract and a lien for “preliminary expenses” pursuant to Ark. Code Ann. § 14-92-238 (Repl. 1998). His complaint also requested prejudgment interest and attorney’s fees. Following a bench trial, the trial court awarded Perkins damages in the principal amount of $212,151.39 and awarded first-lien status to the entire amount under section 14-92-238, thereby insuring payment through a tax levy. In addition, the court ruled that Perkins was entitled to post-judgment interest at the rate of 10% per annum pursuant to Ark. Code Ann. § 16-65-114 (Repl. 2004), but declined to award prejudgment interest. Lastly, Perkins, as the prevailing party, was awarded attorney’s fees in the amount of $87,901 and costs of $1,216.01 pursuant to Ark. R. Civ. P. 54(e), with interest on that amount to accrue at the rate of 10% per annum. Although the trial court concluded that the attorney’s fees and costs awarded to Perkins were not “preliminary expenses” contemplated by section 14-92-238, and therefore could not be collected through a tax levy, it also ruled that the attorney’s fees in the amount of $118,179.50 awarded to the District’s attorneys were collectible as “preliminary expenses” under section 14-92-238.
In the instant appeal, Perkins contends that prejudgment interest is a “preliminary expense” under Ark. Code Ann. § 14-92-238. In addition, he claims that his attorney’s fees and costs are “preliminary expenses” under Ark. Code Ann. § 14-92-238.
On cross appeal, the District contends that the trial court erroneously awarded Perkins damages for breach of contract because payment under the contract was contingent upon the actual construction of the sewage system. The District also argues that even if the contract was not contingent, the trial court erred in finding that all of the damages awarded to Perkins were “preliminary expenses” under Ark. Code Ann. § 14-92-238. The Arkansas Court of Appeals certified this case to us as an issue of first impression. Thus, this court has jurisdiction pursuant to Rule l-2(b)(l) of the Arkansas Rules of the Supreme Court.
2. Standard of Review
In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the findings of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence. Chavers v. Epsco, 352 Ark. 65, 98 S.W.3d 421 (2003) (citing Ark R. Civ. P. 52(a); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001)). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. (citing Sharp v. State, 350 Ark. 529, 88 S.W.3d 848 (2002)).
This appeal also involves an issue of statutory interpretation. We review issues of statutory interpretation de novo because it is for this court to decide what a statute means. City of Maumelle v. Jeffrey Sand Co., 353 Ark. 686, 120 S.W.3d 55 (2003); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002). This court recently set forth its standard of review for statutory construction:
When reviewing issues of statutory interpretation, we are mindful that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). A statute is ambiguous only where it is open to two or more constmctions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. ACW, Inc. v. Weiss, 329 Ark. 302, 947 S.W.2d 770 (1997). When a statute is clear, however, it is given its plain meaning, and this court will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994). This court is very hesitant to interpret a legislative act in a manner contrary to its express language, unless it is clear that a drafting error or omission has circumvented legislative intent. Id.
Cave City Nursing Home, Inc. v. Arkansas Dep’t of Human Servs., 351 Ark. 13, 21-22, 89 S.W.3d 884, 888-89 (2002).
3. Interpretation of Agreement for Engineering Services
The District first contends that the trial court erred when it awarded Perkins compensatory damages in the amount of $212,151.39. Specifically, the District asserts that no money was due and owing to Perkins under the contract because the contract awarded compensation based on the “actual construction costs,” and construction did not occur. In reply, Perkins states the contract was not contingent upon actual construction of the sewage system; rather, the payment provisions within the contract provided a time outline for when payment would be due should construction begin.
The contract contemplates the performance of certain engineering services by Perkins. Those services are specifically listed in Section A of the contract. The dispute at issue here arises under Section B of the contract. That provision states in relevant part:
1. The Owner shall compensate the Engineer for design and contract administration engineering services in the amount as shown in Attachment 1
When Attachment 1 is used to establish compensation for the design and contract administration services, the actual construction costs on which compensation is determined shall exclude legal fees, administration costs, engineering fees, land rights, acquisition costs, water costs, and interest expense incurred during the construction period.
2. The compensation for preliminary engineering services, design and contract administration services shall be payable as follows:
(a) a sum which equals eighty percent (80%) of the compensation payable immediately after the construction contracts are awarded.
(b) A sum equal to fifteen percent (15%) of the compensation will be paid on a monthly basis for general engineering review of the contractor’s work during the construction period on percentage ratios identical to those approved by the Engineer as a basis upon which to make partial payments to the contractor^). However, payment under this paragraph and of such additional sums as are due the Engineer by reason of any necessary adjustments in the payment computations will be in an amount so that the aggregate of all the sums paid to the Engineer will equal ninety-five percent (95%) of the compensation. A final payment to equal 100 percent shall be made when it is determined that all services required by the Agreement have been completed except for the services set forth in Section A-20 hereof.
In connection with these payment provisions under the contract, the trial court made the following findings:
There is no provision in the Contract stating that the engineer would be paid for engineering services contemplated by Section A of the Contract if, for any reason, the project was not constructed. Nor is there a provision providing for payment of various services rendered prior to construction contract’s [sic] being awarded. There is also no provision in the Contract stating that the engineer would not be paid for engineering services if the project was not constructed. From the evidence presented it is obvious to the court that Perkins’ [sic] expected to be paid and that the district intended to pay Perkins for his work. Further, the District did pay Mr. Malone, the first engineer for his work in a reduced agreed upon amount.
Based on these findings, the court awarded Perkins compensatory damages in the amount of $212,151.39.
We conclude that under the express terms of the contract, Perkins was entitled to be compensated for his services. The Restatement (Second) on Contracts §227 (2004) provides explicit standards of preference regarding the interpretation of express conditions located within contracts:
(1) In resolving doubts as to whether an event is made a condition of an obligor’s duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee’s risk of forfeiture, unless the event is within the obligee’s control or the circumstances indicate that he has assumed the risk.
•The following commentary explains the rationale for such standards of preference:
The non-occurrence of a condition of an obligor’s duty may cause the obligee to lose his right to the agreed exchange after he has relied substantially on the expectation of that exchange, as by preparation or performance. The word “forfeiture” is used in this Restatement to refer to the denial of compensation that results in such a case. The policy favoring freedom of contact requires that . . . the agreement of the parties should be honored even though forfeiture results. When, however, it is doubtful whether or not the agreement makes an event a condition of an obligor's duty, an interpretation is preferred that will reduce the risk of forfeiture. For example, under a provision that a duty is to be performed “when” an event occurs, it may be doubtful whether it is to be performed only if that event occurs, in which case the event is a condition, or at such time as it would ordinarily occur, in which case the event is referred to merely to measure the passage of time. In the latter case, if the event does not occur some alternative means will be found to measure the passage of time, and the non-occurrence of the event will not prevent the obligor’s duty from becoming one of performance. If the event is a condition, however, the obligee takes the risk that its non-occurrence will discharge the obligor’s duty... If the event is within his [obligee’s] control, he will assume this risk. If it is not within his [obligee’s] control, it is sufficiently unusual for him to assume the risk that, in case of doubt, an interpretation is preferred under which the event is not a condition.
The Restatement (Second) on Contracts § 221, comment b (2004) (emphasis added). Likewise, another well-recognized treatise on contracts, Corbin on Contracts, states “one who unjustly prevents the performance or the happening of a condition of promissory duty thereby eliminates it as a condition. Thus, that party cannot escape liability by preventing the happening of the condition on which it was promised.” 8-40 Arthur L. Corbin, Corbin on Contracts § 40.17 (2004). See also Am. Jur.: 17A Am. Jur. 2d Contracts § 687 (2004) (“One who prevents or makes impossible the performance or occurrence of a condition precedent, upon which that person’s liability depends under the contract, cannot insist or rely on the condition... A promisor who prevents or hinders the occurrence or fulfillment of a condition in a contract excuses the condition, and the liability of the promisor is fixed regardless of the failure to perform the condition.”).
Our case law also supports this same principle of law in the enforcement of private contracts. In Ingham Lumber Co. v. Ingersoll & Co., 93 Ark. 447, 125 S.W. 139 (1910), Ingersoll entered into a written contract with Ingham whereby Ingham employed Ingersoll to cut and manufacture lumber on its land. After Ingersoll began to perform under the contract, the manager of Ingham notified Ingersoll to stop cutting and manufacturing the timber on account of a shortage of money. In short, Ingersoll wanted to continue its work under the contract, but was prevented from doing so by Ingham. In holding in favor of Ingersoll, we said, “[a] contract is not invalid, nor is the obligor therein in any manner discharged from its binding effect because it turns out to be difficult or burdensome to perform.” Id. We find no reason why the same principle of law should not also extend to a written contract entered into by an improvement district for the purpose of securing the services of an engineer. After all, our case law has never allowed an improvement district to negotiate contracts with parties, abandon the improvement, and then be wholly relieved from its duty to pay for completed preliminary work. Gould v. Sanford, 155 Ark. 304, 244 S.W. 433 (1922) (“preliminary expenses” can be imposed on the property owners of the district, but services performed as part of the issuance for bonds are not services preliminary in nature); Elkins v. Huntington-Midland Highway Dist., 161 Ark. 556, 256 S.W.825 (1923) (allowing recovery of engineering fees as “preliminary expenses”).
In this case, Perkins had no control over whether construction contracts would be awarded or whether the improvement would in fact be constructed. Nevertheless, the District asks us to find that Perkins assumed the risk when he entered into the agreement because payment under the contract was contingent upon actual construction of the sewage system. As explained earlier, when it is doubtful whether or not an agreement makes an event a condition of an obligor’s duty, an interpretation is preferred that will reduce the obligee’s risk of forfeiture unless the event is within the obligee’s control. The Restatement (Second) on Contracts § 221, comment b (2004). Here, the trial court examined the payment provisions of the contract and, in resolving any doubt as to whether construction of the improvement was a condition of the District’s obligation to pay for engineering services performed by Perkins, the trial court adopted an interpretation that reduced the risk of forfeiture. In other words, because construction of the proposed improvement was not within Perkins’s control, he did not assume the risk of forfeiting payment if the project was not constructed. We cannot say that the trial court clearly erred in ruling that payment under the contract was not contingent upon actual construction of the sewage system.
The District nonetheless contends that it had a right to abandon the proposed improvement project. While we certainly agree with the District that an improvement district has a right to terminate construction of a proposed improvement project, Arkansas law imposes an obligation on improvement districts to pay “preliminary expenses” for contemplated improvement projects that are for any reason not made. Arkansas Code Annotated § 14-92-238 (Repl. 1998) specifically provides as follows:
Preliminary Expenses
(a) In case, for any reason, the improvement contemplated by any suburban improvement district organized under this subchapter is not made, the preliminary expense shall be a first hen upon all the land in the district and shall be paid by a levy of a tax thereon upon the assessed value for county and state taxation.
(b) The levy shall be made by the chancery court of the county and shall be collected by a receiver to be appointed by the court.
Ark. Code Ann. § 14-92-238 (emphasis added). The purpose of this statute is to provide a means for payment of “preliminary expenses” incurred by improvement districts in connection with improvements contemplated by such districts even if those improvements are, for whatever reason, abandoned. Thus, to the extent that the engineering services performed by Perkins are deemed to be “preliminary expenses,” construction is not a condition of payment for those expenses under Arkansas law.
4. “Preliminary Expenses” under Ark. Code Ann. § Í 4-92-23 8
While we conclude that payment under the contract was not contingent upon construction of the project, we agree with the District that the trial court erred in finding that all of the damages awarded to Perkins were “preliminary expenses” under Ark. Code Ann. § 14-92-238. Though all the work performed by Perkins was indeed preliminary to the construction phase of the project, Perkins had yet to complete all the work required by the contract. Under the contract, Perkins was obligated to perform an extensive list of engineering services for the District, with certain services to be performed prior to construction and other services to be performed during the course of construction and for a certain period of time thereafter.
As stipulated by both parties, the $212,151.39 fee would have been the payment made by the District had the entire construction project been completed and the contract performed. Although the trial court correctly ruled that payment for engineering services under the contract was not contingent upon actual construction of the project, it erred in finding that the entire sum of $212,151.39 awarded to Perkins was a “preliminary expense” under section 14-92-238. Despite testimony by the District’s expert, William Malone, that “all of the work done or the majority of the work done by the Plaintiff [Perkins] was necessary to determine the cost of the project and the benefits to be derived from the project,” the work performed by Perkins did not consti tute all of the work contemplated under the contract. Moreover, to equate payment of the entire contract price with a “preliminary expense” defies common sense. Section 14-92-238 only provides for payment of “preliminary expenses” when an improvement is abandoned, not fully performed. As we held in Wofford v. Bettis, 169 Ark. 487, 275 S.W.903 (1925), once construction of the improvement begins and the contract is completed, the “preliminary expenses” merge into the general cost of the improvement. We, therefore, reverse and remand for the trial court to determine the portion of compensatory damages awarded that qualify as “preliminary expenses” under Ark. Code Ann. § 14-92-238.
5. Prejudgment Interest
Pursuant to Section E of the contract, Perkins and the District agreed that
[i]f Owner fails to make any payment due Engineer within 60 days for services and expenses and funds are available for the project then the Engineer shall be entitled to interest at the rate of 10% per annum from said 60th day.
Perkins contends on appeal that the trial court erred when it declined to award prejudgment interest as a “preliminary expense” under section 14-92-238. In response, the District asserts that the contract expressly precludes payment of prejudgment interest if funds are not “available” for the project.
Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. Ozark Unlimited Resources Co-op., Inc. v. Daniels, 333 Ark. 214, 969 S.W.2d 169 (1998). Perkins urges this court to award him prejudgment interest based on either the above-quoted contractual provision or our common law. Beginning with the contract, we must first determine whether funds are “available for the project,” as required by Section E of the contract. If funds are available for the project, we must then determine whether prejudgment interest would be recoverable as a “preliminary expense” under section 14-92-238. Both parties agree that an improvement district is an entity that has no assets until it exercises its power to levy a tax. As noted by both the District and Perkins, the Arkansas Soil and Water Conservation Commission set aside $3.5 million in funds from a specific bond program for this improvement project. Upon cancellation of the project, however, those funds were “deobligated.” Thus, no funds “are available for the project.” We therefore hold that Perkins is not entitled to prejudgment interest under the terms of the contract.
Arkansas common law also allows for the recovery of prejudgment interest. In TB of Blytheville v. Little Rock Sign & Emblem, 328 Ark. 688, 697, 946 S.W.2d 930, 934 (1997), we stated the common law rule that a party may recover prejudgment interest where damages are ascertainable with reasonable certainty. Id. However, any attempt by Perkins to rely upon our decision in TB of Blytheville v. Little Rock Sign & Emblem, supra, is misplaced. The terms for payment of prejudgment interest negotiated by Perkins and the District represent a modification of the common law standard for awarding prejudgment interest. As such, we give effect to the plain language of the contract. Chamberlin v. State Farm Mut. Auto Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001); Pardon v. Southern Farm Bureau Cas. Ins. Co., 315 Ark. 537, 868 S.W.2d 468 (1994). See also Hancock v. Tri-State Ins. Co., 43 Ark. App. 47, 858 S.W.2d 152 (1993). Thus, we affirm the trial court on this point.
6. Attorney’s Fees
In his last point on direct appeal, Perkins claims that the trial court erred when it awarded him attorney’s fees and costs as the prevailing party under Ark. Code Ann. § 16-22-308 (Repl. 1999), but then ruled that those fees were not recoverable as a “preliminary expense” under section 14-92-238 (Repl. 1998). Arkansas law allows a prevailing party to recover reasonable attorney’s fees in a breach-of-contract action unless Arkansas law or the contract that is the subject matter of the action provides otherwise. See Ark. Code Ann. § 16-22-308. In this case, the circuit court did award attorney’s fees to Perkins as the prevailing party. The issue, however, is whether these fees should be a tax lien against district land as “preliminary expenses.”
To reiterate, section 14-92-238 mandates that “preliminary expenses” resulting from an improvement that was contemplated by an improvement district but was not made for whatever reason shall be a first lien on the district’s land. The statute also mandates that the “preliminary expenses” shall be paid by a tax levied on the district’s land upon the assessed value for county and state taxation. This court in Elkins v. Huntington-Midland Highway Dist., 161 Ark. 556, 256 S.W. 835 (1923), defined “preliminary expenses.” First, we held that an engineer may recover the $250 that he loaned an improvement district as “preliminary expenses.” See Elkins, supra. We then went on to say that “preliminary expenses” include:
attorney’s fees as counsel to the board in the preliminary work of organization, etc., such costs as expenses for maps, plats, surveys of land and for engineering expenses in preparing the plans and specifications. In other words, all expenses incident to the investigation by which it is sought to determine whether the value of the benefits to the lands by the improvement contemplated would exceed the cost of such improvement and thereby warrant its completion.
Elkins, 161 Ark. At 570-71, 256 S.W. at 839 (quoting Thibault v. McHaney, 119 Ark. 188, 177 S.W. 877 (1917)) (emphasis added). Thus, we sanctioned payment of attorney’s fees incurred by the improvement district’s board as “preliminary expenses.” This court, however, has never intimated that attorney’s fees incurred by the engineer in a lawsuit against the district would be a lien against the district’s land.
[6] Levying a tax on the district’s land (ultimately to be paid by the district’s landowners) for payment of the board’s attorney’s fees is a categorically different matter from- taxing the improvement district for the engineer’s attorney’s fees when that engineer is suing the district. The General Assembly has never provided for such a tax lien; nor has our case law; nor did the contract between the parties in the instant case. Accordingly, we agree with the circuit court that Perkins’s attorney’s fees and costs were not “preliminary expenses” as contemplated by section 14-92-238, and hence, are not subject to a tax levy against the district’s land.
Affirmed in part; Reversed and Remanded in part.
Thornton, J., dissents.
The County Court of Garland County granted the petition to form the District on February 28,1996. The District consists of approximately a four-mile stretch on Highway 7 North in Hot Springs.
In November 1999, Richard A. Perkins (“Perkins”) transferred his stock in Perkins & Associates to Crafton, Tull & Associates. All of the rights and interest in the contract were assigned to Perkins pursuant to the Stock Purchase Agreement. In addition, an assignment of contract rights was executed transferring and assigning all contractual rights and claims with and/or against the District to Perkins.
On December 15,1997, the Board met with the mayor and city manager for the City of Hot Springs regarding the District’s options for disposing of its sewage. On January 7, 1998, the Board met and discussed the advantages and disadvantages of connecting into the Hot Springs sewer system.
Over the entire 150-day period established by the contract for performance, Perkins frequently advised the District that the deadline had become unrealistic due to the fact that the negotiations were continuing with the City of Hot Springs, the Assembly of God Camp Ground, and the Fountain Lake School District.
The amount of preliminary assessments is not indicated in the minutes. Owen filed the official assessment with the County Clerk of Garland County on September 1,1998.
By virtue of Amendment 80 to the Arkansas Constitution, which became effective on July 1,2001, our state courts are no longer chancery and circuit courts. These courts have merged and now carry the designation of “circuit court.”
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Robert L. Brown, Justice.
Appellant Charles Rodgers appeals from his conviction for rape and his sentence to life imprisonment. He asserts three points on appeal. We find no error and affirm the judgment of conviction.
The facts are garnered from the testimony at trial. On June 8, 2002, at 3:30 a.m., Lillian Adams was awakened by a knock on the door of her home. When she opened the door, she found Rodgers, her live-in boyfriend for two years. Following some discussion between the two regarding Rodgers’s hunger, Ms. Adams convinced Rodgers to stay at her home and get some sleep. They both fell asleep on the couch downstairs. Afterwards, they awoke and went upstairs to Ms. Adams’s bedroom. At that time, Rodgers again pressed Ms. Adams to go out and get something for him to eat. She declined and returned downstairs to sleep on the couch, leaving Rodgers in her bedroom to sleep.
At some point later that night, Ms. Adams awoke again, sensing that something was wrong with her then-twelve-year-old daughter, S.A. She went upstairs, entered S.A.’s room, and saw S.A. lying sideways on her bed and Rodgers lying behind her, but facing her. When Ms. Adams called Rodgers’s name, he slid off the bed. He was wearing only his underwear, and he wrapped a blanket around him. After asking S.A. whether he had done anything to her, Ms. Adams removed the covers from her daughter and saw that her shorts and underwear were pulled down. Rodgers continuously denied that he had done anything to the child and stated that he loved both of them and that he had only come to S.A.’s room to check on a pet rabbit he had given to S.A.
S.A. initially told her mother that she did not know if anything had happened while she was asleep. However, a few minutes later, she told her mother that Rodgers had touched her and that her “private part” was hurting “[a] little bit.” Ms. Adams sent S.A. to the bathroom to check herself, and S.A. came back and told her that she was not bleeding but that a “white glup” came out. At that point, Ms. Adams took S.A. to the hospital where a rape kit was performed. Rodgers was arrested later that morning by police. He was subsequently tried, convicted of rape, and sentenced to life imprisonment.
For his first point on appeal, Rodgers argues that during his cross-examination of S.A., he was prevented from inquiring about prior statements she made to medical personnel and police officers about what Rodgers had apparently done to her. He maintains that the circuit court erred in ruling that his cross-examination was beyond the scope of the redirect examination and that it should be limited based upon S.A.’s age. He asserts that as a result, he was prevented from fully cross-examining his accuser.
A review of the record reveals that during redirect examination, the prosecutor asked S.A. if she knew what was “going in and out of [her]” to which she responded, [h]is penis.” Defense counsel, on recross examination, asked S.A. whether she remembered telling the nurse and people at the hospital that it was either a finger or a penis. S.A. responded that she did not remember that. At that time, the prosecutor objected to defense counsel’s question on the basis that he was mischaracterizing the evidence.
At the ensuing bench conference on the objection, the circuit court ruled that defense counsel’s question was outside the scope of the prosecutor’s redirect examination and that the prosecutor’s question only related to previous testimony that Rodgers “put his stuff back in his underwear.” The circuit court told defense counsel that that was the only area it was going to let both sides question S.A. about, and it emphasized the fact that S.A. was only thirteen years old. The circuit court added that it was not going to allow defense counsel’s recross examination to confuse either S.A. or the jury. Defense counsel then replied that he was merely “expounding on the question that at the time she didn’t know and when she got to the hospital it became penis or hand.” The circuit court repeated that it had made its ruling.
This court reviews matters concerning the scope of cross-examination under an abuse-of-discretion standard. See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993). This court has stated that the use of cross-examination is an important tool in bringing the facts before the jury and that wide latitude should be afforded by the trial court. See id. That being said, this court has also held that a circuit court must determine when the matter has been sufficiently developed and when the outer limits of cross-examination have been reached, and unless the trial court’s discretion has been abused, this court will not reverse. See id. In addition, when determining whether cross-examination restrictions have infringed upon an appellant’s confrontation rights, this court looks to the record as a whole to ascertain if the restrictions imposed created a substantial danger of prejudice to the appellant. See Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). This prejudice is not presumed, but must be demonstrated. See id.
In the case at hand, S.A. testified, on recross-examination, that she did not remember telling hospital personnel that it was either a finger or a penis which Rodgers used. Despite that fact, testimony from a previous witness, Mary King, a nurse at Helena Regional Hospital, demonstrates that S.A. told her that Rodgers had been “messing with [her].” When questioned as to what that meant, S.A. told Ms. King that Rodgers had started touching her bottom and that he had gotten on top of her and inserted his penis into her. On cross-examination of Ms. King, defense counsel questioned her as to a statement that was contained in the notes from S.A.’s treatment at the hospital:
Defense Counsel: Now, one of your statements was that “patient alleges that assailant inserted a penis or hand into her vagina.” Is that correct?
Ms. King: No, sir. That’s not my statement.
Defense Counsel: That’s not your statement?
Ms. King: No, sir.
Defense Counsel:Whose statement was that?
Ms. King: That was written by Dr.Yende.
This discussion demonstrates that the information sought to be admitted by defense counsel, which was that S.A. told hospital personnel that she was assaulted by a penetrating hand or penis, was already admitted at the time defense counsel sought to recross S.A. Defense counsel apparently recognized this based on his arguments to the circuit court:
Defense Counsel: . . . Now, the medical records have already been testified to by Ms. King that the patient alleges that the assailant inserted a penis or hand into her vagina. She is the patient. Now, she said he inserted a penis and I am merely expounding on the question he asked in cross-examination that at the time she didn’t know and when she got to the hospital it became penis or hand. And for her to sit here today and say penis — definitively say “penis,” is contrary to what she said — the statements she’s made. And I can — (inaudible).
Despite Rodgers’s contentions to the contrary, adequate evidence was presented that S.A. had at one time told Ms. King that her assailant had inserted a penis into her and that at another time she told hospital personnel that it was either a hand or a penis. Moreover, we are cognizant of the fact that the insertion of either a penis or finger into the vagina of a twelve year old constitutes rape. See Ark. Code Ann. § 5-14-103(a)(l)(C)(i) (Supp. 2003); Ark. Code Ann. § 5-14-101(1), (10) (Supp. 2003). Accordingly, we need not reach the issue of whether the circuit court cut off cross-examination prematurely, because we hold that Rodgers was not prejudiced by the circuit court’s ruling and, hence, the circuit court did not abuse its discretion in limiting Rodgers’s recross-examination of the thirteen-year-old witness.
Rodgers next claims that the circuit court erred by preventing him from questioning Detective Billy Williams when called as a defense witness. Detective Williams was called for purposes of impeaching S.A.’s allegedly inconsistent trial testimony. Rodgers asserts that he should have been able to ask Detective Williams about S.A.’s statements to him, which differed from her trial testimony. The circuit court disallowed this line of questioning of Detective Williams on the basis that it was hearsay.
A review of the record reveals that defense counsel sought to impeach S.A. by demonstrating that in her statement to Detective Williams she failed to mention that she told Rodgers to “get off of her.” At trial, S.A. testified as follows:
Defense Counsel: Do you remember telling Billy Williams that you told Charles Rodgers to get off of you?
S.A.: Yes, sir.
Defense Counsel: Do you remember telling Billy Williams that?
S.A.: Yes, sir.
Defense Counsel: When you went down there to the police department, do you remember them recording the interview — regarding the statement on the tape recorder?
S.A.: Yes, sir.
Defense Counsel: So if you said that, it should be on that tape?
S.A.: I’m not sure.
Defense Counsel: When you talked to him, did he have the tape playing?
S.A.: Yes, sir.
Defense Counsel: Thank you. Pass the witness.
Later on, Detective Billy Williams was called to testify by Rodgers. Defense counsel sought to ask him about certain statements S.A. told him Rodgers made to her. The prosecutor objected on grounds of hearsay, and the circuit court sustained the objection in part because the solicited testimony did not comply with Arkansas Rule of Evidence 613(b), in that S.A. had not first been given an opportunity to admit or deny the alleged statement.
However, we must confess to some confusion about which statement Rodgers is challenging as inconsistent. The circuit court sustained the hearsay objection with respect to a statement made by Rodgers to S.A. and then defense counsel made a proffer of proof to the effect that Detective Williams would have testified that S.A. told him that Rodgers made no statements to her. This was an apparent reference to S.A.’s allegedly inconsistent testimony at trial that Rodgers “told me to be quiet.” However, Rodgers made no proffer relating to her “get off me” statement. Nevertheless, it is only the “get off me” statement by S.A. that Rodgers challenges in his brief.
When challenging the exclusion of evidence, a party must make a proffer of the excluded evidence at trial so that this court can review the decision, unless the substance of the evidence is apparent from the context. See Arnett v. State, 353 Ark. 165, 122 S.W.3d 484 (2003). Here, no proffer was made by Rodgers with respect to whether S.A. told Williams that she had told Rodgers to “get off of her.” Instead, his proffer was premised upon whether S.A. told Williams that Rodgers told her to be quiet. A party cannot change his grounds for an objection or motion on appeal but is bound by the scope and nature of the arguments made at trial. See Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004). Because Rodgers failed to proffer this argument below, we decline to address the argument on appeal. See id.
For his last issue, Rodgers contends that the circuit court erred in giving the dynamite instruction, AMI Crim. 2d 8102, and in denying his motion for declaration of a mistrial which was premised on that misreading and how the court gave that instruction. Rodgers asserts that while the circuit court read AMI Crim. 2d 8102 to the jury, it added its own language which overemphasized the need for a verdict. He claims that this was prejudicial to him, because it had the ultimate effect of forcing the one juror holding out on a guilty verdict to change his or her vote. The State responds that Rodgers’s claim is barred under our contemporaneous-objection rule in that Rodgers failed to object to the circuit court’s giving of the instruction until after the jury had already returned to its deliberations and the court had recessed.
Here, a review of the record reveals that after the jury began deliberations at 3:24 p.m., on December 3, 2003, it informed the circuit court at 7:30 p.m. that it was deadlocked at eleven jurors to one in its decision. The next morning, the circuit court gave the jury the “dynamite” instruction, AMI Crim. 2d 8102, in the presence of both parties. Following that instruction, defense counsel inquired as to whether the jury would be given a copy of the instruction.
The court answered in the negative and then recessed the court. Later, after being notified that the jury had reached a verdict, but before the jury was brought back into the courtroom, defense counsel moved for a declaration of a mistrial on the basis that the circuit court had erroneously supplemented the dynamite instruction which was given to the jury. This, according to Rodgers, was unduly prejudicial.
This court has been resolute in holding that a motion for mistrial must be made at first opportunity. See, e.g., Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). The reason for this is that a trial court should be given an opportunity to correct any perceived error before prejudice occurs. See id. Here, instead of objecting after the circuit court instructed the jury on the dynamite charge, defense counsel waited to move for a mistrial until after the jury had completed its deliberations following the instruction. Because the motion was not made at the first opportunity, we hold that Rodgers’s argument is procedurally barred. See id.
The record in this case has been reviewed for reversible error in accordance with Supreme Court Rule 4-3 (h), and none has been found.
Affirmed.
Thornton, J., not participating.
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Tom Glaze, Justice.
Petitioner Andrew Engram has filed a motion to recall the mandate and reopen his case. Engram was charged in the June 10, 1997, capital murder and rape of Laura White, a security guard working at Sears in North Little Rock. Ajury convicted him on both counts on January 28, 1999, and sentenced him to death. His conviction and sentence were affirmed by this court on May 4, 2000. See Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000). Engram then petitioned to the United States Supreme Court for a writ of certiorari, which the Court denied, see Engram v. Arkansas, 531 U.S. 1081 (2001); this court’s mandate issued on January 12, 2001. On January 22, 2001, an attorney was appointed to represent Engram in postconviction proceedings, but, at a hearing before the circuit court, the attorney opined that there was nothing that merited Rule 37 relief. Engram then, on January 9, 2002, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas.
On April 18, 2003, Engram requested leave from the federal court to file an amended habeas corpus petition in order to raise additional grounds for relief, including a claim that he is mentally retarded and that his execution is barred under the Supreme Court’s holding in Atkins v. Virginia, 536 U.S. 304 (2002). The federal district court granted Engram’s motion to amend, but also raised sua sponte the question of whether Engram had presented his mental retardation claim in state court. After briefing by both Engram and the State, the federal court determined that Engram “did not present the federal constitutional dimensions of his Atkins claim to the state courts.” Further, the federal court disagreed with the State’s contention that Engram was procedurally barred from raising the mental retardation claim, ruling that there was “no question that the legal basis for [Engram’s] Atkins claim was unavailable to him during the state proceedings.” Citing Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003), the federal district court concluded that “a substantial possibility exists that the Arkansas Supreme Court will recall the mandate in this case to consider [Engram’s] Atkins claim.” Thus, the court directed Engram to move to dismiss his amended petition without prejudice, and granted him leave to file a second amended petition that would relate back to his original, timely-filed petition.
Engram filed a motion to dismiss his amended petition, and the federal court granted his motion bn October 7, 2003. Following entry of the federal court’s order, Engram filed in this court a “Motion to Recall the Mandate and Reopen the Case and Brief in Support,” on November 5, 2003. Our court directed that Engram’s motion be submitted as a case, and a briefing schedule was established.
The most recent case in which this court has been asked to recall its mandate and reopen the case under similar circumstances was Robbins v. State, 353 Ark. 556, 114 S.W.3d 217 (2003). In that death-penalty case, Robbins asked this court to recall its mandate in order to address an error alleged to have occurred in the jury’s completion of the sentencing verdict forms. In agreeing that the mandate should be recalled and the case reopened, the Robbins court noted that it was doing so for three reasons: 1) a decision had been cited to the court that was legally on all fours with the issue presented by Robbins; 2) the federal district court had dismissed Robbins’s federal habeas corpus petition because that issue had not been addressed in state court; and 3) it was “a death case where heightened scrutiny is required.” Robbins, 353 Ark. at 564. However, the Robbins court expressed its belief that its holding was “sui generis . . . [and] one of a kind, not to be repeated.” Id. at 564-65 (emphasis added).
Engram contends that this court should recall its mandate and reopen his case based on the fact that, in 2002, the Supreme Court decided the case of Atkins v. Virginia, supra, wherein the Court held that the execution of mentally retarded individuals violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Atkins Court noted that the practice of executing the mentally retarded had “become truly unusual, and it is fair to say that a national consensus has developed against it.” Atkins, 536 U.S. at 316. In addition, the Court held that, given the diminished reasoning capacity of those with mental retardation, neither the retributive nor the deterrent purposes of the death penalty would be served by executing the mentally retarded: “Unless the imposition of the death penalty on a mentally retarded person measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Id. at 319 (quotations and citation omitted).
Although the Atkins decision came down after Engram’s conviction and after the mandate issued in his case, the rule announced in Atkins is retroactive, according to the Supreme Court’s reasoning set out in Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court held that, when a new rule places a certain class of individuals beyond the State’s power to punish, “the Constitution itself deprives the State of the power to impose a certain penalty,” and the new rule should be applied retroactively. Penry, 492 U.S. at 330. Thus, although the Penry Court concluded that executing the mentally retarded was not constitutionally prohibited, it noted that, if a case in the future were to reach that conclusion, the prohibition should be applied retroactively and would apply to defendants on collateral review. Id.
In the present case, Engram argues that this court should read Atkins, as applied retroactively under the reasoning of Penry, in such a way that would permit reopening his case in order for him to raise and address the issue of his alleged mental retardation. Engram concedes that sentencing, this court’s mandate, and the time for postconviction remedies are all long past. Nevertheless, Engram argues that this court can reopen his case under Robbins, because the three factors set out in Robbins have been met, as follows: 1) Atkins is on all fours with his case; 2) the federal court dismissed his habeas petition because the mental retardation issue has not yet been addressed by the state courts; and 3) this is a death case requiring heightened scrutiny.
However, Robbins is significantly distinguishable from Engram’s case. The purpose of recalling the mandate and reopening the case in Robbins was in order to correct an error in the appellate process. For clarity, we briefly address the facts and history of the Robbins case at this stage. First, after Robbins was convicted, he waived his right to direct appeal, and this court subsequently affirmed the trial court’s determination that Robbins was competent to make such a waiver. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998) (per curiam) (Robbins I). Next, we further held that Robbins properly waived his right to seek Rule 37 postconviction relief. State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999) (per curiam) (Robbins II). However, Robbins’s mother filed a next-friend petition asking this court to recall the mandate and re-examine Robbins’s case; we granted her motion, recalled the mandate, stayed the execution, and ordered briefing on the issues raised by Robbins’s mother. State v. Robbins, 337 Ark. 227, 987 S.W.2d 709 (1999) (per curiam) (Robbins III).
After considering the arguments raised as a result of that briefing, this court held that it was the court’s duty to conduct an independent examination of the record to determine whether prejudicial error occurred under Ark. Sup. Ct. R. 4-3(h), whether any Wicks violations occurred during trial, and whether “fundamental safeguards” were in place during the trial. State v. Robbins, 339 Ark. 379, 5 S.W.3d 51 (Robbins IV). In order to accomplish this task, this court appointed amicus counsel to review the record and assist this court in its review, which counsel did.
In Robbins v. State, 342 Ark. 262, 27 S.W.3d 419 (2000) (Robbins V), this court held that no Rule 4-3 (h) errors, Wicks errors, or errors implicating “other fundamental safeguards” occurred during the trial. This court affirmed Robbins’s capital murder conviction and death sentence and dissolved the stay of execution. Following Robbins V, Robbins began, for the first time, to contest his death sentence, and he engaged legal counsel to pursue habeas corpus relief in federal district court. Robbins argued in the subsequent federal proceeding on his habeas corpus petition that an inconsistency in the jury’s verdict forms violated his constitutional rights under this court’s decision in Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995). The State responded that Robbins had exhausted his state remedies by not pursuing a petition for rehearing and that the mandate in the case had issued, foreclosing additional review. The federal district court dismissed Robbins’s habeas corpus petition without prejudice on the basis that Robbins had not exhausted his state remedies. Specifically, the federal district court noted that state courts had not examined Robbins’s inconsistency-in-the-verdict-forms argument under Willett v. State, supra, and that he could “pursue his state remedies, if any.”
Following dismissal of the federal habeas corpus matter, Robbins filed a petition to reopen his case in this court, arguing that this court’s holding in Robbins IV required that the court reopen the case, and that a “fundamental error,” a violation of Robbins’s constitutional rights under Willett v. State, supra, occurred in his case. This court ultimately decided to recall the mandate because of the “extraordinary circumstances” — i.e., a mistake was made in Robbins V, in that an issue was overlooked that would have been reversible error. Thus, the Robbins case hinged on the fact that an error was made during this court’s review, and the recall of the mandate was intended to give this court an opportunity to address an issue that it should have addressed before. And as noted above, the Robbins court stressed that it considered the case “to be one of a kind, not to be repeated.” 353 Ark. at 564-55.
Engram’s case differs from Robbins. For example, unlike Robbins, Engram is not asking this court to review an error alleged to have been made by this court during the course of its appellate review; instead, he is asking us to reopen his case so the trial court can address a matter that was never raised during trial. In State v. Earl, 336 Ark. 271, 984 S.W.2d 442 (1999) (Earl II), this court denied a motion to recall the mandate in similar circumstances. In that case, Earl asked this court to recall the mandate that issued after this court’s opinion in State v. Earl, 333 Ark. 489, 970 S.W.2d 789 (1998) (Earl I), wherein this court held that a search was proper under Ark. R. Crim. P. 5.5. Subsequent to Earl I, the United States Supreme Court held unconstitutional an Iowa search-and-seizure statute that was similar to our Rule 5.5. See Knowles v. Iowa, 525 U.S. 113 (1998). In Earl II, Earl asked this court to recall its mandate on the basis of the Supreme Court’s decision in Knowles, but this court declined to do so, stating that Earl “never timely challenged Rule 5.5’s constitutionality at his hearing below or on appeal, and he did so only after the [Supreme Court] case was decided and after our court’s mandate was issued.” Earl II, 336 Ark. at 272.
Engram’s situation is more like Earl than Robbins. Despite Engram’s arguments that he did not have the tools to raise a mental-retardation argument vis-a-vis the issue of execution at the trial level, Engram could have availed himself of Ark. Code Ann. § 5-4-618(b) (Repl. 1997), which explicitly provides that “[n]o defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” As this court has previously held in Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997), “a defendant who wishes to invoke this provision must do so by written motion prior to trial. § 5-4-618(d)(l). If such motion is filed, the trial court must determine prior to trial whether the defendant is in fact mentally retarded.” Rankin. 329 Ark. at 390 (citing § 5-4-618(d)(2)). Here, Engram simply did not file such a motion, nor did he request a court ruling on the issue of his mental retardation. In fact, a hearing was conducted on Engram’s competency on March 19, 1998, and Engram offered no evidence at that hearing showing he was mentally retarded. As described below, forensic psychologist Dr. John Anderson testified on behalf of the State; Engram, however, put on no evidence regarding his mental status, although it was his burden to prove mental retardation. See § 5-4-618(c). Consequently, the trial court had no duty to rule on this issue.
At that hearing, Dr. Anderson testified that he conducted a forensic psychological examination of Engram, and administered the Kaufman Brief Intelligence Test in order to determine whether Engram was mentally retarded. Dr. Anderson stated that Engram scored an 81 on the composite results, 82 on the vocabulary, and 83 on the non-verbal scores. Applying a “confidence interval” of plus-or-minus five points, Dr. Anderson testified that Engram’s “true score, or a score if he were administered this test a repeated number of times and you could control for learning and fatigue and that sort of thing, it would likely fall between the scores of 76 and 86.” Dr. Anderson stated that this score did not indicate mental retardation, and his opinion was that Engram was not mentally retarded.
On cross-examination, Dr. Anderson agreed that, given the margin of error, Engram’s IQ score could be as low as 76, which would be in the borderline range of general abilities, or in the area between mental retardation and average functioning. Upon questioning by the court, Dr. Anderson said that a score of 76 to 86 would be in the “low average” range, and that any score above 78 or 80 “would be, I guess, what most people think of as a normal score.” According to Dr. Anderson, the mean IQ score is 100, and anything between 80 and 120 would be considered “normal.”
At the conclusion of the competency portion of the hearing, the State asked that Engram be found competent, and the court complied. However, neither the defense nor the State asked for a ruling on the question of whether Engram was mentally retarded, and the trial court did not make such a ruling. It is sufficient to point out that this court has held that, where a defendant has an intelligent quotient which is above that 65 quotient prescribed by law, he is not entitled to the rebuttable presumption of mental retardation under the statute. See Reams v. State, 322 Ark. 336, 909 S.W.2d 324 (1995). This may well be the reason Engram failed to raise the mental retardation defense. See id.
As in Earl II, the issue on which Engram asks this court to recall the mandate is an issue which could have been resolved by the trial court, if only Engram had presented evidence bearing on this retardation issue and had asked for the trial court’s ruling. We agree with the State’s contention that a mental retardation claim cannot be raised at just any time in a defendant’s proceedings. At oral argument, there was a suggestion that Engram’s mental retardation claim could be considered as falling within one of the so-called Wicks exceptions, wherein this court may consider an argument raised for the first time on appeal when the trial court failed to bring to the jury’s attention a matter essential to its consideration of the death penalty itself. See Wicks v. State, 270 Ark. 781, 785, 606 S.W.2d 366, 369 (1980). However, as described above, testimony presented to the trial court indicated that the lowest Engram’s IQ score could be was 76. As already noted, Arkansas’ statute creates a rebuttable presumption of mental retardation at an IQ of 65. See § 5-4-618(a)(2). Therefore, because Engram could not have availed himself of this presumption, there was no duty on the trial court’s part to raise, sua sponte, the issue of whether Engram was not eligible for the death penalty.
This is simply not a case like Robbins, where the alleged error was an error in this court’s own review of the case on appeal, and this court was asked to reopen the case to address its own error. Because Robbins was so strictly limited to its facts, this court made it clear that it would not expand the nature of cases in which it will recall a mandate it has already issued. Here, since it was Engram’s burden to do so, he should have obtained a ruling on his mental retardation issue from the trial court before his trial ever started.
Instead, Engram never pursued the mental retardation issue, likely for the reason that there was no evidence offered to support such a defense. After all, Dr. Anderson testified that Engram’s IQ was between 76 and 86. The General Assembly has set the threshold for presuming mental retardation exists at 65. Although Engram argues briefly that this figure is too low (and therefore does not comport with Atkins), the establishment of that presumption is a legislative determination. Further, even if we were to rewrite the statute and declare that the presumptive IQ score indicating mental retardation is 70-75, Engram would still not fall within that range. He had a tested IQ that, at its lowest, was 76. Therefore, even applying the more expansive 70-75 score utilized in Atkins, Engram still would not have qualified as being mentally retarded.
The fundamental problem with Engram’s argument, however, is simply that this is an argument that should have been made to the trial court. As in Earl II, he did not raise it, and the fact that the Supreme Court has subsequently spoken on the constitutionality of the issue does not change the fact that he could — and should — have attempted to avail himself of § 5-4-618 at trial. Even though the federal district court, in dismissing Engram’s habeas petition, noted that Engram “did not present the federal constitutional dimensions of his Atkins claim to the state courts,” Engram could have raised the issue well before now, as was done in Atkins. There, Mr. Atkins raised the issue in his trial, even knowing that the Supreme Court had considered and rejected a similar constitutional argument in Penry v. Lynaugh. There is simply no merit to Engram’s contention that he could not have made his federal constitutional argument before now.
Further, this court has already held that the Supreme Court’s decision in Atkins “merely reaffirmed this state’s preexisting prohibition against executing the mentally retarded” found in § 5-4-618. See Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). Engram, of course, takes issue with this interpretation, arguing that § 5-4-618 and the holding in Atkins “are not the same,” since Atkins removes the mentally retarded from the class of persons eligible for the death penalty, while the statute makes the issue something that can be waived by not raising it before trial. Flowever, Atkins explicitly noted that “[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.... [Therefore], we leave to the States the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences.” Atkins, 536 U.S. at 317. Arkansas has made § 5-4-618 the “way[ ] to enforce the constitutional restriction,” and Engram did not comply with it. See Anderson, supra (pointing out that § 5-4-618 “specifically places the burden on the defendant to prove mental retardation at the time of committing the offense by a preponderance of the evidence”).
Engram alternatively argues that he should be permitted to file a Rule 37 petition for postconviction relief. As mentioned above, following this court’s initial decision in Engram, Engram was appointed counsel to pursue any appropriate Rule 37 relief. At a hearing held on June 25, 2001, Engram’s appointed attorney informed the trial court that she had reviewed the record, discussed the matter with Engram, and concluded that there were no “issues that were appropriate for Rule 37.5 relief.” Counsel therefore concluded that the next step for Engram would be to pursue federal habeas relief. Upon questioning by the court, Engram stated that he agreed with his attorney’s assessment. Thus, Engram had the opportunity to pursue any available or appropriate Rule 37.5 relief, and chose not to do so.
In any event, the time for filing a Rule 37 petition is long since past; the rule provides that a petition for postconviction relief must be filed within sixty days of the mandate being issued following direct appeal. The cases on which Engram relies — Jackson v. State, 343 Ark. 613, 37 S.W.3d 595 (2001), and Porter v. State, 339 Ark. 15, 2 S.W.3d 73 (1999) — are factually distinguishable. Although this court in those two cases permitted the filing of a Rule 37.5 petition outside the time limits prescribed in the rule, in Jackson, it was because there was some confusion about when Jackson’s attorney had been appointed; in Porter, there was a question about whether Porter had been appointed counsel. In Porter, this court noted the following:
Rule 37.2(c) clearly states that if an appeal was taken of the judgment of conviction, a petition claiming relief under this rule must be filed in the circuit court within sixty days of the date the mandate was issued by the appellate court. We have held that the filing deadlines imposed by this section are jurisdictional in nature and that if they are not met, a circuit court lacks jurisdiction to consider a Rule 37 petition or a petition to correct an illegal sentence on its merits. Petree v. State, 323 Ark. 570, 920 S.W2d 819 (1995).
However, while there is no constitutional right to a postconviction proceeding, when a State undertakes to provide collateral relief, due process requires that the proceeding be fundamentally fair. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997) (quoting Robinson v. State, 295 Ark. 693, 751 S.W.2d 335 (1988)). Here, the question becomes whether it is “fundamentally fair” to require an inmate on death row to abide by the stringent filing deadlines when he was under the impression he was represented by counsel and that said counsel was timely filing the proper pleadings (such as a petition under Rule 37) on his behalf.
Porter, 339 Ark. at 18.
Here, unlike the situations in Jackson and Porter, there has been no confusion about when filing deadlines occurred or about whether counsel had been appointed. Engram and his Rule 37 attorney made a deliberate decision not to pursue postconviction relief. There is no provision in our law that provides for petitions for “post-postconviction relief,” i.e., a mechanism for filing an ineffective-assistance-of-counsel petition with respect to •the counsel appointed to handle the Rule 37 petition. Engram’s state court remedies with respect to postconviction relief have been exhausted.
Finally, Engram suggests that he might be able to pursue some form of state habeas relief, since there is no time limit on filing a petition for writ of habeas corpus based on an illegal sentence. See Renshaw v. Norris, 337 Ark. 494, 989 S.W.2d 515 (1999) (to impose time limits on habeas relief “would contravene the proscription against suspending the right to habeas corpus.”). However, a writ of habeas corpus will only be issued if the commitment was invalid on its face, or the sentencing court lacked jurisdiction. See Flowers v. Norris, 347 Ark. 760, 68 S.W.3d 289 (2002). Clearly, the sentencing court in Engram’s case possessed jurisdiction, and because Engram failed to get a ruling from the court that he was mentally retarded, the sentence of death was not invalid. Therefore, state habeas relief is not a proper avenue for Engram.
In sum, this court declines to recall its mandate and reopen the case. Engram’s situation is factually and legally distinguishable from the Robbins case; the time for seeking Rule 37 relief is long past; and state habeas relief is not appropriate. Because the record reflects that Engram has exhausted his right to assert an Atkins defense in state court, he is left to pursue any such relief in the federal courts.
Corbin, Brown, and Thornton, JJ., dissent.
At oral argument, counsel for Engram asserted that, despite the existence of § 5-4-618 at the time of his trial, he has never had the opportunity to present this argument as an Eighth Amendment claim. Counsel stated that “we [only now] realize under Atkins that an individual has that Eighth Amendment right. The whole thing is [that] the State is banned from executing the mentally retarded.” However, under § 5-4-618, the State is barred from executing the mentally retarded; as noted above, the statute explicitly provides that “[n]o defendant with mental retardation at the time of committing capital murder shall be sentenced to death.” See § 5-4-618(b). Further, the statute prohibits even the “death qualification” of the jury when the trial court determines that the defendant is mentally retarded. See§ 5-4-618(d) (2) (B). Simply put, Engram offers no explanation why his Eighth Amendment argument — i.e., that the Eighth Amendment prohibits the execution of the mentally retarded — is not resolved by the application of our statute, which prohibits the execution of the mentally retarded. As the State noted at oral argument, under Atkins, the Eighth Amendment is satisfied when a state has in place a procedure that allows defendants to raise and be heard on the issue of their alleged mental retardation. Arkansas has such a procedure in § 5-4-618.
In addition, even to the extent that Wicks allows certain arguments to be raised for the first time on appeal, we note that the present stage of these proceedings hardly constitute “the first time on appeal.” We are now past the trial, the appeal, the postconviction proceedings, and part of the federal habeas process.
We note that Atkins does not declare that the Constitution requires states to set a threshold for mental retardation of 70 or 75. Instead, Atkins merely pointed out in a footnote that current psychological diagnostic materials “typically consider! 1” an IQ between 70 and 75 or lower to be “the cutoff IQ score for the intellectual function prong of the mental retardation definition!.]” Atkins, 536 U.S. at 309, fn.5.
One of the dissenting opinions asserts that the burden was on the trial court to rule on the issue of Engram’s mental retardation. However, § 5-4-618(d)(l) explicidy provides that “[a] defendant on trial for capital murder shall raise the special sentencing provision of mental retardation by motion prior to trial!’ (Emphasis added.) No such motion appears in the trial record. It was Engram’s responsibility to file a motion under § 5-4-618 to avoid application of the death penalty, See Rankin, supra.
It is also apparent that Engram has not heretofore had a problem with raising constitutional arguments he was sure to lose on: in his direct appeal, he argued both that there was an unconstitutional overlap between capital murder and first-degree murder, and that the admission of victim-impact evidence is unconstitutional. See Engram, 341 Ark. at 206,209. Indeed, with respect to both of those arguments, this court noted that Engram conceded in his brief that “this court ha[d] resolved this issue unfavorably to his position in numerous cases.” Id. Clearly, had he wanted to raise the mental retardation issue before, he would have.
Even if Engram had opted to argue in a postconviction proceeding that his trial attorneys were ineffective for failing to raise or preserve the issue of his alleged mental retardation, it is unlikely that he would have been successful. This court has frequently held that it is not ineffective assistance of counsel to fail to make a meritless objection. See Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001); Trimble v. State, 336 Ark. 437, 986 S.W.2d 293 (1999). According to Dr. Anderson, Engram’s IQ was, at the lowest possible range, a 76. As noted above, Arkansas has established an IQ of 65 as the point at which it may be presumed that a defendant is mentally retarded. Therefore, Engram’s trial attorneys could have reasonably considered it fruitless to raise the issue of whether Engram was mentally retarded, and they most likely would not have been found ineffective for their failure to do so. | [
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Per Curiam.
By per curiam opinion delivered May 20, 2004, R.S. McCullough, counsel for appellant, Calvin Lamont Walker, was ordered to appear before this court on June 3, 2004, to show cause why he should not be held in contempt for his failure to perfect this appeal. Walker v. State, No. CR 04-456 (May 20, 2004). Although Mr. McCullough filed a timely notice of appeal from Walker’s conviction judgment, he failed to file the record with this court in order to perfect Walker’s appeal. Id.
Mr. McCullough appeared before this court on June 3, 2004, and entered a plea of not guilty to the contempt citation. We appointed a master, Hon. John E. Jennings, to determine the facts in this case. Walker v. State, No. CR 04-456 (June 10, 2004). On November 30, 2004, Judge Jennings issued his Report of Special Master in which he found “no good reason for Mr. McCullough’s failure to obtain a certified partial record nor his failure to pursue the application to have Mr. Walker declared indigent.” He further found “no reason at all for Mr. McCullough’s failure to respond to the efforts by the clerk to try to resolve the problem.” In sum, Judge Jennings concluded that no reasonable cause had been shown for Mr. McCullough’s failure to perfect Walker’s appeal.
Based on the foregoing, we hold that Mr. McCullough is in contempt of court for failing to perfect this appeal on behalf of Calvin Lamont Walker. We assess a fine of $250.00 plus the court reporter expenses incurred by this court as a result of the hearing before the Special Master. The total amount assessed shall be paid within thirty days from the date of this per curiam. A copy of this order will be forwarded to the Committee on Professional Conduct. | [
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RITA W. GRUBER, Judge
hOn February 3, 2006, James Mosley, Jr., pleaded guilty to two counts of possessing a controlled substance with intent to deliver; he was sentenced to 216 months’ imprisonment on the first count and 120 months’ suspended imposition of sentence on the second count. The conditions of his suspension included a requirement that he “live a law-abiding life, be of good behavior, and not violate any state, federal, or municipal law.”. On December 30, 2014—after he was released on parole—the State filed a petition to revoke suspension, alleging in part that he had violated its conditions by committing kidnapping, aggravated assault, possession of firearm by a felon, and third-degree battery. At the conclusion of a revocation hearing, the court granted the petition to revoke and sentenced Mosley to 144 months in the Arkansas Department of Correction. He timely appeals the resultant sentencing order entered on Juñe 16, 2016.
Mosley contends that the circuit court erred in finding that he violated terms of his suspension. He argues that the court failed to specify which criminal acts were proven and that the State failed to offer sufficient proof of the presence of physical injury, an element of third-degree battery. The State responds that the record belies Mosley’s claim regarding the circuit court’s failure to specify which criminal acts were proven and that, as the court specifically found, the State proved by a preponderance of the evidence that crimes had been committed. The State asserts that any degree of assault, battery, false imprisonment, or possession of a firearm by a felon was a sufficient basis for revocation. We affirm.
In order to revoke a probation or a suspended imposition of sentence, the circuit court must find by a preponderance of the evidence that the defendant has inexcusably violated a condition of the probation or suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2015). Thus, to sustain a revocation, the State need show only that the defendant committed one violation. Prackett v. State, 2014 Ark. App. 394, at 2.
Evidence that may not be sufficient to convict can be sufficient to revoke due to the lower burden of proof required for revocation. Newborn v. State, 91 Ark. App. 318, 210 S.W.3d 153 (2005). A circuit court’s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Id. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Boyd v. State, 2014 Ark. App. 336. An appellant need not move for dismissal in a revocation proceeding in order to challenge the sufficiency of the evidence on appeal. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001).
Teenagers Atwann Stinnett and Carrell White testified that on December 16, 2014, they were met outside a house by a man and were brought inside, where they were held while Mosley—armed with a silver and black automatic gun—asked who was responsible for a burglary of his “stuff.” They testified that Mosley hit, slapped, and kicked Stinnett until he agreed to lead Mosley to the person responsible; that the two of them were in the house about an hour and a half; and that, without being released and while en route to another location, they escaped. Stinnett testified that his face was bruised and scratched by Mosley, who threatened that he or one of his “home boys” would take Stinnett to the country and kill him. Mosley testified in his own defense; he denied holding Stin-nett and White in the house, having a gun, threatening to kill or batter Stinnett, or doing anything more than talk to them about the missing $3000 and televisions.
The circuit court, stating that the case came down to credibility, found that the teenagers testified fairly consistently about what had happened and that nothing suggested a reason for them to lie. Noting testimony “that the gun was being waved at the same time there were threats” and that Mosley threatened to take Stinnett out and kill him, the court discounted Mosley’s own testimony that he simply talked to Stinnett and White and that they came and left voluntarily. It found by the preponderance of evidence “that these two young men were falsely imprisoned at the very least, that there was an assault upon them, that Mr. Mosley was in possession of a firearm as a [felon], and that he did commit battery in the third degree.” On this basis, the court granted the petition to revoke.
A person commits assault in the third degree if he or she purposefully creates ^apprehension of imminent physical injury in another person. Ark. Code Ann. § 5-13-207 (Repl. 2013). An individual commits battery in the third degree when, with the purpose of causing physical injury to another person, the individual causes physical harm to any person. Ark. Code Ann. § 5-13-203(a)(l). A person commits false imprisonment in the second degree if without consent and lawful authority, the person knowingly restrains another person so as to interfere substantially with the other person’s liberty. Ark. Code Ann. § 5—11— 104(a). Additionally, it is unlawful for an individual convicted of a felony to possess a firearm under Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016). See also Pratt v. State, 2011 Ark. App. 185, at 1 (stating that “although evidence may be insufficient in a probation-revocation proceeding to sustain an allegation that appellant committed a specific offense, revocation will be sustained if the evidence establishes a lesser-included offense”).
Here, the conditions of Mosley’s suspension required that he not violate any laws. We cannot say that the circuit court clearly erred in finding by a preponderance of the evidence that Mosley committed the crimes of false imprisonment, assault, possession of a firearm as a felon, and battery in the third degree. Thus, we affirm the revocation of his suspension.
Affirmed.
Abramson and Virden, JJ., agree. | [
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DAVID M. GLOVER, Judge
| ] Jeremy Myers was convicted by a Jefferson County Circuit Court jury of first-degree endangering, the welfare of a minor. He was sentenced by the trial court to six years in prison. His sole point on appeal is that the trial court erred in not giving the-jury an instruction on third-degree endangering the welfare of a minor. We affirm.
D.B., who was born on January 26, 2014, and is the son of Myers’s girlfriend, Jor-dyn Billingsley, is the victim in this case. Myers was left alone to care" for D.B. on three occasions in 2014—February 25, April 28, and May 28. D.B. was admitted to Arkansas Children’s-Hospital on May 29 with numerous injuries, including skull fractures, broken ribs, broken legs, and a broken wrist. Myérs' was arrested and eventually convicted of endangering the welfare of a minor in the first degree.
hMyers argues the trial court erred in not giving a jury instruction on endangering the welfare of a minor in the third degree. An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. Cole v. State, 2013 Ark. App. 492. Once an offense is determined to be a lesser-included offense, the circuit court is obligated to instruct fhe jury on that offense only if there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the lesser-included offense. Id. A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an abuse of discretion. Id.
A person commits endangering the welfare of a minor in the first degree if, “being a parent, guardian,, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely engages in conduct creating a substantial risk of death or serious physical injury to a minor.” Ark. Code Ann. § 5-27-205(a)(l) (Repl. 2013). A person commits the offense of endangering the welfare of a minor in the third degree “if the person recklessly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of a person known by the actor to be a minor.” Ark. Code Ann. § 5-27-207(a)(l).
Even assuming endangering the welfare of a minor in the third degree is a lesser-included offense of endangering the welfare of a minor in the first degree, Myers has failed to demonstrate there was a rational basis for giving the instruction for endangering the welfare |aof a minor in the third degree to the jury. Myers argues on appeal there was a rational basis for acquitting him of first-degree endangering the welfare of a minor and convicting him instead- of third-degree endangerment. Specifically, he argues the jury could have found credible his testimony that he did not mean to hurt D.B. when he squeezed him, and therefore he only recklessly engaged in conduct creating a substantial risk of serious harm instead of purposely engaging in conduct creating a substantial risk of death or serious physical injury. We disagree.
Angela Billingsley, D.B.’s grandmother, testified she did not notice any significant injuries to D.B. until after he and his mother had begun to reside with Myers; during the first part of May, she noticed DJB.’s head was larger than it should have known. She said Myers had watched D.B. on May 28, and the next day D.B. was lethargic and had bruises over his left eye and on his face. After taking D.B. to the pediatric clinic at Arkansas Children’s Hospital (Children’s), it was determined he had significant injuries.
Dr. Karen Farst, a pediatrician at Children’s, testified as an expert in both general and child-abuse pediatrics and recounted that she had treated D.B. on May 29, 2014; his head was disproportionately large as to the rest of his body; he seemed lethargic and quiet; there were visible bruises on his forehead and both sides of his face near the jaw line, with two noticeable circles on the jaw line and a small circle near the ear, which Dr. Farst explained was a very typical bruise for an injury inflicted on an infant generally caused by three fingers squeezing the face; and more bruises were discovered on his body when his clothes were removed. D.B.’s CAT scan revealed abnormal findings, including a large amount of subdural blood | ¿between the skull and brain on both sides of the brain lobes, as well as two skull fractures; the fluid was causing so much pressure on D.B.’s brain that he required emergency removal of the fluid to relieve the pressure on his. brain and to keep his condition from deteriorating. Dr. Farst explained the most common reason for blood and fluid to collect between the skull and brain was trauma; there was no evidence of hemophilia or other reasons for D.B. to have such issues. Dr. Farst explained that the blood was chronic, meaning it was not recent, but rather was two weeks to a month old; it was her opinion the subdural hematoma had occurred about a month before D.B. was brought to the emergency room. D.B. ultimately had to have a shunt inserted into his brain cavity to continually drain the fluid from his brain. There were also two skull fractures, one on the right parietal bones, and one on the left parietal bones; the two fractures were in different locations and were not part of one continuous injury, but were separate injuries. Dr. Farst testified it was not typical for infants to have skull fractures—that required traumatic impact to the head, which could be caused by a blow to the head or a significant fall, and the fact that D.B. had two different skull fractures made it unlikely a single drop or fall would account for the injuries.
Dr. Farst testified D.B. had forty fractures, many in his rib cage, but in other parts of his body as well; infants could not inflict this amount of injury on themselves; D.B.’s injuries indicated multiple episodes of injury; the most common mechanism for rib fractures was compression of the rib cage; it would be quite unusual to see multiple rib fractures in a line from a single blow; and in D.B.’s case, the numerous fractures in a line would indicate a very forceful, violent compression, not one that happened in normal, everyday care. Bruises on|RD.B.’s chest and back corroborated that there had been pressure on his chest; the bruising was more noticeable on the left side of his chest, which matched the fact that most acute fractures were on his left side.
An x-ray of D.B.’s right femur indicated an acute fracture, with the bone being broken straight across; Dr. Farst explained that the femur is the largest bone in the body and is difficult to break straight across; such a break requires that a very high-force energy and a torque or bending force, such as someone stepping on the bone or actually bending the bone, would have to be applied. She explained this fracture would cause immediate pain and distress and would not occur from a routine household fall. An x-ray of D.B.’s left tibia revealed that the edge of the bone showed stages of healing around both sides and also at the base; injuries to the tibia to the extent of D.B.’s injuries are not normal for routine household falls and handling. Additionally, D.B;’s right wrist was broken, and an x-ray of his right foot indicated several fractures with thickened bone around the edge, caused from the foot being squeezed or by someone stepping on or crushing the foot. Dr. Farst testified it would be fair to say that D.B. had been close to death when he arrived in the emergency room, due to a significant recent episode of trauma coupled with the prior existing injuries, causing a rapid decline and a need for emergency intervention.
In a statement to police on May 29 after D.B. had been taken to the hospital, Myers said he thought the skull fracture happened when D.B. was in his care and rolled off the bed in April based on the doctor’s statement it had happened about a month ago. Myers admitted in his own statement that he had become frustrated with D.B.’s screaming and had squeezed | fihim; while he did not think he had squeezed hárd enough to hurt him, even though he admitted having left a bruise on one occasion, he “guessed” he had done it. Myers indicated that four days before D.B. was admitted to the hospital was the last time he had squeezed D.B., it was the hardest he had ever squeezed him, and his hand matched the bruises on D.B. Myers also admitted he had pinched D.B. and had covered his mouth when he would not stop crying. He further stated he had caught D.B. py his head to keep him from rolling off the bed the day before he was admitted to the hospital, and he might have rolled over on D.B.’s leg while trying to catch him.
Jordyn Billingsley testified she never saw Myers do anything to cause serious injury to D.B.; however, she admitted Myers pinched D.B., squeezed him, bit him on more than one occasion, and covered D.B.’s mouth to stop him from crying and screaming. She stated that when Myers admitted D.B. had fallen off the bed while he was watching him on April 28 and that he had also bitten D.B., she told him he could not be around D.B. because when he got frustrated, he did things to D.B. he should not do. However, she still allowed Myers to keep D.B. on May 28; during that time, Myers grabbed D,B. to keep him from rolling off the bed and admitted he had squeezed D.B. harder than he had ever squeezed him before because D.B. would not stop crying.
Myers testified in his own defense, admitting D.B. had fallen off the bed while he was watching him on April 28 and seemed lethargic and unresponsive a few hours after the fall; however, he stated D.B. seemed to wake up after Myers gave him a bath. After the bath, Myers said he had been playing with D.B., and he began to get fussy; while he was kissing 17him, he bit.D.B. and left a mark on him. After this incident, he agreed that Billingsley kept him away from D.B. for two or three weeks, but that he kept D.B. again on May 28. He said he had been feeding D.B. on the bed and felt him begin to “slide a little” and reached back and grabbed him; when bruises appeared on DJB.’s face, Myers said he thought they were from him grabbing D.B., even though he did not think he had done it with enough force to leave bruising. Myers stated he learned that D.B. had skull fractures and a broken leg the next day after Billingsley had taken D.B. to the hospital. Myers testified he wondered if the skull fracture had occurred when D.B. fell off the bed, and he thought he might have been holding D.B. too tightly at times; but at trial, Myers testified that after hearing Dr. Farst’s testimony, he did not think that he had squeezed D.B. hard enough to break a bone. Myers said other than the biting and pinching, he had never done anything to leave a mark on D.B., and he claimed he had not done those things on purpose. However, he admitted when he was frustrated and upset, he would pinch, squeeze, bite, and cover D.B.’s mouth to muffle his screams. Myers also admitted he had squeezed D.B. on May 28 harder than he had ever squeezed him before, although he did not think it was hard enough to break ribs.
Intent is seldom capable of proof by direct evidence and must usually be inferred from- the circumstances of the crime. Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). A person acts purposely with respect to his conduct or a result of his conduct when it is his conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Repl. 2013). It is the conduct, not the intended result, that must be undertaken purposefully. Flurry v. State, 2014 Ark. App. 128. Because of the difficulty in determining a |sdefendant’s intent, there is a presumption that a person intends the natural and probable consequences of his actions. Banks v. State, 2011 Ark. App. 249. Here, Myers admitted he had bitten, pinched, and squeezed D.B. By his own testimony, Myers admitted he had squeezed D.B. the hardest he had ever squeezed him immediately prior to D.B.’s admission to the hospital, where the acute rib fractures were discovered. Myers’s actions were not reckless—they were actions that he purposely undertook after he had become upset and frustrated when D.B. would not stop crying. There was no rational basis for giving an instruction on third-degree endangering the welfare of a minor, and the trial court did not abuse its discretion in refusing to give such an instruction to the jury.
Affirmed.
Gladwin, C.J., and Virden, J., agree.
. Myers makes no argument with respect .to endangering the welfare of a minor in the second degree.
. Myers is not D.B.’s biological father.
. The Slate, neither at the circuit court level nor on appeal, made any argument or gave any response to Myers's assertion that third-degree endangering the welfare of a minor is a lesser-included offense of first-degree endangering the welfare of a minor. | [
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ROBERT J. GLADWIN, -Chief Judge
11 This appeal returns to our court following our order for rebriefing. See Cummings v. Cummings, 2015 Ark.App. 517, 2015 WL 5734412. With the deficiency that necessitated rebriefing cured, we now address the merits of Harry Cummings’s domestic-relations appeal. On appeal, we must decide whether the trial court erred by holding Harry in contempt and with its award of alimony to Rebekah Cummings. Finding no error, we affirm.
I. Facts and Procedural History
On April 23, 2010, after nearly twenty years of marriage, Harry filed a complaint for divorce from Rebekah. Rebekah answered the complaint and counterclaimed for divorce requesting temporary and permanent alimony.
Following a final divorce trial, the trial court granted the parties’ divorce and ordered their personal property divided. The trial court took the remaining issues under advisement.. Later, the court issued a letter opinion outlining its ruling on the outstanding issues. For purposes of , our review, we note that the trial court’s letter opinion ordered (1) that the 12marital home would be listed with a realtor for three months, and if not -sold during that time, it would be sold at auction for an amount greater than 'or equal- to the parties’ indebtedness on the house; (2) that Harry pay rehabilitative alimony in the amount of $500 per month for five years commencing after the marital home was sold; and (3) that Rebekah had a fifty-percent interest in Harry’s military retirement benefits. A final divorce decree memorializing the court’s ruling was entered on July 19, 2011.
The trial court entered an amended final decree on December 22, 2011, after the sale of the marital home. This decree set a date for alimony payments to commence and provided a formula for calculating the amount of Harry’s retirement benefits to which Rebekah was entitled.
On January 4, 2012, Harry filed a motion seeking to have his alimony reduced. In his motion, Harry asserted that the parties’ divorce decree awarded him $15,956 from Rebekah’s, share of the net sales proceeds of the house. But, based on the sales price of the house, only $3,329,90 was available. He petitioned the court for an offset in the amount of $12,626.10 and asked the court to reduce his rehabilitative alimony «payments to $289.56 per month for five years to satisfy this amount. Rebekah objected to this, but, in a second amended final decree, the trial court ultimately reduced Harry’s alimony obligation to $289.56 per month to offset the credit balance owed to him by Rebekah.
| ¡¡Following the entry of the second amended final decree, an issue regarding Harry’s retirement benefits arose. Around November 2012, Harry retired and, shortly thereafter, he was placed on full disability. The disability classification resulted in a loss of retirement benefits.
On March 20, 2013, Rebekah petitioned the trial court to modify alimony to compensate for the change in Harry’s retirement benefits. Harry objected to any increase in alimony.
In her motion, Rebekah also argued that Harry was not providing her with information regarding his military benefits. On October 7, 2013, the trial court ordered Harry to provide retirement information and status to Rebekah. On November 5, 2013, Rebekah filed a motion for contempt alleging that Harry had failed to comply with her requests for information.
Ultimately, the trial court issued a letter opinion outlining its decision regarding Rebekah’s alimony. The court took into account Harry’s disability benefits and his lack of retirement benefits when it determined alimony.
On May 20, 2014, the trial court entered a “Military Pension Division Order.” This order directed the government to divide Harry’s military benefits. According to the March 2014 letter from the court, the division was ordered in response to Rebekah’s alimony request'. However, the order itself does not identify the payments to Rebekah as alimony. The automatic payments by the government to Rebekah did not commence.
|4On June 30, 2014, Rebekah filed a second motion for contempt. In this motion, she alleged again that Harry should be held in contempt of court for his failure to pay his court-ordered alimony. Following the filing of the motion, the trial court entered an “Amended Military Pension Division Order” on July 30, 2014. The only noticeable change from this order and the previous military pension division order is an increase in the amount Harry was delinquent with his payments. Once again, the automatic payments to Rebekah did not commence.
The trial court held a hearing on August 27, 2014, to consider all outstanding issues. An order memorializing the court’s ruling was entered on September 15, 2014. In that order, the court retroactively modified Rebekah’s alimony to $590.14 per month and awarded her a judgment for $33,685.73 in unpaid alimony plus interest. Harry was held in contempt for his failure to pay alimony as well as his failure to comply with court orders regarding discovery. Harry filed a notice of appeal of this order on October 2, 2014.
On November 5, 2014, Harry filed a motion to vacate previous orders of the court and rescind orders of contempt. The trial court denied the motion in an order file marked on December 19, 2014. That same day, Harry filed a second notice of appeal challenging the order denying the motion to vacate. Harry filed the record on appeal in this case on January 21, 2015.
II. Jurisdiction
We must begin by considering a jurisdictional issue that affects the scope of our review of this appeal. There are two notices of appeal before this court. The first notice, filed on October 2, 2014, followed the trial court’s order that gave Rebekah a judgment on | ¡¡Harry's retirement benefits, modified alimony, and held Harry in con tempt of court. The second notice of appeal was filed on December 19, 2014, and challenges only the trial court’s order denying the motion to vacate.
Harry filed his record on appeal on January 21, 2015. He did not request any extensions for filing his record. Rule 5(a) of the Arkansas Rules of Appellate Procedure-Civil (2016) requires that the record on appeal be filed with the clerk and docketed therein within ninety days from the filing of the first notice of appeal. The timely filing of a record on appeal is a jurisdictional issue for the court, and strict compliance is required. Hickson v. Ark. Dep’t of Human Servs., 357 Ark. 577, 182 S.W.3d 483 (2004). The failure to strictly comply robs the court of jurisdiction to hear the appeal. Id.
In this case, the record was lodged more than ninety days after the first notice of appeal was filed. Because of this, our court is without jurisdiction to consider the propriety of the September 2014 order. However, the record was timely filed with respect to the second notice of appeal challenging the order denying the motion to vacate. Therefore, we are left with the mere determination of whether the trial court erred in denying Harry’s motion to vacate. With this established, we now turn our attention to whether the circuit court erred by refusing to vacate its decisions regarding the contempt finding against Harry and its award of alimony to Rebekah.
III. The Motion to Vacate
Arkansas Rule of Civil Procedure 60(a) (2016) allows a court to “modify or vacate a judgment, order or decree ... within ninety days of its having been filed with the clerk.” | (After ninety days, the court’s power to vacate or modify a judgment is limited by Rule 60(c) to reasons such as fraud. Ark. R. Civ. P. 60(c)(4).
It is well established that it is within the discretion of the trial court to determine whether it has jurisdiction under Rule 60 to set aside a judgment. Grand Valley Ridge, LLC v. Metropolitan Nat’l Bank, 2012 Ark. 121, 388 S.W.3d 24. A trial court abuses its discretion when it exercises its discretion improvidently, or thoughtlessly and without. due consideration. Delgado v. Delgado, 2012 Ark. App. 100, 389 S.W.3d 52.
Harry attempts to allege fraud in his motion to vacate, stating that “information and evidence provided to this court previously was erroneous and not submitted in ‘good faith,’ and as such constitutes a fraud upon this court.” The party seeking to set aside a judgment on the basis of fraud has the burden of proving fraud by clear, cogent, and convincing evidence, or as our courts have sometimes said, by clear, strong, and satisfactory proof. Grand Valley, supra. Harry failed to offer any satisfactory evidence of fraud, and we conclude that the court could not have abused its discretion in refusing to vacate any of its orders that were more than ninety days old. Accordingly, we are left to consider only whether the trial court abused its discretion in' refusing to vacate its September 2014 judgment.
We first consider whether the trial court abused its discretion in refusing to rescind the contempt finding against Harry. Harry bases his argument for reversal on the premise that the trial court abused its discretion in holding him in contempt for failure to pay alimony. However, the trial court’s judgment provided two reasons for its contempt finding—failure to comply with discovery requests and failure to pay alimony as directed. When two alternative reasons are given for a decision and an appellant attacks only one, this court must affirm. Pearrow v. Feag in, 300 Ark. 274, 778 S.W.2d 941 (1989). Accordingly, we affirm the trial court’s contempt finding without further discussion.
Harry’s second point on appeal is that the trial court erred in awarding Rebekah alimony based on his military disability benefits. The September 2014 judgment awarded Rebekah $590.14 per month in alimony retroactive to April 2013. This award was an increase from the amount of alimony originally ordered by the trial court, and the trial court’s decision to increase Rebekah’s alimony accounted for Harry’s decrease in retirement benefits and increase in disability benefits.
The decision to grant alimony lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The purpose of alimony is to rectify the ecqnomic imbalance in the earning power and standard of living of the divorcing parties in light of the particular facts of each case. Wadley v. Wadley, 2012 Ark. App. 208, 395 S.W.3d 411. The primary factors to consider are the financial need of one spouse and the other spouse’s ability to pay. Other factors include the financial circumstances of both parties; the couple’s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party’s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage, Id.
The evidence before the trial court establishes that the parties had a nearly twenty-two year marriage. It also clearly reflected income disparity between the parties. According to their affidavits of financial means, Harry had $5,162.08 per month in income, and Rebekah had $1,190.75 per month in income. The trial court originally contemplated that, in addition to her alimony payments, Rebekah would be receiving a portion of Harry’s retirement payments. These retirement payments did not come to fruition when he was declared disabled, and the court took into account his disability benefits when it increased Harry’s alimony payments to Rebekah. Our law is clear that a court may consider disability income as a basis for determining alimony. Murphy, supra. Based on the disparity in income and the length of the parties’ marriage, we cannot say that the trial court abused its discretion in its alimony award.
Affirmed.
HOOFMAN and BROWN, JJ., agree.
. The marital home was ultimately sold at public auction on November 22, 2011. The house sold for $161,000. After the proceeds of the sale were applied to the indebtedness on the house and the costs of the sale, a süm of $6,659.81 remained.
. Under federal law, disability income is not subject to division. However, a court may consider disability benefits when awarding alimony. Murphy v. Murphy, 302 Ark. 157, 787 S.W.2d 684 (1990). | [
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Robert L. Brown, Justice.
Appellant Meadow Lake Farms, Inc., appeals from the circuit court’s judgment granting summary judgment to appellees Carl Cooper and Ben Cooper, d/b/a Cooper Farms, where the court found that Meadow Lake Farms was not a licensed contractor. Meadow Lake Farms argues on appeal that the circuit court erred in granting summary judgment to the Coopers, because Meadow Lake Farms is not a “contractor” as defined by Ark. Code Ann. § 17-25-101 (a)(1) (Repl. 2001), and the Arkansas Contractor Licensing statutes should not be construed to apply to agricultural precision land leveling. We agree with Meadow Lake Farms that summary judgment was granted in error, and we reverse and remand for further proceedings.
The facts are these. Meadow Lake Farms is a farming corporation with its principal place of business in Jackson County. The corporation owns farm land totaling 5,000 acres in Jackson and Independence Counties and is privately owned by Lewis Jones and his son, Mike Jones. The Coopers reside in Izard County and own a farm in Jackson County. The Coopers’ Jackson County farm is close to one of the farms run by Meadow Lake Farms.
Meadow Lake Farms is primarily engaged in planting, cultivating, and hand harvesting rice, soybeans, and other crops, according to the affidavit of Lewis Jones. It also provides agricultural precision land leveling, primarily for its own farm land but also for the benefit of land they rent from others. On occasion, Meadow Lake Farms will level farm land for neighboring farms when it is asked to perform that service.
In 1999, Rick Fuller, a tenant of Cooper Farms, asked Lewis Jones to level one of the Coopers’ agricultural fields. Jones and his son did so as part of the Meadow Lake Farms operation. Ben Cooper paid Meadow Lake Farms $25,590.51 for this work on February 25, 2000. Later in 2000, Fuller again approached Lewis Jones about leveling another one of the Coopers’ agricultural fields. After Meadow Lake Farms did so, Ben Cooper paid Meadow Lake Farms $27,865.50 for this work on August 3, 2000. In October 2000, Fuller came to Jones again about leveling a third agricultural field belonging to the Coopers. After performing this job, on November 16, 2000, Meadow Lake Farms sent the Coopers an invoice for these services and for an ARKLA bill, all of which totaled $23,649.89. The Coopers did not pay this invoice.
Meadow Lake Farms sued the Coopers for payment of its invoice. The Coopers filed their answer and asserted that Meadow Lake Farms could not collect, because it was not a licensed contractor. The Coopers then moved for summary judgment and claimed that Meadow Lake Farms was a contractor under Ark. Code Ann. § 17-25-101 (a) (1) and was operating without a contractor’s license, as required by Ark. Code Ann. § 17-25-103 (Repl. 2001). Flence, they asserted that Meadow Lake Farms was precluded from bringing this action. A hearing was held on the motion, after which the court entered summary judgment in favor of the Coopers.
Meadow Lake Farms contends on appeal that the circuit court’s judgment should be reversed, because the circuit court erred in finding that Meadow Lake Farms was a “contractor” that needed a contractor’s license to provide agricultural precision land leveling services. It claims that it is not a “contractor” under a strict reading of Ark. Code Ann. § 17-25-101(a)(l), because the Coopers’ land is not “for lease, rent, resale, public access or similar purpose,” as required by the statute. It further maintains that like the landscaper in Wilcox v. Safley, 298 Ark. 159, 766 S.W.2d 12 (1989), it merely made the Coopers’ farm land usable for farming. Moreover, according to Meadow Lake Farms, the General Assembly intends to distinguish services to agricultural lands from general commercial construction, because it once did so in Ark. Code Ann. § 17-25-106 (Repl. 2001) (construction for grain bins exempt from contractor’s license requirement), even though this statute was repealed by Act 1346, § 1 of2003. Finally, it urges that the circuit court erred in not giving due deference to the affidavit of Gregory L. Crow, attorney for the Arkansas Contractor Licens ing Board, who averred that § 17-25-101 had never been applied to agricultural land leveling by the Board. Meadow Lake Farms also notes that other states have exempted farms from contractor licensing provisions.
We turn first to a discussion of our standard of review. Summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Ark. R. Civ. P. 56(c). See also Swaim v. Stephens Production Co., 359 Ark. 190, 196 S.W.3d 5 (2004). 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. See Swaim v. Stephens Production Co., supra. On appellate review, this court determines if summary-judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
We review issues of statutory interpretation de novo, because it is for this court to decide what a statute means. See, e.g., Swaim v. Stephens Production Co., supra; Cooper Realty Investments, Inc. v. Arkansas Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003). While we are not bound by the circuit court’s ruling, we will accept that court’s interpretation of a statute unless it is shown that the court erred. See id. When dealing with a penal statute, this court strictly construes the statute in favor of the party sought to be penalized. See Cooper Realty Investments, Inc. v. Arkansas Contractors Licensing Board, supra; Ports Petroleum Co., Inc. of Ohio v. Tucker, 323 Ark. 680, 916 S.W.2d 749 (1996).
The statute at issue defines a “contractor” as:
... any... corporation,... who, for a fixed price,... contracts or undertakes to construct,... or manages the ... alteration,... or has ... altered,... under ... its direction, any ... grading, or any other improvement or structure on public or private property for lease, rent, resale, public access, or similar purpose,... when the cost of the work to be done, or done, in the State of Arkansas by the contractor, ... is twenty thousand dollars ($20,000) or more.
Ark. Code Ann. § 17-25-101(a)(l) (Repl. 2001). Under Arkansas law, any “contractor” violating the licensure law shall be guilty of a misdemeanor and shall be liable for a fine of not less than $100 nor more than $200 for each offense, with each day to constitute a separate offense. See Ark. Code Ann. § 17-25-103(a)(l) (Repl. 2001). Arkansas law further provides that no action may be brought, either at law or equity, to enforce any provision of a contract entered into in violation of this chapter. See Ark. Code Ann. § 17-25-103(d) (Repl. 2001). No action, moreover, may be brought either at law or equity for quantum meruit by any contractor in violation of this chapter. See id.
The Rules and Regulations of the Contractors Licensing and Bond Law provide that a contractor may be licensed in the following categories: heavy construction; highway, railroad, and airport construction; municipal and utility construction; building; light building; mechanical; electrical; and a specialty category. See Rules and Regulations 224-25-5(a). There are specialty classifications within each category. For example, within the heavy construction category, there exist a “dams, dikes, levees, and canals” specialty classification; within the building category, there exist “erosion control,” “grading and drainage,” and “landscaping, irrigation, streams” specialty classifications; and within the specialty category, there exists “dams, dikes, levees, canals,” “erosion control,” “grading and drainage,” and “landscaping, irrigation, streams” specialty classifications. See Rules and Regulations, Outline of Classifications (1), (4), & (8).
The Coopers initially advance the argument that the issue of whether the improvement must be done “on public or private property for lease, rent, resale, public access, or similar purpose,” as the definition for “contractor” under § 17-25-101 (a)(1) requires, is not preserved because that specific assertion was not made to the circuit court. We disagree.
The question of whether Meadow Lake Farms was a “contractor” under § 17-25-101 (a)(1) based on its field leveling work was the sole issue before the circuit court. Meadow Lake Farms contended it was not a contractor. The circuit court quoted the full statute in its order and obviously considered the statute in toto. The court said in its order:
A.C.A. Section 17-25-101(a)(l) provides, in part:
“As used in this chapter, unless the context otherwise requires, “contractor” means any . . . corporation . . . who, for a fixed price . . . attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, or manages the construction, erection, alteration, or repair, or has or have constructed, erected, altered or repaired, under his or her, their, or its direction, any building, apartment, condominium, highway, sewer, utility, grading, or any other improvement or structure on public or private property for a lease, rent, resale, public access, or similar purpose, except single family residences, when the cost to be done, or done in the state of Arkansas by the contractor, including, but not limited to, labor and materials is Twenty Thousand Dollars ($20,000,000) or more.” (Emphasis added).
It is now this court’s task to interpret the meaning of the statute on de novo review. For us not to consider the entire statute would unduly hamper our interpretation and skew the results. This we will not do. As an additional point, this court has in the past adduced statutory authority that is apposite to the point raised on appeal, even when the precise subsection of the statute was not cited by the appellant. See Littles v. Flemings, 333 Ark. 476, 970 S.W.2d 259 (1998).
The circuit court, in its summary judgment, focused on the “grading” language in § 17-25-101 (a)(1) and the Rules and Regulations of the Contractors Licensing and Bond Law but failed to consider where the grading was to take place. That of course, is the essence of this litigation. Meadow Lake Farms maintains that a “contractor” under § 17-25-101(a)(l) must be involved in some construction enterprise regarding structures and not simply engaged in field leveling for crops, where no structure is contemplated. That argument necessarily brings into play what work is being performed but also where the service is being provided, that is, on what property. To be a contractor, the work must pertain to property “for lease, rent, resale, public access, or similar purpose.”
Meadow Lake Farms likens its situation to the fact situation in Wilcox v. Safley, supra. In Wilcox, a construction company was awarded a contract as the prime contractor to construct a sewer system in Faulkner County. The prime contractor orally agreed with a landscaper to pay him $2.32 per square yard of sod, if he provided bermuda sod and placed it on areas disturbed in the construction of the sewer system. When the prime contractor refused to pay the landscaper the balance due, the landscaper filed suit. The circuit court found that the landscaper providing the sod was a contractor who was not licensed and that that precluded him from maintaining an action to recover the balance due.
On appeal, this court reversed. We held that the language of Ark. Code Ann. § 17-22-101(a) (Supp. 1987), which is now codified at § 17-25-101(a)(l) (Repl. 2001), is not clear and unambiguous and is reasonably open to different interpretations, particularly when examining the actions of the landscaper. Id. This court then strictly construed § 17-22-101 (Supp. 1987) and § 17-22-103 (Supp. 1987), which is now codified at § 17-25-103 (Repl. 2001), in favor of the landscaper and found that he was not a contractor for purposes of§ 17-22-101 (a). Thus, he was entitled to maintain an action to recover his losses. Id. We said:
Code provisions imposing penalties for noncompliance with licensing requirements, such as §§ 17-22-101 and 17-22-103, must be strictly construed. Accordingly, if the language of such provisions is not clear and positive, or if it is reasonably open to different interpretations, every doubt as to construction must be resolved in favor of the one against whom the enactment is sought to be applied. Where a provision is clear and unambiguous, the intention of the legislature must be determined from the plain meaning of the language of the provision.
The language of § 17-22-101 (a) is not clear and unambiguous. Under § 17-22-101 (a), a contractor is a person who attempts to or submits a bid to construct, contracts or undertakes to construct, or manages the construction, erection, alteration, or repair of a building, apartment, condominium, highway, sewer, utility, grading, or any other improvement. In narrowly construing this language, we conclude that it is reasonably open to different interpretations, particularly when we examine the actions of [the landscaper] in sodding, sprigging, and seeding the land in question. These activities do not fall within the definition of construction, erection, alteration, or repair.
Wilcox v. Safley, 298 Ark. at 161-62, 766 S.W.2d at 13 (internal citations omitted).
We agree with Meadow Lake Farms that the facts of the case at hand are analogous to those found in Wilcox v. Safley, supra. Clearly, this court held in that case that the predecessor statute to § 17-25-101(a)(l) (Repl. 2001), was open to reasonably different interpretations. Similarly, reasonably different interpretations were advanced at the trial level in this case. The circuit court found that Meadow Lake Farms’s activities were “grading,” and, thus, fell within the purview of the statute, whereas Meadow Lake Farms claimed that its activities were not “grading” in the sense of grading for “construction” but rather were for the purpose of leveling farm lands for crop production. As we said in Wilcox v. Safley, supra, if the language is not clear and positive or is reasonably open to different interpretations, every doubt as to statutory construction must be resolved in favor of the one against whom the enactment is sought to be applied. In this case, that party is Meadow Lake Farms.
We are mindful of the standard of review for summary judgment, but also for when a penal statute is involved. In this case, we must strictly construe the penal statute in favor of Meadow Lake Farms. See Cooper Realty Investments, Inc. v. Arkansas Contractors Licensing Bd., supra. This court determined in Wilcox v. Safley, supra, that the language of § 17-25-101 (a)(1) was not clear and unambiguous. We conclude that there exists a genuine factual issue surrounding whether Meadow Lake Farms provided grading services on property “for lease, rent, resale, public access, or similar purpose.” We reverse the summary judgment and remand for a decision on that issue.
Reversed and remanded.
Thornton, J., not participating. | [
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BRANDON J. HARRISON, Judge-
I,Megan Ballard appeals the 'default judgment entered in favor of Ally Financial, Inc. Ally has filed a motion to dismiss the appeal, arguing that Ballard has not appealed from a final, appealable order. We grant the motion and dismiss Ballard’s appeal.
On 26 June 2014, Ally filed a replevin complaint against Christine and James Lemons, alleging that the Lemonses bought a 2011 Dodge Challenger in July 2011, that Ally held the sales contract, and that the Lemonses had defaulted on their payments. Christine and James Lemons were served with the cojnplaint in, August 2014, but neither party responded. The same month the Lemonses were served, Ballard, who was not a named party, filed a statement with the circuit court indicating that the Dodge Challenger had been left at her facility for repairs, that the bill had not béen paid, and that she had procured an abandoned title and sold the car.
| gin December 2014, Ally amended its complaint to include Ballard as a named defendant, and' Ballard was served in January 2015. Ballard failed to answer, and in August 2015, Ally filed a motion for default judgment against Ballard. In October 2015,- the circuit court entered an order of default judgment against Ballard for conversion. Ballard filed a notice of appeal from this order in November 2015. In December 2015, about one month after the only notice of appeal had been filed, the circuit court entered a separate order dismissing the Lemonses without prejudice. Ballard did not amend her prior notice of appeal, or file a new notice, after the December 2015 order dismissing the Lemons-es had been entered. Instead, she initiated her appeal with this court by filing the circuit-court record with this court’s clerk in early February 2016.
Not long after the record on appeal had been filed, Ally moved to dismiss this appeal, arguing that this court lacks jurisdiction because Ballard’s only notice of appeal designated a nonfinal order '(the default judgment) and she did not amend her notice of appeal after the order dismissing the Lemonses had been filed. Ballard resists Ally’s motion by arguing, among other things, that Ally was precluded from pursuing any remaining claims against the Lemonses because a stay was issued in the Lemonses’ separate bankruptcy proceeding; that the conversion claim, the “meritorious issue on appeal,” had been fully litigated and was ripe for review; and that the Lemonses’ dismissal was merely a “housekeeping matter” that did not affect finality. In the alternative, Ballard asks that her appeal be dismissed without prejudice, if it is going to be dismissed.
We must dismiss this appeal because the default judgment, which Ballard sought to appeal, was not a final order because Ally’s claims against the Lemonses had not been [ sadjudicated or dismissed when the default judgment was entered. Vimy Ridge Mun. Water Improvement Dist. No. 139 v. Ryles, 369 Ark. 217, 253 S.W.3d 436 (2007) (holding that an order is not a final, ap-pealable order when it does not dispose of the complaints against all of the defendants). Given the course of events, we dismiss the appeal with, rather than without, prejudice. When the Lemonses were dismissed from the case, at Ally’s request, a final, appealable order was created under the case law. Once the final order (the Lemonses’ dismissal) was entered, then a timely notice of appeal was required to vest this court with appellate jurisdiction. But Ballard did not file a notice of appeal after the final order had been entered. And it is too late to do so now.
Caselaw supports our position. In Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996), our supreme court established that voluntarily dismissing an opposing party can create finality. Applying Driggers to this case, once the Lemonses as party defendants were dismissed (even voluntarily and without prejudice), all parties and the claims against them were adjudicated, which made, as we have said, the Lemons-es’ dismissal the final order from which a notice of appeal was required. In another case, Winkler v. Bethel, 362 Ark. 614, 210 S.W.3d 117 (2005), our supreme court applied Driggers and dismissed an appeal from a summary-judgment order because a timely notice of appeal had not been filed after the entry of the subsequent nonsuit order—the latter order being the one that created finality and therefore triggered the need to file a timely notice of appeal from it. So the court in Winkler held that because the nonsuit order created finality, and a timely notice of appeal did not follow the nonsuit order, the court lacked jurisdiction to review the earlier Lsummary-judgment order that was the true target of the intended appeal. This case is, in principle, indistinguishable from Winkler on the appellate-jurisdictional point.
The two cases Ballard cited to support a dismissal without prejudice, National Home Centers, Inc. v. Coleman, 370 Ark. 119, 257 S.W.3d 862 (2007), and Labry v. Metropolitan National Bank, 2012 Ark. App. 189, are distinguishable because they were appeals from nonfinal orders, and a final, appealable order had never been entered in those cases. To dismiss Ballard’s appeal without prejudice would run afoul of supreme court precedent. It would also imply that some action could be taken in the circuit court to create finality, but finality was created in this case when the circuit court entered the December 2015 order that dismissed the Lemonses.
The appeal is dismissed with prejudice.
Dismissed.
Virden and Brown, JJ., agree. | [
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Per Curiam.
This case is an appeal from an order entered by the Sebastian County Circuit Court, Fort Smith District, Juvenile Division, on December 18, 2003, terminating the parental rights of Appellant Sherry Childers. Counsel appointed by the circuit court to represent Ms. Childers filed a timely notice of appeal on January 15,2004, and an order extending the time to file the record until June 4, 2004, was entered by the circuit court. See Ark. R. App. P.—Civ. 5(b). The time granted under the extension order passed, and the record was not timely filed with our clerk. See Ark. R. App. P.—Civ. 5(a) (2004). Eventually, on January 7, 2005, the Department of Human Services (DHS) filed a partial record along with its motion to dismiss the instant appeal. Ark. R. App. P.—Civ. 5(c) (2004). The partial record does not contain an affidavit of indigency, but the notice of appeal filed by appointed counsel states that Ms. Childers “has been found to be indigent and the undersigned lawyer . . . was appointed to represent her.”
If this were a criminal case and appointed counsel failed to timely tender the record to this court as required by Ark. R. App. P.—Civ. 5 (2004), Ms. Childers could have petitioned this court pro se for a rule on clerk to enable her to file the record and thereby perfect her appeal. Atkins v. State, 308 Ark. 675, 827 S. W.2d 636 (1992). No such remedy, however, exists for appellants in civil cases. Bogachoff v. Arkansas Dept. of Human Services, 360 Ark. 259, 200 S.W.3d 884 (2005). Thus, Ms. Childers should not be penalized for her failure to file a motion for rule on clerk.
Under our recent decision in Linker-Flores v. Ark. Dept. of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004) (Linker-Flores v. Ark. Dept. of Human Services II), indigent parents have a right to an appeal from a judgment terminating parental rights. We have also held that indigent parents are entitled to court-appointed counsel on appeal. Linker-Flores v. Arkansas Dept. of Human Services, 356 Ark. 369, 149 S.W.3d 884 (2004) (Linker-Flores v. Ark. Dept. of Human Services I). Thus, Ms. Childers’s appointed attorney is obligated to proceed with her appeal in accordance with the procedures recently adopted by this court for appeals involving indigent parents in termination cases. See Linker-Flores v. Ark. Dept. of Human Services II, supra; Bogachoff v. Arkansas Dept. of Human Services, supra. More specifically, Ms. Childers’s right to appeal from the termination of her parental rights cannot be conditioned on her ability to pay for the preparation of a record. M.L.B. v. S.L.J., 519 U.S. 102 (1996). If Ms. Childers’s is unable to afford the preparation of a transcript, she may proceed informa pauperis, and the transcript shall be furnished at the State’s expense. Bogachoff v. Arkansas Dept. of Human Services, supra; Petition of Hutton, 301 Ark. 538, 785 S.W.2d 33 (1990). Furthermore, if appointed counsel, after a conscientious review of the record, believes the appeal is frivolous, counsel should file a no-merit brief with this court along with a petition to withdraw as counsel. Linker-Flores v. Ark. Dept. of Human Services II, supra.
Because the Linker-Flores and Bogachoff cases were decided well after Ms. Childers’s extended time for filing the record had expired, we will not penalize her or her attorney for failing to comply with the court’s directives set forth in those decisions. Instead, we now direct Ms. Childers’s appointed attorney to proceed with the appeal in a manner consistent with the procedures adopted by this court in the Linker-Flores and Bogachoff cases. If Ms. Childers has chosen to waive her right to an appeal, she should file an affidavit of waiver with this court.
Motion to dismiss denied. | [
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Per Curiam.
Appellant, Keela McGahey, filed a motion for rule on the clerk, which we granted in McGahey v. State, 359 Ark. 252, 195 S.W.3d 922 (2004). In McGahey, we stated that “the motion and accompanying record fail[ed] to reveal plainly whether there was an attorney’s error,” on the part of appellant’s former counsel, Mr. Jimmy Doyle. We remanded the matter of attorney error to the circuit court to make findings of fact. Id.
On November 19, 2004, an order from the Desha County Circuit Court containing those findings was filed with our court. At the hearing, evidence was presented that is consistent with McGahey, supra, where we stated:
On May 15,2003, the court reporter forwarded a letter to Mr. Doyle, outlining the parties’ conversation regarding payment of the record. On June 20, 2003, the court reporter again forwarded a letter to Mr. Doyle, notifying him that the time for filing the record had passed. The court reporter also noted the possibility of appellant being declared indigent.
Mr. Doyle sent a letter dated February 9, 2004, to appellant, requesting that she sign an affidavit to receive the record as a pauper. Appellant signed and returned the affidavit to Mr. Doyle on February 18,2004.
Id.
The trial court further ruled that there was no motion or order in the file that indicates that Mr. Doyle requested or was relieved as attorney of record for appellant.
We hereby relieve Mr. Doyle as attorney of record sua sponte and order Mr. Doyle to appear before this court at 9:00 a.m., on Thursday, January 13, 2005, to show cause as to why he should not be held in contempt for his conduct in representing appellant in failing to secure the record for appellant’s appeal.
We note that in McGahey, supra, we granted appellant’s motion to substitute counsel. Mr. Hubert W. Alexander is the attorney of record in appellant’s case.
It is so ordered. | [
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RAYMOND R. ABRAMSON, Judge
h Wanda Little appeals from the October 12, 2015 Sebastian County Circuit Court order granting guardianship of her daughter K.L. to Troy and Jennifer (Jen ny) Anderson. On appeal, Little argues that substantial evidence does not support the circuit court’s findings, and that its decision is clearly erroneous and is not in the best interest of the child, K.L. For the following reasons, we affirm.
It is undisputed that K.L. has endured a tremendous amount in her short life. On April 21, 2010, less than a week before K.L. turned six years old, she was removed from her |2mother’s care and placed in foster care due to Little’s drug use and educational neglect. On December 19, 2011, K.L. was placed in the custody of her paternal grandparents, Doug and Belinda Little. In the same order, the court awarded Wanda Little visitation to be supervised by the custodial grandparents or by Jenny Anderson. From December 2011 through August 7, 2014, K.L. remained in the permanent custody of her paternal grandparents until Arkansas Department of Human Services (DHS) filed a petition for emergency custody based on allegations of sexual abuse by Doug Little. An ex parte order for emergency custody with DHS was entered that day.
On December 2, 2014, Troy and Jenny Anderson, as the relative foster parents of K.L., petitioned the court for her “permanent guardianship.” Wanda Little answered on December 12, 2014 and contested that the petition should be denied. On December 31, '2014, the court suspended Wanda Little’s visitation, and a review hearing was held on March 10, 2015. Following the hearing, the' previous temporary order suspending visitation was extended-, and reunification with the mother was the stated goal. KL. remained in the custody of the Andersons. On July 14, 2015, a permanency-planning hearing was held, and Wanda Little’s .visitation with K.L.. continued to be suspended; K.L. remained in the custody of the Andersons. On October 2, 2015, a hearing on the petition for permanent | ¡¡guardianship was conducted, and the court granted the permanent guardianship • in an order filed on October 12, 2015. This timely appeal follows.
In juvenile proceedings, the standard of review on appeal is de novo, although we do not reverse unless the trial court’s findings are clearly erroneous. Ingle v. Ark. Dep’t of Human Servs., 2014 Ark. 471, 449 S.W.3d 283. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. This court gives due deference to the superior position of the trial court to view and judge the credibility of the witnesses. Mosher v. Ark. Dep’t of Human Servs., 2015 Ark. App. 111, 455 S.W.3d 367. This deference to the trial court is even greater in eases involving children, as a heavier burden is placed on the trial judge to utilize to the fullest extent his or her powers of perception in evaluating the witnesses, their testimony, and the best interest of the children. Callison v. Ark. Dep’t of Human Servs., 2014 Ark. App. 592, 446 S.W.3d 210. Our appellate courts have made clear that there is no other type of case where the superior position, ability, and opportunity of the trial judge to. observe the parties carries a greater weight than one involving the custody of a child. Id.
In the instant case, K.L. falls under the definition of an incapacitated person because she is under the age of ’majority. Ark. Code Ann. § 28-65-104(1) (Repl. 2012). The purpose of a guardianship over an incapacitated person is set forth in Arkansas Code Annotated section 28-65-105. Guardianship is to be used “only as is necessary to promote and protect the well-being of the person and his or her property.” Ark. Code Ann. § 28-65-105(1). Arkansas Code Annotated section 28-65-210 provides what must be proved to the trial Ucourt in order to appoint a guardian: (1) the person is a minor or is otherwise incapacitated, (2) a guardianship is desirable to protect the interests of the incapacitated person, and (3) the person to be appointed guardian is qualified and suitable to act as such.
There is a statutory preference to be given to the parent, “if qualified and, in the opinion of the court, suitable” to be appointed guardian, as set out in Arkansas Code Annotated section 28-65-204(a). This natural-parent preference does not automatically attach to a child’s natural parents; it is within the circuit court’s discretion to make a determination as to whether a parent is “qualified” and “suitable” under section 28-65-204(a). Fletcher v. Scorza, 2010 Ark. 64, 359 S.W.3d 413.
Moreover, when the incapacitated person is a minor, the key factor in determining guardianship is the best interest of the child. A determination of parental fitness is not necessary in guardianship proceedings as between a natural parent and a third party; the best interest of the child is paramount. Id. To the extent that any prior cases suggested a standard of fitness or unfitness in guardianship proceedings involving the statutory natural-parent preference, those cases were overruled in Fletcher. The natural-parent preference is but one factor that the circuit court must consider in determining who will be the most suitable guardian for the child. Id. Any inclination to appoint a parent or relative must be subservient to the principle that the child’s best interest is of paramount consideration. Id,
With these statutes and standards in mind, we now turn to the evidence before the court and consider Little’s arguments challenging the trial court’s decision. Throughout the course of this case, dating back to the time K.L. was initially removed from the custody of Little in 2010, Little failed to achieve reunification with K.L. She took little action to ^establish or reestablish her fitness to parent K.L. After Doug Little’s sexual abuse of K.L. over a two-year period was discovered, the circuit court found K.L. dependent-neglected for a second time. K.L. was ordered to remain in DHS’s custody, and reunification with Wanda was made the case goal. While visits occurred between K.L. and Wanda, they were characterized by conflict, anger, animosity and resentment. KL.’s therapist testified that the visits and confrontation with Wanda created anxiety and stress for K.L.
The uncontroverted testimony of Jenny and Troy Anderson at trial shows that they had been active in K.L. s life since birth—attending family functions and babysitting her for days at a time. When K.L. began school, Wanda Little listed Jenny Anderson as one of the persons authorized to pick up K.L. from school. After K.L. was placed in DHS’s custody the first time, the Andersons continued to have holiday and weekend visits with her. Their visits continued even after K.L. was placed in Doug and Belinda Little’s custody. After K.L. was removed from her grandparents’ custody, she was placed with the Andersons as a temporary foster placement, and then the Andersons were granted temporary custody by the court.
The evidence before the circuit court showed a long-standing, positive relationship between KL. and the Andersons. The Andersons have spent quality time with K.L. for years, and testimony indicated that a strong bond existed between them. The circuit court’s best-interest finding is not clearly erroneous. The three statutory requirements for guardianship as set forth in Arkansas Code Annotated section 28-65-210 have also been met |Bin this case.
As noted above, we give great deference to the circuit court in cases that involve child custody. Callison, supra. Having reviewed the evidence in this case, the circuit court specifically focused on what it considered to be the best interest of K.L., and we affirm the circuit court’s finding that it was in her best interest for the Andersons to be appointed guardians. We hold that the trial court applied Arkansas case law and statutes correctly in this instance, and we affirm its decision as not clearly erroneous.
Affirmed.
Virden and Gruber, JJ., agree.
. Jenny Anderson is a maternal second cousin of K.L.
. This court reviews guardianship proceedings de noyo on the record, but we will not reverse the decision of the circuit court unless it is clearly erroneous. Witham v. Beck, 2013 Ark. App. 351, 428 S.W.3d 537. Therefore, substantial evidence is not the correct standard of review here.
. Testimony presented showed that K.L. and Little had both been held at gunpoint by one of Little’s boyfriends, who subsequently shot and killed himself in the home. K.L. was often absent from school, and when she did attend, she came to school hungry and unclean.
. K.L.’s biological father, Kirkland Little, is deceased.
. We note that there is no statutory provision for "permanent guardianship,” but it is clear that the lower court treated it as a petition for guardianship.
. The parties stipulated that K.L. had been subjected to sexual abuse and was thus dependent-neglected. Further, Wanda testified that her late husband, K.L.’s father, Kirkland Little, had told her that his parents had attempted to sexually abuse him as a teen. | [
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BRANDON J. HARRISON, Judge
hThe Arkansas Highway and Transportation Department (AHTD) appeals the opinion of the Arkansas Workers’ Compensation Commission (Commission) that affirmed and adopted the opinion of the administrative law judge (ALJ) in awarding Brenda Wiggins 40% wage-loss disability and requiring AHTD to pay all reasonable hospital and medical expenses arising out of Wiggins’s compensable injury. We affirm.
Wiggins sustained ah admittedly com-pensable injury on 7 December 2013 when the dump truck she was driving was struck from behind by an eighteen-wheel tractor trailer. Her injuries from the accident included a nasal fracture and two transverse process | ^fractures in her lumbar spine. The accident also exacerbated a preexisting condition in her cervical spine, resulting in four bulging discs. In August 2014, Dr. Barry Baskin opined that Wiggins had reached maximum medical improvement and assessed a 7% impairment rating based on the cervical spine and 10% impairment rating based on the lumbar spine, totaling a 17% whole-person impairment rating. AHTD accepted this anatomical impairment rating and the corresponding permanent partial-disability benefits; however, it denied that Wiggins was entitled to wage-loss disability benefits. Wiggins contended that she was entitled to both wage-loss benefits and attorney’s fees.
The ALJ held a hearing in February 2015 and issued a lengthy opinion in May 2015. After an exhaustive review of Wiggins’s testimony, her daughter’s testimony, and the medical evidence, the ALJ found as follows:
The claimant’s residual physical limitations and restrictions were such that respondent-employer was unable to accommodate her. The claimant is adversely affected by the medicines that she takes in the treatment bf her-com-pensable injury. Additionally, the claimant’s residual physical limitations and restrictions adversely affects her ability to operate a motor vehicle, to perform small engine repairs, and the duration of time she is able to sit in a classroom setting,'
The claimant has sustained her burden of proof by a preponderance of the credible evidence, that when' her age, education, work experience, and other matters reasonably expected to affect her future ear[n]ing capacity are considered in addition to the percentage of permanent physical impairment, she has sustained a loss of earning capacity or wage loss disability of 40% over and above her anatomical impairment.
The ALJ ordered AHTD to pay Wiggins permanent partial-disability benefits at the weekly...compensation benefit rate bf $289 to correspond with the 40% wage-loss disability, over and above the 17% anatomical impairment resulting from the 7 December |32013 compensable injury. The ALJ also ordered AHTD to pay all reasonably necessary medical expenses arising out of Wiggins’s compensable injury.
AHTD appealed to the full Commission, arguing that the wage-loss disabil ity award was excessive and contrary to the evidence and that “the ALJ’s finding that the respondent shall pay all reasonable hospital and medical expenses arising out of the claimant’s injuries of December 7, 2013 should not be affirmed on appeal because that was not an issue in dispute and was not litigated.” In December 2015, the Commission, in a 2-1 majority opinion, affirmed and adopted the ALJ’s opinion as its own. AHTD has now timely appealed to this court.
We review the Commission’s decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Parker v. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007). It is the Commission’s duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 (2008).
I. Wage-Loss Disability
The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability' to earn a livelihood. Wal-Mart Assoc., Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683. When a claimant has an impairment rating to the body as a whole, the- Commission has the authority to increase the disability rating based on wage-loss factors. Id. The Commission is charged with the duty of determining disability based on consideration of medical evidence and other factors affecting wage loss, such as the claimant’s age, education, work experience, motivation, postinjury income, demeanor, and credibility. Miller v. White Hall Sch. Dist., 2010 Ark. App. 460.
On appeal, AHTD first cites five other opinions from this court that affirmed an award of wage-loss disability benefits, or the denial of such benefits, and then explains how Wiggins is like or unlike the claimants in those cases. AHTD also reiterates Wiggins’s testimony at length and argues that it is inconsistent and exaggerated as to her symptoms. Wiggins responds that the ALJ “considered each of the previously stated facts in detail,” “spent more than 26 pages discussing the extent and effect of the vocational limitations experienced by [Wiggins],” and correctly concluded that she experienced a wage-loss disability of 40% beyond her impairment rating.
We affirm the Commission. As noted above, it is the Commission’s duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence, see Martin Charcoal, Inc., supra, and we will not second-guess that determination. Considering the fact-intensive nature of this inquiry, in which all the specific facts of this claimant’s age, abilities, education, physical and mental limitations, | .^motivation, and demeanor and any other factor deemed relevant are to be considered, see Miller, su- pm, and viewing the evidence in the light most favorable to the Commission’s decision as we must, we hold that reasonable minds could conclude that Wiggins was entitled to 40% wage-loss disability in excess of her permanent partial impairment.
II. Medical Treatment
On this point, AHTD argues that the Commission’s award of medical treatment is not supported by substantial evidence because medical treatment was not at issue at the hearing before the ALJ. AHTD also argues that the Commission failed to make specific findings on this issue, so this court should reverse and remand for such findings.
Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) provides that an employer “shall promptly provide such medical, surgical, hospital, chiropractic, opto-metric, podiatric, and nursing services and medicine ... as may be reasonably necessary in connection with the injury received by the employee.” AHTD is correct that Wiggins’s entitlement to medical treatment was not at issue because AHTD had already accepted the compensability of Wiggins’s injury and was therefore already responsible for Wiggins’s medical treatment arising from the compensable injury. The Commission’s finding that AHTD “shall pay all reasonable hospital and medical expenses arising out of the claimant’s injuries of December 7, 2013” was simply a restatement of a responsibility that AHTD had already accepted; therefore, we hold that there is no basis for reversal and no need for additional findings on the issue.
Affirmed.
Glover and Vaught, JJ., agree.
. Under Arkansas law, the Commission is permitted to adopt the ALJ’s opinion. SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ’s findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ’s opinion and the Commission’s majority opinion. Id. | [
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Jim Gunter, Justice.
Appellant, K.N., appeals the order of the Washington County Circuit Court, Juvenile Division, revoking her probation. For reversal, K.N. makes three allegations of error concerning the admissibility of evidence and the imposition of sanctions. We affirm the trial court’s revocation order.
On May 25, 2004, K.N. entered a plea of guilty to possession of an instrument of crime, a violation of Ark. Code Ann. § 5-73-102 (Repl. 1997), a class A misdemeanor, and possession of a controlled substance, a violation of Ark. Code Ann. § 5-64-401 (Supp. 2003), a class A misdemeanor. On June 1, 2004, the Washington County Circuit Court adjudicated her delinquent, placed her on probation, and sentenced her to a twenty-day suspended sentence in the Juvenile Detention Center. The terms of K.N.’s probation included that she refrain from using illegal substances, that she submit to random drug tests, and that she meet with her probation officer.
On June 30, 2004, K.N. met with her juvenile probation officer, Renee McCown. During that meeting, K.N. was given a drug test. The results of the drug test were positive for the adulterant, Quick 45, which is intended to clean out the system for purposes of passing a drug test. When Ms. McCown questioned K.N. about the drug test, K.N. admitted to using Quick 45 and to smoking marijuana while on probation.
The State filed a petition to revoke probation on the basis that K.N. admitted to using an adulterant to pass the drug test and to marijuana use. After arraignment, the trial court ordered K.N. to be held in detention pending an adjudication hearing.
On July 12, 2004, an adjudication hearing was held to consider the petition to revoke probation. During the hearing, Ms. McCown testified about K.N.’s statements concerning her drug test over K.N.’s objection. The trial court found by a preponderance of the evidence that K.N. violated the conditions of her probation. The trial court ordered her to spend twenty days in detention with fourteen days suspended, placed her on probation with certain conditions, and ordered that K.N. receive inpatient treatment for drug use. K.N. brings this appeal from the order of disposition.
We note that the Arkansas Juvenile Code and its provisions apply to proceedings in the juvenile court. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998). Specifically, Ark. Code Ann. § 9-27-339 governs issues of probation revocation in juvenile court. Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (2002). A revocation hearing is held once the State files a petition seeking to revoke a juvenile’s probation. See Ark. Code Ann. § 9-27-339(d). In juvenile-revocation cases, the trial court must find by a preponderance of the evidence that the juvenile violated the terms and conditions of probation. Ark. Code Ann. § 9-27-339(e). We have consistently held that a trial court’s ruling in matters relating to the admission of evidence will not be reversed absent an abuse of discretion. M.M. v. State, 350 Ark. 328, 88 S.W.3d 406 (2002). With this standard of review in mind, we turn to the present case.
For her first point on appeal, K.N. argues that the trial court erred in admitting her statements to her probation officer, Ms. McCown, before her revocation hearing. K.N. contends that Ark. Code Ann. § 9-27-321 (Supp. 2003) prohibits the admissibility of her statements to her juvenile probation officer because those statements were made during an “intake process.” Id. The State responds, arguing that K.N.’s statements were made during a meeting with her probation officer after she had been adjudicated delinquent in accordance with her own guilty plea.
This issue requires our interpretation of Ark. Code Ann. § 9-27-321. We recently articulated our rules regarding statutory construction in Weiss v. American Honda Finance Corp., 360 Ark. 208, 200 S.W.3d 381 (2004):
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accom plished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ultimate rule of statutory construction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
Weiss, supra.
With these principles in mind, we turn to Ark. Code Ann. § 9-27-321, which provides:
Statements made by a juvenile to the intake officer or probation officer during the intake process before a hearing on the merits of the petition filed against the juvenile shall not be used or be admissible against the juvenile at any stage of any proceedings in circuit court or in any other court.
Id.
In Manatt v. State, 311 Ark. 17, 842 S.W.2d 845 (1992), we considered the issue at bar. However, in Manatí, we concluded that the juvenile’s incriminating statements at issue were made to a police officer and not to an intake officer. Thus, Ark. Code Ann. § 9-27-321 was inapplicable to the circumstances in that case. Further, we note that the facts in Manatt did not involve issues of probation revocation.
Guided by our statutory-construction rules, we now examine the plain meaning of the statute. Weiss, supra. The definition section of the Juvenile Code, found at Ark. Code Ann. § 9-27-303 (Supp. 2003), does not contain a definition of “intake process.” Here, we contemplate the phrase, “intake process,” to include questioning a juvenile by an intake officer or by a probation officer before a hearing on the merits of a petition filed before the juvenile is adjudicated delinquent. Thus, we interpret Ark. Code Ann. § 9-27-321 to apply to pre-adjudication situations rather than pre-revocation scenarios.
Appellant argues that K.N.’s statements were made during a new intake process before a hearing on the merits of her revocation petition. Id. However, K.N.’s argument is misplaced. At trial, K.N.’s probation officer, Ms. McCown, testified that she met with K.N. on June 9, 2004, to review the terms of her probation, which included a random drug screen. On June 30, 2004, K.N. submitted to a random drug test. Ms. McCown testified that K.N.’s urine was a “funny color,” so it was tested for an adulterant, and the results were positive. Ms. McCown further testified that K.N. admitted to having smoked marijuana and to having taken the adulterant. Over K.N.’s objection, the trial court admitted the evidence. At trial, the following colloquy occurred:
The Court: This states that the statement was made by the juvenile to the intake officer, probation officer during the intake process prior to hearing on the merits of the petition filed against the juvenile shall not be used or be admissible against the juvenile in any proceedings in juvenile court or any other court. This was not a statement made during the intake proceedings. This was a statement made by the juvenile to the [probation officer] after she was placed on probation and after she was adjudicated delinquent. The statute strictly applies to the intake process before the child is adjudicated delinquent. I still stand with over ruling your obj ection.
Mr. Russo: The defense would contend that once the drug screen was back, the adulteration was present, the probation at that point in time began a new delinquency proceeding and was going to find this juvenile delinquent in the terms contained within the code. As such, that started a new intake process for the purposes of revocation and as such any statements made are strictly inadmissible.
The Court: I do not agree with that summary of the law. I am going to overrule your objection and note your objection for the record. But I find that any statements that she made to her probation officer do not fall within 9-27-321 as it was not an intake process. She was already adjudicated delinquent^]
We agree with the trial court’s interpretation of Ark. Code Ann. § 9-27-321. Here, K.N.’s statements were made in a pre-revocation context. During a required meeting with her probation officer, K.N. admitted to marijuana use and to taking the adulterant, Quick 45. The use of these substances violated the required conditions of her probation. See Ark. Code Ann. § 9-27- 347(c) (Supp. 2003). Thus, the statements were admitted to prove by a preponderance of the evidence that K.N. violated the terms and conditions of probation, pursuant to Ark. Code Ann. § 9-27-339(e).
The term, “probation officer,” in the statute refers to those scenarios illustrated in Fare v. Michael C., 442 U.S. 707 (1979), in which a sixteen-year-old juvenile, who was already on probation and had a record of prior offenses, was taken into custody on suspicion of murder, and he requested to see his probation officer. In Fare, supra, the United States Supreme Court reversed the California Supreme Court, holding that the California court erred in finding that the juvenile’s request for his probation officer was a per se invocation of the juvenile’s Fifth Amendment rights under Miranda. Although the issues in Fare, supra, are different than the present case, the juvenile requested to speak to his probation officer in a pre-adjudication context. Thus, we conclude that section 9-27-321 protects juveniles from Miranda violations in a pre-adjudication context, not at a revocation hearing.
Next, K.N. argues that her uncorroborated statements to the probation officer are inadmissible. Specifically, K.N. contends that her statements were not corroborated by either the urine sample or actual tests performed on the urine. In response, the State argues that appellant’s statements to her probation officer were not used for the purpose of obtaining an adjudication, and the corroboration requirement does not apply.
We agree with the State’s position. The corroboration requirement is found at Ark. Code Ann. § 16-89-111 (Supp. 2003), which provides that “[a] confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Id. Here, the admissibility of K.N.’s statements were admitted to prove that K.N. had violated the terms of her probation. For this reason, we hold that the trial court was correct in admitting these statements.
Based upon the foregoing conclusions, as well as our standard of review in probation-revocation hearings, we hold that the trial court did not abuse its discretion in admitting K.N’s statements to her probation officer.
For her second point on appeal, K.N. argues that the trial court erred in admitting a letter written by K.N.’s counselor to her probation officer. Specifically, she contends that the letter is hearsay evidence and is inadmissible under Ark. Code Ann. § 9-27-325 (e)(1) and the Arkansas Rules of Evidence.
Over defense counsel’s objections, the trial court admitted a letter written by Lewis Chambliss to Ms. McCown on July 1, 2004, stating that K.N. received counseling services for the past three months. Mr. Chambliss wrote, “[K.N.’s] present diagnosis is mood disturbance not otherwise specified with secondary substance abuse. However, this diagnosis is being formally changed today to a primary diagnosis of polysubstance abuse.” In his letter, Mr. Chambliss recommended that K.N. seek treatment at a residential substance abuse treatment facility. At trial, defense counsel objected to the admissibility of this letter, and the following colloquy occurred:
The Court: Any objection, counsel?
Mr. Russo: Yes, your honor, defense would still object as to hearsay basis because obviously this not the best evidence. The State could have had Mr. Chambliss here and/or better record as to substance for his diagnosis.
The Court: I understand your objection. However, I do believe it sounds like the letter refers to what the court’s recommendations would be if I find that she violated her probation and not to whether or not she violated her probation. So if you are objecting.
* * *
The Court: I am going to allow it in over your objection.
In the present case, K.N.’s argument for reversal fails because the rules of evidence, including the hearsay rule, do not apply to proceedings for granting or revoking probation. As a general rule, the Arkansas Juvenile Code requires the application of the Arkansas Rules of Evidence. See Ark. Code Ann. § 9-25-325(e)(1) (Supp. 2003). However, Ark. R. Evid. 1101(b)(3) of the Arkansas Rules of Evidence provides:
(b) Rules Inapplicable. The rales other than those with respect to privileges do not apply in the following situations:
* * *
(3) Miscellaneous proceedings. Proceedings for extradition or rendition; [preliminary examination] detention hearing in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.
Id. (emphasis added). See also Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979).
We note that the rules of evidence do not apply to probation-revocation hearings, even in a juvenile proceeding, particularly in light of Rule 1101(b)(3). Therefore, because the rules of evidence did not apply at K.N.’s probation-revocation hearing, we find no merit in her argument that the letter written by Mr. Chambliss was inadmissible.
For her third point on appeal, K.N. argues that the trial court erred in ordering incarceration and additional terms of her probation after finding that she had revoked the terms of her probation. Specifically, she contends that her second order of disposition, dated July 12, 2004, includes inpatient drug treatment that was not a part of the original order dated May 25, 2004, which adjudicated her delinquent. In response, the State argues that the trial court’s disposition order on the revocation did not exceed the disposition that could have been ordered at the time K.N.’s probation was imposed.
Arkansas Code Annotated § 9-27-339(e) governs issues of probation revocation in juvenile court. The statute governing revocation proceedings in juvenile court is both clear and specific. Avery v. State, 311 Ark. 391, 844 S.W.2d 364 (1993). Arkansas Code Annotated § 9-27-339 provides that upon finding by a preponderance of the evidence that a juvenile violated his terms of probation, a trial court may:
(1) Extend probation;
(2) Impose additional conditions of probation;
(3) Make any disposition that could have been made at the time probation was imposed; or
(4) (A) Commit the juvenile to a juvenile detention facility for an indeterminate period not to exceed ninety (90) days.
Id. Under Ark. Code Ann. § 9-27-339(e)(3), the trial court had the authority upon revocation to make any disposition that could have been made at the time probation was imposed, which under Ark. Code Ann. § 9-27~330(a) could include probation and detention in a juvenile facility for an indeterminate period not to exceed ninety days.
Without a great deal of analysis, appellant relies upon Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (2002), for the proposition that the trial court erred when it sentenced her to twenty days of detention in addition to an imposed inpatient drug treatment and electronic monitoring. In Bailey, the appellant pled guilty to the charges of residential burglary and theft of property and was placed on probation for twelve months. The trial court also ordered appellant to pay restitution in an amount to be determined within ninety days of the date of the adjudication hearing. The record did not contain an order of restitution, but the parties agreed that appellant was ordered to pay $500 in restitution. The State filed a petition to revoke appellant’s probation based on an allegation of possession of a controlled substance, and the State moved to resentence appellant to make the restitution correct. Appellant pleaded guilty to the possession charge, and the trial court revoked his probation and sentenced him to serve ninety days in a juvenile-detention facility, with thirty days to be served and sixty days deferred. The trial court held a subsequent hearing to address the issue of restitution, where appellant argued that the trial court was without jurisdiction pursuant to Ark. R. Civ. P. 60 to revise the amount of restitution after the original ninety-day time period had elapsed. The trial court entered an amended order of revocation requiring appellant to pay $6,785.60 in restitution.
In Bailey, we reversed, holding that Ark. Code Ann. § 9-27-339 provides four alternatives for disposition upon finding a juvenile in violation of probation. We recognized that, while the trial court had the authority to make any disposition that it could have at the rime probation was imposed, the trial court chose to sentence appellant to serve ninety days. Over two months later, the trial court held a second hearing stemming from the same petition, and found that appellant’s failure to pay restitution was grounds to revoke, and entered an amended order increasing restitution. We concluded that the trial court was without jurisdiction to enter a second disposition from the same order in which the trial court revoked probation and set restitution. See also Avery, supra (stating that after the juvenile court’s denial of the State’s petition for revocation, the juvenile code requires the State to file another petition for revocation and give notice to the juvenile that revocation is again being pursued before probation can be revoked).
Appellant’s reliance on Bailey, supra, is misplaced. Here, the trial court did not amend its revocation order, but rather entered an order of disposition on the revocation after finding that K.N. violated the terms of her probation. At the time that K.N. entered a plea of guilty, the trial court could have ordered detention under Ark. Code Ann. § 9-27-330(a)(11) (Supp. 2003) and probation with the condition of receiving inpatient drug treatment pursuant to Ark. Code Ann. § 9-27-330(a)(4) (Supp. 2003). Based upon this statutory authority, the trial court did not err in ordering both detention and inpatient drug treatment in the revocation order. Accordingly, we affirm on this point.
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Per Curiam.
Appellant Servewell Plumbing, LLC, moves the court for a rule on clerk. Servewell states that the clerk of this court erroneously refused to file the record in this matter on November 24, 2004, and noted it as tendered. Servewell’s motion sets forth the following sequence of events:
• 12.31.03 Order entered dismissing all of Servewell’s claims, except its claim against The Gables for unjust enrichment
• 01.30.04 Servewell filed a notice of appeal
• 05.11.04 Order entered dismissing Servewell’s entire complaint, including the unjust-enrichment claim
• 05.19.04 Servewell filed a notice of appeal for both the 05.11.04 and 12.31.03 orders
• 07.30.04 Order entered extending the time to lodge the record
• 11.24.04 Servewell’s tender of a partial record to the Supreme Court Clerk
• 2.08.04 Full record tendered
Servewell contends that its second notice of appeal was filed eight days after entry of the only final, appealable order and was timely filed. It asserts that it is entitled to an order granting a rule on clerk and directing that the record be filed. There is no response from the appellees.
Arkansas Rule of Appellate Procedure-Civil 5(a) provides that the record on appeal shall be filed with this court’s clerk within ninety days from the filing of “the first notice of appeal,” unless the time is extended by an order of the circuit court. See Ark. R. App. P.-Civ. 5(a) (2004). Rule 5(a), however, contemplates a notice of appeal from zfinal judgment or order. See Ark. R. App. P. — Civ. 2(a)(1) (2004). A review of the record in the instant case reveals that while Servewell filed a notice of appeal from the circuit court’s order of December 31, 2003, that order was not a final order, because the unjust-enrichment claim was still pending, and the order contained no certification pursuant to Arkansas Rule of Civil Procedure 54(b). Thus, any appeal from that order was subject to dismissal by this court. See, e.g., Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002); Tri-State Delta Chems., Inc. v. Crow, 347 Ark. 255, 61 S.W.3d 172 (2001); Rigsby v. Rgsby, 340 Ark. 544, 11 S.W.3d 551 (2000). Because the December 31, 2003 order was not a final order, the notice of appeal filed by Servewell on January 30, 2004, was a nullity.
A final order, disposing of all claims, was entered by the circuit court on May 11, 2004. Servewell then filed a timely notice of appeal from that order and the order of December 31, 2003, on May 19, 2004. A timely extension of time in which to file the record was obtained, and the partial record was timely tendered to the clerk on November 24, 2004. Because the record in the instant matter was tendered timely with respect to the May 19, 2004 notice of appeal from the final order disposing of all claims in the instant matter, we grant the motion for rule on clerk.
In holding as we do on this point, we note that the cases of Smith v. State, 351 Ark. 325, 97 S.W.3d 380 (2002) (per curiam) and Street v. Kurzinski, 290 Ark. 155, 717 S.W.2d 798 (1986), are distinguishable. In both those cases, we upheld the first notice of appeal, but our reasoning in both cases was based on the fact that the judgments appealed from were effective. Here, that is not the case, because the first order appealed from was not a final order and, therefore, was subject to dismissal rendering the first notice of appeal a nullity.
Servewell also petitions this court for certiorari to complete the record. It asserts that it has already received an extension of seven months from the date of the entry of the order, until December 11, 2004, in which to file its record on appeal. Servewell states that on November 24, 2004, it obtained and filed a partial record and that to date, the transcript is still not ready. Counsel for Servewell further states that he has been unable to obtain information regarding the status of the record and, therefore, seeks a writ of certiorari to the court reporter to complete the record within thirty days.
The court reporter, Sheila Russell, responds that she called Servewell’s counsel on November 29, 2004, to inform him that the transcript was ready. She avers that she had until December 11, 2004, to have the record prepared and that prior to receiving a copy of the instant petition on December 2, 2004, she had no prior knowledge of this petition or any other action. She states that when she contacted counsel to inform him that the record was ready, he informed her that he would pick it up “on [December] 7th or 8th[.]” Finally, she responds that she has not tried to hide from counsel and has had no communication from him in several months. She prays that the petition be dismissed as premature and moot.
A review of the docket in this case reveals that the two-volume record was tendered to the Supreme Court Clerk, pending this court’s decision on the above motion for rule on clerk, on December 8, 2004. Because the record has been tendered in its entirety, we add that the instant petition for certiorari to complete the record is moot.
Servewell has further moved this court to supplement the record in the instant case. Servewell’s counsel states that the record, which was tendered on December 8, 2004, is lacking two exhibits which were proffered to the circuit court and are, or maybe, essential to a full understanding of the issues on appeal: (1) a letter from Servewell’s counsel to the circuit clerk and (2) a copy of a payment bond. Servewell requests that the court permit the record to be supplemented. There is no response from the appellees. We grant the motion to supplement the record.
We direct the Supreme Court Clerk to file the record in this case and to set a briefing schedule. Motion for rule on clerk granted. Petition for writ of certiorari to complete the record moot. Motion to supplement the record granted.
Imber, J., concurs.
The instant petition was tendered November 30,2004. | [
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Donald L. Corbin, Justice.
Appellants Baker Refrigeration Systems, Inc., and Wayne Baker (collectively referred to as “Baker”) appeal the order of the Pope County Circuit Court dismissing their complaint against Pdchard A. Weiss, Director of the Arkansas Department of Finance and Administration (“DF&A”), on the ground that the suit was untimely filed. This appeal and its companion case, Mac v. Weiss, Docket No. 04-461, raise an issue of first impression regarding the interpretation of Act 1139 of 1997. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2 (b)(1). We find no error and affirm.
The record reflects that during the spring and summer of 1994, DF&A conducted a sales-tax audit on Baker for the period of January 1991 through July 1994. On August 26, 1994, DF&A’s auditor issued a proposed assessment of $1,120,788.42 in additional sales taxes. Baker protested the audit, pursuant to Ark. Code Ann. § 26-18-404 (1987). A hearing was held before an administrative law judge (ALJ), pursuant to Ark. Code Ann. § 26-18-405 (Supp. 1995). On July 25, 1995, the ALJ ruled in favor of DF&A.
Thereafter, in August 1995, Baker formally requested DF&A’s Commissioner of Revenues to revise and abate the ALJ’s decision, also pursuant to section 26-18-405. In a letter issued on December 24, 1995, the Commissioner granted Baker’s request and ordered a re-audit. DF&A’s auditors issued a revised audit report on February 27, 1997, this time finding unreported sales taxes in the amount of $3,596,875.06.
Baker again protested the proposed assessment and sought further revision from DF&A. In May 1997, Wayne Baker and his accounting representatives met with Assistant Revenue Commissioner John Theis and DF&A’s legal counsel. As a result of the meeting, Theis personally reviewed Baker’s case. Eventually, after a number of revisions, on January 15, 1999, DF&A issued its final assessment, which reduced Baker’s sales-tax deficiency to $278,366.89.
Baker did not appeal the final assessment under Ark. Code Ann. § 26-18-406(a) (Supp. 1999). In fact, Baker took no action at all until July 17 and August 9, 2002, when it made payments to DF&A in the amounts of$3,868.81 and $20,000.00 and noted that these payments were to be applied to four particular taxable periods covered by the assessment. On August 30, 2002, Baker filed with DF&A a verified claim for refund and claims for abatement of sales taxes, pursuant to Ark. Code Ann. § 26-18-507 (Supp. 2001), seeking to recover the foregoing amounts on the theory that they were overpayments. DF&A took no formal action on Baker’s verified claim.
Baker filed the present suit in circuit court on July 9, 2003, challenging both DF&A’s final assessment and its failure to take any action on the verified claim for refund. The complaint also alleged that two of DF&A’s employees, Auditor Ralph Mulder and Audit Supervisor John Martin, violated Baker’s civil rights by allegedly assessing additional taxes to the corporation based on personal animus.
DF&A filed a motion to dismiss Baker’s complaint, arguing that Baker’s suit was, in reality, a challenge to the January 15, 1999, final assessment. As such, it was required to comply with the time limitations in section 26-18-406(a)(l), which provided that a taxpayer could seek judicial relief by paying the tax due for any taxable period or periods within one year of the final assessment and then filing suit within one year of the date of the payment. Alternatively, Baker could have posted a bond for double the amount of the entire assessment within thirty days of the issuance and service of the notice and demand for payment, and then filed suit within thirty days of the posting of the bond, pursuant to section 26-18-406(a)(2)(A). Because Baker did not follow either procedure in a timely manner, DF&A asserted that its sovereign immunity as a state agency was not waived and that the trial court therefore lacked jurisdiction to hear its claim.
DF&A argued that Baker’s suit was not a proper claim for refund under section 26-18-507, as it contended that the remedies available under that section were only applicable to situations where a taxpayer has overpaid the amount of taxes due. It contended further that because Baker had only paid a portion of the amounts due under the final assessment, and had not timely challenged the amount of the final assessment, it had not paid any amount in excess of what was lawfully due. DF&A also argued that Baker’s civil-rights claims were time barred because they were not filed within three years of the time that the conduct by Mulder and Martin was alleged to have occurred.
A hearing was held on the motion to dismiss on January 2, 2004. Thereafter, the trial court issued a letter to counsel granting DF&A’s motion to dismiss, based on the court’s finding that Baker failed to file suit within the applicable time limitations. A formal order was entered on March 18, and a timely notice of appeal was filed by Baker on April 9.
For reversal, Baker argues that the trial court erred in dismissing its suit, because Act 1139 of 1997 had amended sections 26-18-406 and 26-18-507 to allow a taxpayer a third alternative means to challenge a final assessment of additional state taxes.- It argues that this amendment allowed them to pursue their suit under the claim-for-refund method provided in section 26-18-507. Baker also argues that the trial court erred in allowing Assistant Revenue Commissioner John Theis to testify as to the legislative intent of Act 1139. Baker does not, however, make any assignment of error regarding the trial court’s dismissal of its civil-rights claims.
We note at the outset that we review a trial court’s decision in a tax case de novo, but we will not disturb the trial court’s findings of fact unless they are clearly erroneous. Barclay v. First Paris Holding Co., 344 Ark. 711, 42 S.W.3d 496 (2001); Pledger v. Troll Book Clubs, Inc., 316 Ark. 195, 871 S.W.2d 389 (1994). We also review issues of statutory construction de novo, as it is for this court to decide what a statute means. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001); Barclay, 344 Ark. 711, 42 S.W.3d 496. In this respect, we are not bound by the decision of the trial court; however, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Id.
The main thrust of Baker’s argument is that the trial court erred in interpreting sections 26-18-406 and 26-18-507, as amended by Act 1139 of 1997. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Weiss v. McFadden, 353 Ark. 868, 120 S.W.3d 545 (2003); Mississippi River Transmission Corp v. Weiss, 347 Ark. 543, 65 S.W.3d 867 (2002). When the language ofa statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Id. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Id. An additional rule of statutory construction in the area of taxation cases is that when we are reviewing matters involving the levying of taxes, any and all doubts and ambiguities must be resolved in favor of the taxpayer. Id.; Barclay, 344 Ark. 711, 42 S.W.3d 496.
At the time of Baker’s suit, section 26-18-406, titled “Judicial relief,” provided in pertinent part:
(a) After the issuance and service on the taxpayer of the notice and demand for payment of a deficiency in tax established by an audit determination that is not protested by the taxpayer under § 26-18-403, or a final determination of the hearing officer or the director under § 26-18-405, a taxpayer may seek judicial relief from the final determination by either:
(1) Within one (1) year of the date of the final assessment, paying the entire amount of state tax due, for any taxable period or periods covered by the final assessment and filing suit to recover that amount within one (1) year of the date of the payment. The director may proceed with collection activities, including the filing of a certificate of indebtedness as authorized under § 26-18-701, within thirty (30) days of the issuance of the final assessment for any assessed but unpaid state taxes, penalties, or interest owed by the taxpayer for other taxable periods covered by the final assessment, while the suit for refund is being pursued by the taxpayer for the other taxable periods covered by the final assessment; or
(2) (A) Within thirty (30) days of the issuance and service on the taxpayer of the notice and demand for payment, filing with the director a bond in double the amount of the tax deficiency due and by filing suit within thirty (30) days thereafter to stay the effect of the director’s determination.
Under this section, a taxpayer has three means of challenging a final assessment following an audit: (1) make payment of the entire amount assessed within one year from the date of assessment and then file suit challenging the assessment within one year of the date payment is made; (2) make payment on any particular taxable period, covered by the assessment within one year of the date of the assessment and then file suit challenging the assessment of that taxable period within one year from the date payment is made; or (3) post a bond in double the amount of the entire assessment within thirty days of the date of the notice and demand for payment and then file suit challenging the assessment within thirty days of the posting of the bond.
Prior to the passage of Act 1139, section 26-18-406 did not allow a taxpayer to contest particular taxable periods, under a divisible tax theory, by paying only the taxes assessed on those periods and then filing suit to dispute those taxes, as was allowed under the federal tax law. See Taber v. Pledger, 302 Ark. 484, 791 S.W.2d 361, cert. denied, 498 U.S. 967 (1990). DF&A asserts that the Act’s provision for a challenge to divisible tax periods was the only change made to the method for contesting an assessment of additional taxes following an audit.
Baker argues that Act 1139 went a step further in that it provided a fourth alternative to challenge an assessment of tax deficiency, by allowing a taxpayer to file a verified claim for refund under section 26-18-507. To support this contention, Baker points to the language of the Act’s title, subtitle, and Section 10, which provided:
AN ACT TO AMEND THE ARKANSAS TAX PROCEDURE ACT TO CONFORM THE METHODS OF CONTESTING STATE TAX ASSESSMENTS AND FILING CLAIMS FOR REFUND TO THE SIMILAR TAX PROCEDURAL METHODS OF THE FEDERAL LAW FOR CONTESTING FEDERAL TAX ASSESSMENTS AND FILING CLAIMS FOR REFUND; AND FOR OTHER PURPOSES.
Subtitle
TO ALLOW A TAXPAYER THE ALTERNATIVE RIGHT TO CONTEST STATE TAX DISPUTES BY THE POSTING OF BOND METHOD OR THE CLAIM FOR REFUND METHOD WHERE THE DISPUTED TAXES HAVE BEEN FULLY PAID FOR AT LEAST ONE TAXABLE PERIOD.
Section 10. The General Assembly intends, by the passage of this amendment to the provisions of the Arkansas Tax Procedure Act, to clarify its intent that taxpayers involved in state tax disputes with the Arkansas Department of Finance and Administration shall have, as much as possible, the opportunity to secure an objective review of their dispute by a court at law through: (1) the posting of bond method; (2) the payment after assessment method; or (3) the claim for refund method, after the payment by the taxpayer of all state taxes claimed to be due from the taxpayer for at least one complete taxable period involved in the audit period. It is also intended by the General Assembly that the courts of this state are to recognize the “divisible tax theory” applicable to the review of federal tax dispute by federal courts, as also being applicable to the review of state tax disputes by the courts of this state.
Baker asserts that Act 1139 adopted the federal tax law in this area, and that federal law at the time allowed a taxpayer to challenge an assessment of additional tax by filing a claim for refund within three years from the time that the tax return is filed or within two years from the time that the tax was paid, whichever period expires later, or if no return was filed by the taxpayer, within two years of the time that the tax was paid.
DF&A argues that the general language in Act 1139 concerning the conformation of state-law tax procedures to that of federal law cannot be used to contradict the plain language of section 26-18-507, which it asserts clearly provides for a claim for refund only where there is an erroneous overpayment of tax. It asserts that the legislature never intended to allow taxpayers to use the claim for refund method to challenge an assessment of a tax deficiency following an audit, which is how Baker is attempting to use it, and that section 26-18-507 was never meant to be a back-door means of challenging a final assessment once the time limitations in section 26-18-406(a) have expired. We agree.
At the time ofBaker’s claim, section 26-18-507 provided in pertinent part:
(a) Any taxpayer who has paid any state tax to the State of Arkansas, in excess of the taxes lawfully due, subject to the requirements of this chapter, shall be refunded the overpayment of the tax determined by the Director of the Department of Finance and Administration to be erroneously paid upon the filing of an amended return or a verified claim for refund. This subsection does not include actions based on Arkansas Constitution, Article 16, § 13.
(b) The claim shall specify:
(1) The name of the taxpayer;
(2) The time when and the period for which the tax was paid;
(3) The nature and kind of tax paid;
(4) The amount of the tax which the taxpayer claimed was erroneously paid;
(5) The grounds upon which a refund is claimed; and
(6) Any other information relative to the payment as may be prescribed by the director. [Emphasis added.]
Subsection (e)(3) provided that a taxpayer could seek judicial relief under the provisions of section 26-18-406 from either a notice of a denial by the director of the claim for refund or the director’s failure to issue a written decision, after that claim has been filed for six months.
The plain language of section 26-18-507 demonstrates that it applies to cases in which a taxpayer has erroneously overpaid taxes. Subsection (a) states that a taxpayer shall be refunded the overpayment of tax determined by DF&A’s director “to be erroneously paid[.]” To get such a refund, the taxpayer must file a claim specifying, among other things, the amount of the tax that the taxpayer claims “was erroneously paid[.]” See section 26-18-507(b)(4). The payments made by Baker were not done so “erroneously.” Rather, they were made deliberately so that Baker could challenge DF&A’s final assessment.
The facts of this case are similar to those in Taber, 302 Ark. 484, 791 S.W.2d361. There, the taxpayer, Taber, challenged DF&A’s assessment of tax deficiency under both sections 26-18-406 and 26-18-507. This court held that his claim under section 26-18-406 was barred because he had not complied with the procedure in effect at the time, which required the taxpayer to pay the entire amount assessed or post a bond in double the amount before the taxpayer could file suit. This court held that section 26-18-507 was not applicable because Taber’s claim was not one for erroneous overpayment of tax. This court explained:
Taber filed for a refund, following the procedure outlined in subsequent subsections of this statute, and it was denied. He reasserts his divisible tax argument with respect to this section, contend ing that each of the payments he made was an overpayment because no tax was due. We do not consider this section to apply in this case. It deals with a taxpayer’s overpayment through “error of fact, computation, or mistake of law.” Taber paid under protest rather than through error. We have no doubt that his remedies fell under § 26-18-406, not § 26-18-507.
Id. at 488,791 S.W.2d at 363. Although Baker is correct in stating that since our decision in Taber, the legislature has removed the language “error of fact, computation, or mistake of law,” from section 26-18-507(a), our holding is still controlling, as the language pertaining to taxes that are “erroneously paid” remains in both subsections (a) and (b) of that statute. Thus, we conclude that the plain language demonstrates that section 26-18-507 applies only to those cases where a taxpayer has erroneously or mistakenly overpaid taxes, and not where a taxpayer pays the amount assessed deliberately in order to challenge a final assessment of additional taxes following an audit. The latter situation must be brought under the procedures set out in section 26-18-406(a).
Because the language of these statutes plainly and unambiguously demonstrate that a taxpayer who wishes to challenge a final assessment of tax deficiency must comply with the procedures and time constraints set out in section 26-18-406(a), we must reject Baker’s argument that Act 1139, through its title, subtitle, and Section 10, adopted all federal tax procedures regarding challenges to assessed tax deficiencies. In the first place, the title merely states in general language that the act is to amend state tax procedures for contesting assessments to conform to the similar federal procedural methods. This is not a situation like that in Barclay, 344 Ark. 711, 42 S.W.3d 496, where this court affirmed the trial court’s application of the definition of “affiliated group” found in federal tax law to determine whether appelleecorporations comprised such an affiliated group. The state statute at issue in that case specifically instructed that the federal definition found in 26 U.S.C. § 1504(a) and (b) that was in effect at the time the statute was enacted was the definition to be used. In the present case, however, there is no specific adoption of or reference to a particular federal tax provision in Act 1139. Thus, Baker’s reliance on Barclay is misplaced.
In the second place, this court has long held that the title of an act is not controlling in its construction, although it is considered in determining its meaning when such meaning is otherwise in doubt. See, e.g., Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979); Cook v. Southeast Ark. Transp. Co., 211 Ark. 831, 202 S.W.2d 772 (1947); Matthews v. Byrd, 187 Ark. 458, 60 S.W.2d 909 (1933). The title may only be examined for the purpose of shedding light on the intent of the legislature. Henderson, 267 Ark. 140, 589 S.W.2d 565. Where, however, the statute is unambiguous, we will not resort to the title to determine legislative intent. Id.; McDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971). Because we have already concluded that the language of sections 26-18-406 and 26-18-507 is plain and unambiguous, there is no need to search for the legislature’s intent through the title of the act.
Likewise, we will not look to the legislature’s statement of intent, found in Section 10 of Act 1139, in such a way as to contradict the plain language of the substance of that act, which is what Baker is asking us to do. The only specific reference in Section 10 to federal tax procedure is the divisible tax theory, which, as set out above, was specifically adopted by the legislature in its amendment to section 26-18-406(a).
Based on the above and foregoing, we conclude that section 26-18-507 was not designed for use by a taxpayer like Baker who wishes to challenge a final assessment of a tax deficiency following an audit. Rather, it was designed to provide an avenue of relief to those taxpayers who erroneously or mistakenly overpaid the amount of taxes due. The avenue for challenging a final assessment following an audit is by the procedures set out in section 26-18-406(a). If this were not clear enough from the plain language of those statutes, it was made abundantly clear with the passage of Act 1718 of2003, which amended section 26-18-507 to specifically provide:
(f)(1) This section shall not apply to taxes paid as a result of an audit or proposed assessment.
(2) Taxes paid as a result of an audit or proposed assessment may not be recovered unless § 26-18-406 applies.
See Ark. Code Ann. § 26-18-507 (Supp. 2003). The stated purpose in passing Act 1718 was to clarify the procedure for appealing a tax assessment after payment. Thus, even though this amendment was not in effect at the time that Baker filed its claim, we may consider it because the legislature specifically intended Act 1718 to be a clarification of existing law, not a change in the law. See Pledger v. Baldor Int’l, Inc., 309 Ark. 30, 827 S.W.2d 646 (1992).
Finally, we reject Baker’s suggestion that by passing Act 1139, the legislature intended to allow a taxpayer to pursue both the administrative remedies provided in sections 26-18-406 and 26-18-507. In response to questions from this court during oral argument, Baker’s counsel stated that Act 1139 allowed a taxpayer to challenge the initial assessment following an audit; go through all the administrative review procedures offered in sections 26-18-404, -405, and -406; and then, following the issuance of a final assessment, seek a second administrative review by filing a claim for refund under section 26-18-507, thus beginning the process all over again. Counsel averred that such was the procedure under federal tax law.
We agree with DF&A that the procedures set out in section 26-18-406 and 26-18-507 are parallel administrative processes, one which allows a taxpayer to contest an assessment, and one which allows a taxpayer to obtain a refund of an erroneous overpayment of taxes. Here, there is no doubt that Baker was afforded the full panoply of administrative relief for contesting an assessment. Specifically, Baker protested the initial audit results, pursuant to section 26-18-404, and was given a hearing before an ALJ, pursuant to section 26-18-405. Following the ALJ’s ruling in favor of DF&A, Baker formally requested the Commissioner of Revenues to revise and abate the ALJ’s decision, also pursuant to section 26-18-405. The Commissioner then ordered a re-audit, which ultimately resulted in a greater tax deficiency. Again, Baker protested the proposed assessment and sought further revision. Again, the department obliged Baker by having its Assistant Revenue Commissioner personally review Baker’s case. This review resulted in a final assessment which lowered considerably the amount of tax deficiency previously reported. The only part of this procedure that Baker did not avail itself of was the judicial review of the final assessment under section 26-18-406(a).
From our review of the foregoing tax statutes, it is abundantly clear that the procedures established in sections 26-18-404, -405, and -406 are specifically for the purpose of providing a taxpayer with the means of challenging DF&A’s assessment of additional taxes due, while the procedures set out in section 26-18-507 are for the purpose of providing a taxpayer with the means to seek a refund for taxes erroneously overpaid to DF&A. These procedures are distinct and parallel, such that a taxpayer may only take advantage of one or the other, depending on the nature of the claim. We find no support, either in the statutes themselves or in Act 1139, for Baker’s assertion that the legislature intended to give the same taxpayer two opportunities for administrative review of the same claim.
In sum, we affirm the trial court’s dismissal of Baker’s suit because it was a challenge to a final assessment following an audit and it was not timely filed under section 26-18-406. The state’s sovereign immunity, found in Article 5, § 20, of the Arkansas Constitution, may be waived only in limited circumstances. State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). A trial court acquires no jurisdiction where the suit is one against the state and there is no waiver of sovereign immunity. Id. By enacting section 26-18-406, the legislature has permitted suits against the state’s DF&A. However, there must be full compliance with this type of statute before sovereign immunity is waived. Id. (citing Hercules, Inc. v. Pledger, 319 Ark. 702, 894 S.W.2d 576 (1995)). The facts of this case show that DF&A issued its final assessment of tax deficiency on January 15, 1999. Baker had until one year later to make payment on any taxable periods covered by the assessment, and then one year from the date of payment to file suit in circuit court. Baker did not make any payments until July 2002, over three years after the final assessment. Accordingly, Baker did not comply with the provisions of section 26-18-406, and, consequently, the trial court acquired no jurisdiction over this suit.
For his final point for reversal, Baker argues that the trial court erred in allowing DF&A’s Assistant Commissioner John Theis to testify about the legislative intent in passing Act 1139 of 1997. Baker does not state how, if at all, it was prejudiced by the admission of this testimony. We will not reverse a trial court’s evidentiary ruling without a demonstration of prejudice. See Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004) (citing Ark. R. Evid. 103(a) for the proposition that evidentiary error may not be predicated upon a ruling that admits evidence unless it affects a substantial right of the party). Here, there can be no prejudice, because we conclude that the meaning of the statutes as amended by Act 1139 is apparent from their plain language. Any additional information that Theis may have offered on the issue would have been superfluous.
Affirmed.
To support its claim, Baker offered a letter from the Department of Treasury, Internal Revenue Service, stating that 26 U.S.C. § 6511(a) provided such a procedure. | [
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RITA W. GRUBER, Judge
11 This case involves two separate appeals concerning the Craighead County Circuit Court’s granting of summary judgment in favor of appellees Judy and Stanley Foster that ordered the specific performance of a contract where the Fosters were to purchase certain real property from appellees Linda Alden and Danny Brandon. Ronnie McCord, Clint McCord, and McCord Farms, LLC (collectively, the McCord defendants), appeal because they had the property under lease and the circuit court’s grant of summary judgment extinguished their right of prior refusal to purchase the land. Ditch 56 Farms, LLC, appeals from the circuit court’s denial of its motion to intervene because it had a contract to purchase the property |afrom the McCord defendants. We reverse the summary judgment and the denial of the motion to intervene and remand for further proceedings in conformity with this opinion.
Background
In June 2008, Sylvester Brandon leased 160 acres of farmland to Ronnie and Clint McCord for ten years. The lease provided that it was to be binding on the parties and their héirs, personal representatives, and assigns. The McCords could not assign or sublease any part of the premises without Brandon’s prior written approval. If Brandon were to sell the property, it was to be subject to the lease. The lease also included a provision for a right of first refusal for Sylvester’s children, Linda Alden and Danny Brandon, if Sylvester decided to sell the property during the term of the lease. If neither Alden nor Danny Brandon wanted to buy the property, a right of second refusal was given to the McCords.
Sylvester Brandon died in April 2010, having never offered to sell the land. His will left one tract of eighty acres to Brandon and another eighty acres to Alden, and his estate executed distribution deeds to them. The McCords continued to farm the land in accordance with their lease.
In November 2011, the Fosters contracted to purchase all 160 acres from Danny Brandon for $528,000. Alden did not sign the contract but both Brandon and Alden cashed earnest-money checks from the Fosters. Three weeks later, Brandon and Alden signed separate but similar contracts honoring the McCords’ right of refusal at the same price as offered by the Fosters. The next day, the McCords executed an offer and sale contract [..¡whereby they would convey the property to Ditch 56 Farms for the same price offered by the Fosters.
The Fosters filed suit seeking a preliminary injunction and specific performance of the sales contract or, in the alternative, damages for breach of contract against Brandon and Alden. The Fosters sought declaratory relief as to the validity of Ronnie and Clint McCord’s right of refusal and their contract to purchase the property from Brandon and Alden.
The circuit court granted the Fosters’ request for an ex parte temporary restraining order. The McCord defendants, Brandon, and Alden were enjoined and restrained from closing the sale for the purchase of the property until further orders of the court. The parties later entered into a consent injunction whereby all parties were restrained from closing on the sale of the property until the court finally determined the matter.
Brandon and Alden responded that the complaint should be dismissed and pled unclean hands and estoppel to all claims. The McCords answered, denying the material allegations of the complaint. Their answer also included a counterclaim against the Fosters and a cross-claim against Brandon and Alden for intentional interference with a contractual relationship.
Ditch 56 Farms filed a motion to intervene, and its proposed complaint sought declaratory judgment, specific- performance, and breach of contract and damages against Alden, Brandon, and the McCord defendants.
|4The Fosters moved for summary judgment, asserting that Alden and Brandon had breached the sales contract and requesting that they be granted judgment against Brandon and Alden. They also sought a declaration that the McCords’ contract to purchase the property was unenforceable. In an accompanying brief, the Fosters argued that the McCords’ right of refusal was never triggered because the decedent never offered the property for sale, which, according to the Fosters, was a condition precedent for the right of refusal for 'the McCord defendants.
After hearing arguments on the motion, the court granted summary judgment to the Fosters and ordered Brandon and Alden to specifically perform their contract with the Fosters. The court found that the decedent had never offered the property for sale during his lifetime and that the right of refusal held by Brandon and Alden merged into the fee title and was extinguished when they inherited the property from their father. It also held that the conveyance to the Fosters would be subject, to the remaining terms of the McCords’ lease, with the exception of the right of refusal provision. Because of the manner in which Brandon and Alden acquired the property (i.e., inheritance), the court concluded that the McCords’ secondary right of refusal was never triggered. As a result, the court determined that Ditch 56 Farms’ intervention motion was moot. The court ended its order by stating “all issues between the parties, are disposed by this Order, and the case will be removed from the docket.”
15After both the McCords and Ditch 56 Farms filed their notices of appeal, the McCord defendants also filed a motion seeking a stay of the judgment until the appeal could be heard. The court denied the motion to reconsider. It also refused to consider granting a stay until the McCords posted a bond in the amount of $574,700.32.
We dismissed appeals by the McCords and Ditch 56 Farms without prejudice because the order they appealed from was not final. Ditch 56 Farms, supra. Specifically, we held that the summary judgment did not decide the McCords’ counterclaim for damages against the Fosters or their cross-claim for damages against Alden and Brandon. We also found that Ditch- 56 Farms’ motion to intervene was neither denied nor dismissed but found moot because of the summary judgment granted to the Fosters and never expressly disposed of.
On remand, the Fosters filed a rriotion to clarify the order granting summary judgment and to, determine whether the McCords’ counterclaim or cross-claims remained viable after the grant of summary judgment based on our statement in Ditch 56 Farms, supra, that those claims had not been expressly disposed of. The McCords responded, arguing that their claims remained viable.
The court entered an order dismissing with prejudice any remaining eross-claims or counterclaims brought by the McCords, and denying Ditch 56 Farms’ motion to intervene. The McCords and Ditch 56 Farms now appeal.
The McCords’ Appeal
Although the McCords argue four points, the dispositive point is the circuit court’s interpretation of the McCord defendants’ separate right of refusal under the lease. At issue are the following'provisions:
|fi9. Successors and Assigns. This Agreement shall be binding on the parties, their heirs, personal representatives or assigns.
19. Right of First and Second Right of Refusal. During the term of this Agreement, LINDA ALDEN and DANNY BRANDON shall have the right of first refusal to purchase the Premises. In the event neither Ms. Alden nor Mr. Brandon desire to purchase the Premises, MCCORD shall have a right of second refusal to purchase the Premises on the same terms offered by or , to any third party.. BRANDON will deliver written notice of any such proposed sale, to MCCORD. MCCORD will have thirty (30) days from the receipt of the notice to notify BRANDON, in writing, of their willingness to purchase the Premises on those terms. If MCCORD decides not to so purchase or fails to responds within the thirty (30) day period, BRANDON is entitled to proceed with the third party sale.
In general terms, a “right of first refusal” is the generic label commonly used to describe a contractual right to preempt another. 3 Arthur L.Corbin, Corbin on Contracts § 11.3, at 469 (Joseph M. Perillo ed., rev. ed. West 1996). The conventional right of first refusal “is subject to an agreed condition precedent, typically the owner’s receipt of an offer from a third party and the owner’s good-faith decision to accept it.” Id. at 470. At that point, the right of first refusal “ripens” into an option, and the preemptive right holder may exercise his preemptive right to create a contract based on the same terms that the owner is willing to accept from the third party. See id. at 470-71. A right of first refusal is distinguished from an absolute option in that the former does not entitle the lessee to compel an unwilling owner to sell. Instead, it requires the owner, when and if he decides to sell, to offer the property first to the person entitled to the right of first refusal. Estate of Johnson v. Carr, 288 Ark. 461, 706 S.W.2d 388 (1986) (Carr II).
Also, generally, the death of the owner prior to any sale extinguishes any preemptive right. Mercer v. Lemmens, 230 Cal.App.2d 167, 40 Cal.Rptr. 803 (1964); Bloomer v. Phillips, 164 A.D.2d 52, 562 N.Y.S.2d 840 (N.Y.1990). This is but a corollary to the prevailing rule that rights of first refusal are not assignable unless the instrument indicates otherwise:
[R]ights of first refusal are presumed to be personal and are not ordinarily construed as transferable or assignable unless the particular clause granting the right refers to successors or assigns or the instrument otherwise clearly shows that the right was intended to be transferable or assignable.
Park Station Ltd. P’ship, LLLP v. Bosse, 378 Md. 122, 835 A.2d 646, 655 (2003) (citing other jurisdictions); accord Masterson v. Sine, 68 Cal.2d 222, 65 Cal.Rptr. 545, 436 P.2d 561, 566 (1968); Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 876 (Ind. App. 2011); Dahl v. Zabriskie, 249 Iowa 584, 88 N.W.2d 66, 67 (1958); Jones v. Stahr, 16 Neb.App. 596, 746 N.W.2d 394, 399 (2008); Sweeney v. Lilly, 198 W.Va. 202, 479 S.E.2d 863, 866 (1996); Corbin, Corbin on Contracts § 11.15, at 587; Jonathan F. Mitchell, Can a Right of First Refusal be Assigned? 68 U. Chi. L. Rev. 985, 993 ( 2001). However, the lease in the present case may indicate otherwise by the inclusion of Paragraph 9.
We apply the well-established law of contract interpretation. The court’s duty is to construe the meaning of the writing in accordance with the plain language employed. Po-Boy Land Co. v. Mullins, 2011 Ark. App. 381, 384 S.W.3d 555. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. Id. But, if there is doubt or uncertainty as to the meaning of the writing and it is fairly- susceptible to more than one equally reasonable interpretation, it is ambiguous. Id. The meaning of an ambiguous writing is a question of fact, and the fact-finder may use parol evidence to aid in interpreting the writing. Id.; see also First Nat’l Bank v. Griffin, 310 Ark. 164, 832 S.W.2d 816 (1992).
[ sIn the case at bar, our object is to ascertain the intention of the parties, not from particular words or phrases, but from the entire context of the agreement. See Byme, Inc. v. Ivy, 367 Ark. 451, 241 S.W.3d 229 (2006). It is well settled that a contract should be construed so that all of its parts are in harmony, if that is possible. Id. When a contract contains general and specific provisions relating to the same subject, the specific provision controls over more general terms. Taylor v. Hinkle, 360 Ark. 121, 200 S.W.3d 387 (2004).
Here, the parties presented the court with more than one equally reasonable interpretation of the lease between Sylvester Brandon and the McCords. The McCords argue that their preemptive right continued even after Brandon and Alden acquired the fee title to the property because Paragraph 9 of the lease made the lease' binding on the parties’ “heirs, personal representatives or assigns.” The Fosters, on the other hand, argue that the McCords’ preemptive right of refusal never ripened because the decedent never offered the property for sale during his lifetime. They further argue that the preemptive rights held by Brandon and Alden were extinguished when they inherited the property from their father. However, the Fosters do not discuss the effect of Paragraph 9 on the McCords’ right of refusal.
Summary judgment should be granted only when it is clear that there are 'no genuine issues of material fact to be litigated, and the moving party is entitled to judgment as a matter of law. White v. Shepard, 2015 Ark. App. 223, 459 S.W.3d 333. Here, there is clearly a factual dispute as to the intention of the parties regarding the relationship- between Paragraphs 9 and 19. In other words, the relevant issue is whether the original parties to the lease intended that Brandon and Alden would be required to offer the property to the McCords in the event that they acquired the property from the decedent and desired to . sell during the term of .the 19McCords’ lease. The determination of the intent of contracting parties is largely a factual one. Perry v. Baptist Health, 358 Ark. 238, 189 S.W.3d 54 (2004); Deltic Timber Corp. v. Newland, 2010 Ark. App. 276, 374 S.W.3d 261. Such factual findings are not within the réalm of a summary judgment. See Lee v. Mansour, 104 Ark. App. 91, 289 S.W.3d 170 (2008). The purpose of a summary judgment is not to try the issues but to determine whether there are any issues to be tried. Po-Boy Land Co., supra.
We therefore reverse the summary judgment and remand for further proceedings in conformity with this opinion.
Ditch 56 Farms’ Appeal
For its appeal, Ditch 56 Farms argues that the circuit court erred in denying its intervention petition. When the denial of an Ark. R. Civ. P. 24(a)(2) motion to intervene by right is based on a failure by the appellant to meet the requirements of the rule, our review is de novo. Certain Underwriters at Lloyd’s, London v. Bass, 2015 Ark. 178, 461 S.W.3d 317.
Arkansas Rule of Civil Procedure 24 governs intervention in a civil cause of action and provides for both intervention as a matter of right and permissive intervention. To intervene as a matter of right when there is no statute expressly permitting it, Rule 24(a)(2) requires the applicant to show that (1) he has a recognized interest in the subject matter of the litigation, (2) the interest might be impaired by the disposition of the action, and (3) the interest is not adequately protected by any of the existing parties to the action. Pearson v. First Nat’l Bank, 325 Ark. 127, 924 S.W.2d 460 (1996). Thus, if a party meets all three factors under Rule 24(a)(2), intervention as a matter of right cannot be denied. Bass, 2015 Ark. 178, at 14, 461 S.W.3d at 326; see also Schacht v. Garner, 281 Ark. 45, 46, 661 S.W.2d 361, 362 (1983); Midland Dev., Inc. v. Pine Truss, Inc., 24 Ark. App. 132, 750 S.W.2d 62 (1988).
In the present case, Ditch 56 Farms sought to intervene because it has a contract with the McCord defendants to purchase the property from them once the McCord defendants exercised them preemptive right of refusal. Its proposed complaint sought declaratory judgment, specific performance, and a claim for damages for breach of contract against Alden, Brandon, and the McCord defendants. However, the circuit court did not conduct a Rule 24 analysis. Instead, the court simply denied the motion to intervene as moot once it determined that the McCords’ right of refusal had been extinguished. As we hold that the circuit court erred in granting summary judgment to the Fosters on that basis, we reverse the denial of Ditch 56 Farms’ motion and remand the case to the circuit court to properly consider the motion to intervene. Generally, such a motion should be considered prior to consideration of the merits of the underlying claims. See Christian v. McVesting, LLC, 2014 Ark. App. 509, 443 S.W.3d 578.
Reversed and remanded.
Kinard and Vaught, JJ., agree.
. The circuit court would later find that Ditch 56 Farms had entered into a contract on December 14, 2011, where it would sell the property to another party.
.The Fosters amended their complaint twice; however the amendments are not germane to this appeal.
. The circuit court later awarded the Fosters attorney’s fees and costs against Brandon and Aldén. That award is not at issue on appeal.
. In its brief, Ditch 56 Farms elected to call its contract with the McCords an "assignment.” We express no opinion as to the nature and effect of the document. | [
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CLIFF HOOFMAN, Judge
1 Appellants Hankook Tire Company, Limited, and Hankook Tire America Corporation (collectively referred to as Han-kook) appeal the entry of the July 28, 2015 order of the Conway County Circuit Court that assessed attorney fees against Han-kook for its discovery obstruction, awarding the fees to appellee Elmer Philpot. Because-we lack appellate jurisdiction-over this appeal, we dismiss.
Hankook manufactures and distributes tires. Appellee Elmer Philpot was driving a dump truck that had a Hankook tire on it when the tire failed, Philpot lost control of the dump truck, and Philpot crashed and was injured. This case was initially filed in June 2012 in Conway County Circuit Court.
In more precise detail, Philpot alleged that Hankook manufactured the inherently |2defective steel-belted tire “Hankook 385/65R 22.5 Super Single radial medium truck tire” and distributed it for sale in Arkansas. This tire was installed on the right front of a 1985 Ford 9000 dump truck, which was loaded with gravel and which Philpot was driving when the tire tread belt allegedly failed. Philpot alleged that Hankook was negligent in its design, testing, construction, and manufacture of the tire and in its failure to inspect the tire or warn of the defects that it knew or should have known to exist. Philpot contended that this tire was unfit and unsafe for its intended .use and purpose and that Hankook breached, an implied warranty. Philpot also sued his employer and the owner of the truck for failing to properly inspect.and maintain the truck and thus providing defective equipment for Philpot’s use.
Interrogatories and requests for production of documents were sent to Hankook in December 2012. A few non-confidential documents were produced in a timely fashion. In August 2013, Philpot filed a motion to compel answers to. his fifty-three requests for production, seeking documents related to Hankook’s tire design process, manufacturing process, prior knowledge and testing concerning tread separations in steel-belted radial medium truck tires, warranty return data and quality testing in those tires, and other similar incidents in those tires. Philpot contended that this information was directly relevant to the issues before the court but that Hankook had unilaterally and inappropriately limited the scope of discovery and was manifesting a “stonewall approach.”- Philpot argued that Hankook was objecting to any request about their general manufacturing process and only responding to queries as to the specific model of tire, on this dump truck, only as to the plant in which this particular tire was manufactured, and only those documents created at or within a few years |3of this particular tire’s manufacture. Prior attempts to resolve this difference in opinion on the scope of discovery were not successful, Hankook’s attorney noting that if the trial court’s intervention was necessary, then so be it.
Philpot sought an order from the trial court compelling discovery pursuant to Ark. R. Civ. P. 37, noting that discovery is broader than solely evidence that will be admissible at trial. Philpot asked for. Rule 37 .sanctions for Hankook’s unreasonable and unjustifiable refusal to comply, with his reasonable, appropriate, and relevant discovery requests.
Hankook resisted in a response filed in September 2013, contending that it was providing reasonably related responses, translating Korean documents into English for Philpot, and otherwise legitimately objecting to revealing confidential trade secrets. Protective orders were put in place to protect the secrecy of company - documents.-
On October 17, 2013, a hearing was conducted on the motion to compel, and extensive discussion was had about what would constitute reasonable parameters for discovery. In an order filed on November 26, 2013, the trial court granted Philpot’s motion to compel 'and ordered Hankook to produce documents related to all tires that it manufactured that used the same inner liner compound and/or the same belt skim and set specific time frames for particular discovery requests. Hankook was ordered to provide its document retention policies and other responsive documentation within forty-five days; it was ordered to translate any Korean documentation into English within ninety days.
On March 19, 2014, Philpot filed a “Motion For Sanctions For Spoliation And Concealment Of Evidence.” A hearing was conducted on September 18, 2014, following 14which the trial judge gave permission for the parties to submit post-hearing briefs and took the matter under advisement.
The trial judge issued a detailed letter order on January 21, 2015, in which he ordered that due to “the multiple hearings that have been necessitated because of the' Defendants obtuse and Unnecessary abuse' of the discovery process,” and “to deter any future similar conduct,” Rule 37 sanctions woiild be imposed in the form of reasonable attorney fees. The trial judge found that’ the case had been pending for over two years, that Hankook initially responded to the multiple requests for information by providing a small stack of documents primarily in Korean, and then produced them in English only, after a lengthy and exhaustive process. The letter order recited that: ’ ■
This Court previously made clear to the parties that it interpreted the Arkansas Rules of Civil Procedure and the discovery process to be quite liberal and the Court reiterated numerous times that it was the Court’s belief that anything should be produced that could be relevant and possibly lead to discoverable information. This Court, at the request of Hankook, has even entered various confidentiality protective orders. This Court has previously rejected the narrow scope of discovery requested by Hankook and ordered a far more extensive 'scope of discovery than was sought by Hankook. Despite the wide scope of discovery under this Court’s Order, Hankook produced virtually no pertinent documents in its January 10, 2014 supplemental response.
The trial court noted that it was empowered to assess sanctions for discovery abuse pursuant to Rule 37 when a party’s conduct necessitates the motion, and furthermore that the trial court has the inherent authority to police the conduct of the parties and attorneys appearing before it.
The trial court declined to revoke the pro hac vice admission of one of Hankook’s attorneys, found that Philpot had not produced a sufficient record to support that Hankook |fiintentionally destroyed or suppressed documents, and preliminarily declined to instruct t]ie jury on spoliation of evidence.
The trial judge commanded Philpot to prepare a verified motion for attorney fees. In his motion, Philpot appended billing records to support his request for reasonable attorney fees of the three law firms representing him. Those requests were for $26,700 (Kelly Law Firm at $250 per hour); $35,700 (Kaster, Lynch, Farrar & Ball, LLP at $350 per hour); and $13,412.50 (Gordon, Carruth & Virden, PLC at $250 per hour), which was a total of $75,812.50. In response, Hankook argued that the total fee sought was not reasonable because much of the work was unnecessary, excessive, and duplicative; that some was unrelated to discovery; and that a reasonable total fee would not exceed $25,000 (about one-third of that requested). Hankook did not quarrel "with the hourly rate but did quarrel with the number of hours assessed for pure motion-to-compel and motion-for-sanctions issues.
The trial judge issued an order awarding attorney fees on July 23, 2015, because Hankook’s “conduct in obstructing discovery has been egregious .... [and] to deter further such obstruction of discovery in this matter.” The trial court significantly reduced each firm’s hours billed. The attorney fee awards were $18,787.50 to Kelly Law Firm; $17,125 to Kaster, Lynch, Far-rar & Ball, LLP; and $7,112.50 to Gordon, Carruth & Virden, PLC—a total of $43,025. The trial court found that this sanction, which was much less than what was requested, was “justified under the circumstances.” The order recited that “[t]his Order is a final Order for purposes of appeal,” followed by the trial judge’s signature. Appended to the end of this order was the following:
IrRULE 54(b) CERTIFICATE
Upon the basis of the foregoing factual findings, the Court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., and it has determined that there is no just reason for delay of the entry of a final judgment and that the Court has and does hereby direct that the judgment shall be a final judgment for all purposes.
A timely notice of appeal was filed; and this appeal followed.
Although neither party raises the issue, the question of whether an order is final and subject to appeal is a jurisdictional question, which the appellate court will raise sua sponte. Kowalski v. Rose Drugs of Dardanelle, Inc., 2009 Ark. 524, 357 S.W.3d 432; Moses v. Hanna’s Candle Co., 353 Ark. 101, 110 S.W.3d 725 (2003). An appeal may be taken from a final judgment or decree entered by the circuit court, or from an order that in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action. Ark. R. App. P.-Civ. 2(a)(1) & 2(a)(2) (2015). The fundamental policy behind this rule is to avoid piecemeal appeals. Cortese v. Atl. Richfield, 320 Ark. 639, 898 S.W.2d 467 (1995). A final judgment is the cornerstone of appellate jurisdiction, and this requires that the order dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Robinson v. Villines, 2012 Ark. 211, 2012 WL 1739140. An order that recites that it is final for purposes of appeal does not make it so, and this order awarding attorney fees for discovery obstruction clearly does not end the litigation, dismiss the parties, or conclude their rights in this lawsuit.'
Arkansas Rule of Appellate Procedure-Civil 2(a)(ll) permits appeal when the order is not final but a valid Rule 54(b) certificate supports immediate appeal, which requires that the trial court make an express determination supported by specific factual findings 'that there |7is no just reason for delay. See Robinson, supra. Our supreme court has held that the discretionary power of the trial court to direct finality is to be exercised infrequently and only in harsh cases. Id. When a certificate is void of specific factual findings as to the existence of danger of hardship or injustice that could be alleviated by an immediate appeal, the appellate court dismisses the appeal for lack of appellate jurisdiction. Id.; see also Stratton v. Ark. State Hwy. Comm’n, 323 Ark. 740, 917 S.W.2d 538 (1996); Davis v. Wausau Ins. Cos., 315 Ark. 330, 867 S.W.2d 444 (1993). The Rule 54(b) certificate appended to the order on appeal is wholly lacking in supportive facts to permit immediate appeal of this order for attorney fees for discovery obstruction. The only specific findings of fact in the body of the order related to the factual underpinning of the reasonableness and amount of the attorney fee ultimately awarded.. The Rule 54(b) certificate was woefully inadequate. See Robinson, swpra.
Arkansas Rule of Appellate Procedure— Civil 2 also provides for specific other orders that may be appealed. An order that strikes any pleading or disqualifies an attorney is appealable under Ark. R. App. P.-Civ. 2(a)(4) and 2(a)(8), but this :order does not fit these qualifications because those discovery sanctions were not entered. A civil or criminal contempt order that imposes a sanction and constitutes the final disposition of the contempt matter is appealable. Ark. R. App. P.-Civ. 2(a)(13). Hankook’s notice of appeal cited to the contempt-with-sanctions provision as the basis to invoke appellate jurisdiction, but the trial court here did not hold Hankook “in contempt,” although it could have so determined as an appropriate sanction under Rule 37(b)(2)(D). Rather, the trial court here entered an order for attorney fees for discovery obstruction. This is not a final, appealable order. Compare Asset Is Acceptance, LLC v. Newby, 2014 Ark. 280, 437 S.W.3d 119 (holding that the appellate court lacked jurisdiction over an interlocutory appeal of the denial of sanctions pursuant to Ark. R. Civ. P. 11); Cooper Tire & Rubber Co. v. Phillips Cty. Circuit Court, 2011 Ark. 183, 381 S.W.3d 67 (holding that the general rule is that interlocutory appeals of discovery matters are not appealable); Ford Motor Co. v. Harper, 353 Ark. 328, 107 S.W.3d 168 (2003) (same); Farm Serv. Coop, of Fayetteville v. Cummings, 262 Ark. 810, 561 S.W.2d 317 (1978) (same); Ark. R. App. P.-Civ. 2(f) (providing certain procedures to permit interlocutory appeals of privilege and work product matters). In sum, be cause the pi-esent appeal is of a non-final, non-appealable order, we lack jurisdiction to consider it.
Appeal dismissed.
Gladwin, C.J., and Brown, J., agree. | [
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Jim Hannah, Justice.
Appellant Arkansas Department of Finance & Administration (DF&A) appeals the partial summary judgment entered by the Pulaski County Circuit Court, Sixth Division, wherein the circuit court found that the complaint was not barred by the doctrine of sovereign immunity and that Honda is a “taxpayer” for the purposes of Ark. Code Ann. § 26-52-309 (Repl. 1997), which is commonly known as the “Bad Debt Statute.” We hold that the circuit court erred in finding that Honda is a taxpayer under the “Bad Debt Statute” and entitled to a refund. This is an appeal required by law to be heard by this court; our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(8). See also Ark. Code Ann. § 26-18-406 (Repl. 1997).
Facts
Honda sold and leased motor vehicles and financed the sale of motor vehicles from motor-vehicle dealerships (collectively referred to as “sellers”) to consumer purchasers. In a typical transaction, the consumer purchaser entered into an installment contract for the purchase of a motor vehicle from the seller. The amount financed included the purchase price of the motor vehicle, as well as the gross receipts tax due on the vehicle, which the seller paid to the State. The seller then assigned the installment contract to Honda, and Honda collected the payments. In return, Honda paid the seller the full financed amount. At some point during the period of repayment, the purchaser defaulted on the installment contract. After resorting to available remedies against the purchaser, Honda wrote off the uncollectible portion of the debt for federal income tax purposes.
By a letter dated November 30, 2001, Honda filed a claim with the DF&A for a refund or deduction of the pro rata portion of gross receipts tax related to bad debts arising out of the sale and financing of motor vehicles in Arkansas. The claim was filed pursuant to the Bad Debt Statute, which allows taxpayers that finance sales transactions a deduction or refund for gross receipt tax that was previously reported and remitted, but is now uncollectible. DF&A determined that Honda was not a taxpayer under the Bad Debt Statute and denied Honda’s claim for a refund.
Pursuant to Ark. Code Ann. § 26-18-406, Honda appealed DF&A’s decision to the circuit court, and partial summary judgment was entered on March 29, 2004. A Rule 54(b) certification was obtained from the circuit court, and DF&A now appeals the partial summary judgment, arguing that the circuit court erred in finding that sovereign immunity did not bar the action and that Honda was a taxpayer under the Bad Debt Statute.
Standard of Review
As a general rule, in reviewing the grant of a motion for summary judgment, the appellate court determines if summary judgment was appropriate based on whether the evidence presented in support of summary judgment leaves a material question of fact unanswered. Mack v. Brazil, Adlong, & Winningham, PLC, 357 Ark. 1, 159 S.W.3d 291 (2004). The appellate court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
However, the granting of this summary judgment motion was based upon the circuit court’s interpretation of the Bad Debt Statute. The question of the correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Cooper Realty Invs., Inc. v. Arkansas Contractors Licensing Bd., 355 Ark. 156, 134 S.W.3d 1 (2003).
A tax deduction is allowed only as a matter of legislative grace and one claiming the deduction bears the burden of proving that he is entitled to it and of bringing himself clearly within the terms and conditions as may be imposed by the statute. St. Louis Southwestern Ry. Co. v. Ragland, 304 Ark. 1, 4, 800 S.W.2d 410, 412 (1990); Skelton v. B.C. Land Co., 256 Ark. 961, 513 S.W.2d 919 (1974). Similarly, we have held in numerous tax-exemption cases that any tax exemption must be strictly construed against the exemption and any doubt suggests the exemption should be denied. See, e.g., Rineco Chem. Indus., Inc. v. Weiss, 344 Ark. 118, 40 S.W.3d 257 (2001); Technical Servs. of Ark., Inc. v. Pledger, 320 Ark. 333, 896 S.W.2d 433 (1995); Pledger v. C.B. Form Co., 316 Ark. 22, 871 S.W.2d 333 (1994); Southwestern Ry., supra.
In this case, the circuit court’s decision denying Honda’s claim to a deduction is based upon the circuit court’s construction of “taxpayer” under the Bad Debt Statute. This court outlined our rules of statutory construction in Faulkner v. Arkansas Children’s Hospital, 347 Ark. 941, 952, 69 S.W.3d 393, 400 (2002), where we stated:
The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Raley v. Wagner, 346 Ark. 234, 57 S.W.3d 683 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory constmction. Stephens v. Arkansas Sch. for the Blind, 341 Ark. 939, 20 S.W.3d 397 (2000); Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). Where the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. Stephens v. Arkansas Sch. for the Blind, supra (citing State v. McLeod, 318 Ark. 781, 888 S.W.2d 639 (1994)). Finally, the ultimate rule of statutory constmction is to give effect to the intent of the General Assembly. Ford v. Keith, 338 Ark. 487, 996 S.W.2d 20 (1999); Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).
With this standard of review in mind, we turn to Honda’s argument on appeal.
Sovereign Immunity
DF&A argues that sovereign immunity bars Honda’s action in this case because Honda is not a taxpayer and only taxpayers may receive a refund under the “Bad Debt Statute.” Article 5, § 20 of the Constitution of Arkansas provides: “The State of Arkansas shall never be made Defendant in any of her courts.” Sovereign immunity is jurisdictional immunity from suit. D.H.S. v. Crunkleton, 303 Ark. 21, 791 S.W.2d 704 (1990). However, sovereign immunity may be waived. Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). In its complaint, Honda sought to enforce its rights as a taxpayer under the Bad Debt Statute. Ark. Code Ann. § 26-18-406 (Supp. 2003). This case is a suit to compel a refund under a statute that provides for a refund. As DF&A indicates, if Honda is a taxpayer, then suit would be proper. By providing the remedy of a refund under the proper circumstances, the State waived sovereign immunity. There is no merit to DF&A’s argument that sovereign immunity bars this action.
Meaning of “Taxpayer” for the Purposes of the Bad Debt Statute
DF&A asserts that Honda is not a taxpayer under the “Bad Debt Statute.” Section 26-52-309 provides:
(a) In computing the amount of tax due under the Arkansas Gross Receipts Act, § 26-52-101 et seq., and any act supplemental thereto, taxpayers may deduct bad debts from the total amount upon which the tax is calculated for any report. Any deduction taken or refund paid which is attributed to bad debts shall not include interest.
(b) (1) For purposes of this section, “bad debt” means any portion of a debt for an amount which a taxpayer has reported as taxable which the taxpayer legally claims as a bad debt deduction for federal income tax purposes.
(2) Bad debts include, but are not limited to, worthless checks, worthless credit card payments, and uncollectible credit accounts.
(3) Bad debts do not include financing charges or interest, uncollectible amounts on property that remain in the possession of the taxpayer or vendor until the full purchase price is paid, expenses incurred in attempting to collect any debt, debts sold or assigned to third parties for collection, and repossessed property.
(c) Bad debts incurred for sales made prior to November 9, 1983, shall not be deducted.
(d) Bad debts must be deducted within three (3) years of the date of the sale for which the debt was incurred.
(e) If a deduction is taken for a bad debt and the taxpayer subsequently collects the debt in whole or in part, the tax on the amount so collected shall be paid and reported on the next return due after the collection.
While Honda was the ultimate source of the funds used to pay the gross receipt tax due on the motor vehicles, the gross receipt tax was actually paid by the sellers. The sellers were later reimbursed by Honda. However, the party who actually paid the gross receipts tax is not automatically a “taxpayer” for the purposes of the Bad Debt Statute. To be a “taxpayer” for the purposes of the Bad Debt Statute, Honda must be a “person liable to remit a tax hereunder or to make a report for the purpose of claiming any exemption from payment of taxes levied by [the Gross Receipts Act.]” Ark. Code Ann. § 26-52-103(a)(5) (Repl. 1997). We first note that Honda is a “person” under the Bad Debt Statute, as corporations are included within the definition of “person.” See Ark. Code Ann. § 26-52-103(a)(l) (Repl. 1997). While it is clear that Honda was the source of payment of the gross receipts tax to the State, the parties disagree on the issue of whether Honda was liable to remit the tax. “Liable” is not defined for the purposes of the Bad Debt Statute. Black’s Law Dictionary defines “liability,” in part as:
1. The quality or state of being legally obligated or accountable;
2. A financial or pecuniary obligation; Debt < tax liability >
932 (8th ed. 2004).
DF&A contends that for the purposes of the motor vehicle gross receipts tax, the taxpayer, or person liable to remit the tax, is the consumer. Section 26-52-510(a)(l)(A) (Repl. 1997) provides:
The tax levied by this chapter and ail other gross receipts taxes levied by the state in respect to the sale of new or used motor vehicles, trailers, or semitrailers required to be licensed in this state shall be paid by the consumer to the Director of the Department of Finance and Administration instead of being collected by the dealer or seller, and it is the mandatory duty of the director to require the payment of such tax at the time of registration before issuing licenses for new or used motor vehicles or trailers.
(Emphasis added.) DF&A’s argument is well-taken. Clearly, Honda is not liable to remit the tax.
Honda notes that it possesses an Arkansas Sales and Use Tax Permit and pays substantial tax in Arkansas. Because Honda is not required to remit taxes and make reports of those taxes for motor vehicle gross receipts tax and make reports of that tax, then Honda cannot claim that it is a “taxpayer” in the sale of motor vehicles. It is possible to be a taxpayer for one kind of tax, while not a taxpayer for another kind of tax.
DF&A argues that Honda is not a “taxpayer” as defined under § 26-52-103 (a) (5) and, therefore, it is not a taxpayer under DF&A’s Regulation 1994-3.
That regulation provides in part:
Pursuant to authority given the Commission of Revenues by subsection (b) of Section 1 of Act 293 of 1991 (Ark. Code Ann. §§ 27-14-906(b)), after the effective date of this regulation, lienholders and motor vehicle dealers may apply for registration and certificates of title on behalf of the purchasers of new or used vehicles.... The dealer or lienholder shall file the application with the Commissioner, shall attach thereto a copy of the instrument creating and evidencing the hen or encumbrance and shall pay all taxes and fees due for such registration and issuance of a title.
The only party who is liable to pay the motor vehicle gross receipts tax is the consumer. Regulation 1994-3 allows lienholders to pay gross receipts tax on behalf of consumers; however, this allowance does not transfer ultimate liability of payment of the gross receipts tax from the consumer to the lienholder.
Honda further argues that it is a “taxpayer” because it meets the requirements of a “taxpayer” as defined by the Arkansas Tax Procedure Act, which is codified at Ark. Code Ann. § 26-18-101 (Repl. 1997). A “taxpayer” under this Act is defined as follows:
(A) Any person subject to or liable for any state tax;
(B) Any person required to file a return, or to pay, or withhold and remit any tax required by the provisions of any state tax law; or
(C) Any person required to obtain a license or a permit or to keep any records under the provisions of any state tax law; . . .
Ark. Code Ann. § 26-18-104(14) (Repl. 1997).
We need not address the merits of Honda’s argument that it is a “taxpayer” under the Arkansas Tax Procedure Act. The Bad Debt Statute is a part of the Arkansas Gross Receipts Act, and “taxpayer” is specifically defined under that Act, for the purposes of that Act. We have long held that a general statute must yield when there is a specific statute involving particular subject matter. See, e.g., Ozark Gas Pipeline Corp. v. Arkansas Pub. Serv. Comm’n, 342 Ark. 591, 29 S.W.3d 730 (2000); Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).
Assignment
DF&A argues that Honda acquired no rights as a taxpayer by way of assignment of the contracts by the sellers. We agree. As already discussed, under the current statutes, it is only the purchaser that is liable to pay the tax and therefore the taxpayer. The seller was thus not a taxpayer, and Honda could not acquire from the sellers a right they did not have. An assignee can receive no better right than that possessed by the assignor. Guaranty Nat’l. Ins. Co. v. Denver Roller, 313 Ark. 128, 854 S.W.2d 312 (1993).
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Annabelle Clinton Imber, Justice.
Appellant Timothy Edwards was convicted of aggravated robbery and theft of property and sentenced to life imprisonment. Thus, our jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(2) (2004). On appeal, he raises three points of error: (1) there was insufficient evidence to support his convictions; (2) the circuit court erred in failing to suppress evidence seized incident to his arrest; and (3) the circuit court erred in refusing to suppress the photo lineup. Finding no merit in any point raised, we affirm the circuit court.
Beginning in early March 2003, four separate robberies occurred within a ten-day period in southwest Little Rock. On March 9, 2003, the Phillips 66 Station at Scott Plamilton and Baseline Road was robbed. Tabatha Cannon was working at the station when the robbery occurred. She told a detective with the Little Rock Police Department that the robber was a bald, black man wearing a black jacket and black pants. Cannon also described the robber as being about six feet tall and 28 or 29 years old. A video surveillance camera captured this robbery on tape.
The next robbery occurred around 11 p.m. on March 17, 2003, at the Total Station on Geyer Springs Road. Law enforcement officers investigating this robbery learned from Velvet Cowan, a gas station employee, that the robber wore a black leather jacket, a blue skull cap or toboggan, and dirty boots. Shortly thereafter, at approximately 2 a.m. on March 18, 2003, an employee at the Shell Station on Baseline Road reported another robbery. Amar Kassees told law enforcement officers that the robber wore a black leather trench jacket and a midnight blue skull cap or toboggan.
Four hours later, at 6:30 a.m. on March 18, 2003, the fourth robbery occurred at the Super 8 Motel on Frenchman’s Lane. Detective Bill Yeager, as well as other law enforcement officers, arrived at the motel around 7:00 a.m. At that time, he already knew about the other robberies in the same area. One of the motel employees, Terry Yelder, described the clothing worn by the robber as a black trench coat with a blue hooded jacket underneath the coat. Yelder also said that his cell phone had been stolen during the robbery. Another motel employee just happened to dial Yelder’s ceil phone number when some of the officers standing outside the motel saw Greg Dockery, who was walking along Frenchman’s Lane, take a cell phone out of his pocket and answer it. They immediately picked Dockery up and escorted him to his apartment. Dockery told officers that Edwards had been to his apartment earlier that morning and had left the cell phone and a windbreaker there. The officers seized the windbreaker from the apartment. Yelder identified the windbreaker as belonging to the person who robbed him. Based on this information, Edwards became a suspect in the robbery at the Super 8 Motel. Law enforcement officers then began to search for Edwards. Dockery disclosed that he had received a call from Edwards, and the caller ID on his phone indicated the call came from a Super 7 Motel.
Detective Yeager and the other officers proceeded to the Super 7 Motel. The owner, Anil Patel, advised them that Edwards had checked into the motel on March 17, 2003, and had made several phone calls from his room. When officers searched the room, they saw cigar wrappers in a trash can, but did not seize anything at that time. They also learned that Edwards had used the phone at the Super 7 to call his girlfriend, Deborah McCullough. Upon further investigation, the officers learned that Edwards had also called McCullough from a Motel 6 in North Little Rock.
Later that same day, five detectives went to the Motel 6 in North Little Rock. When they knocked on the door to his motel room, Edwards opened the door. He was arrested after being identified as the suspect in the Super 8 Motel robbery. At the time of the arrest, several officers indicated that they observed a black coat, a pair of leather shoes, and a toboggan cap in plain view in the room. Those items were seized immediately. Officers then returned to the Super 7 motel and seized the trash bag containing the cigar wrappers that Edwards had left in the room. Subsequently, Detective Yeager created a photo lineup containing Edwards’s picture. All of the robbery victims identified Edwards in the photo spread as the person who robbed them.
One suppression hearing was held in connection with all four robberies. At the hearing, Detective Yeager testified that Dockery consented to a search of his apartment and Patel allowed officers to search the room that Edwards used at the Super 7 Motel. Patel testified that to his knowledge Edwards had checked out of the room prior to the police arriving. Furthermore, he did not observe any of Edwards’s personal belongings remaining in the room. The circuit court denied all motions to suppress filed by Edwards.
The case arising out of the robbery at the Phillips 66 station was tried on January 7, 2004. The victim, Tabatha Cannon, and several law enforcement officers testified to the events as summa rized above. More significantly, the video surveillance tape and a still photograph were introduced into evidence. Also, over the defendant’s objection, the leather jacket was admitted into evidence. Cannon testified that she was able to select Edwards from the photo lineup created by the police and she identified Edwards at trial as the person who robbed her. The sole witness called on behalf of the defense was the defendant’s aunt, Lorraine Edwards. She testified that her nephew was at her home at the time of the March 9 robbery. At the conclusion of the trial, Edwards was found guilty of aggravated robbery and theft of property.
In his first point on appeal, Edwards challenges the sufficiency of the evidence supporting his convictions of aggravated robbery and theft of property. In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003) (citing Polk v. State, 348 Ark. 446, 73 S.W.3d 609 (2002)). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. We view the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id.
The elements that the State must prove in order to convict a person of aggravated robbery are set forth in Ark. Code Ann. §§ 5-12-102 — 103 (2004). Section 5-12-102 states:
(a) person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
(b) Robbery is a Class B felony.
Ark. Code Ann. § 5-12-102. Section 5-12-103 further states:
(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:
(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or
(2) Inflicts or attempts to inflict death or serious physical injury upon another person.
(b) Aggravated robbery is a Class Y felony.
Ark. Code Ann. § 5-12-103. As to the proof required on the theft-of-property charge, Ark. Code Ann. § 5-36-103 provides in relevant part as follows:
(a) A person commits theft of property if he or she:
(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.
Ark. Code Ann. § 5-36-103 (2004).
In addition to the facts summarized earlier, Cannon testified at trial that she was alone when Edwards came into the Phillips 66 store. She noticed him at the freezer section while Cannon was with another customer. Edwards hollered out to ask if the store had any juice. Cannon responded that she would come help him look for juice when she finished with the other customer. Later, when she asked him if he had found the juice, Edwards did not reply. Cannon began to feel nervous. She testified that Edwards came up to the counter and said something like “give me the money.” Cannon said, “What?”, whereupon Edwards said, “Open it. Open it now.” Because Cannon had already rung the purchase up, she struggled to open the register. Eventually she got the register open and started handing him the money. He asked for the rest of the money, so she handed him the next shift’s cash too. Edwards told her to get down on the floor. She complied, hit the panic button, and then waited a few minutes before calling 911.
Cannon testified she was able to observe Edwards for a total of five minutes. He was wearing a black jacket and black pants. He was not wearing anything over his eyes. She could see part of his nose, his eyes, his eyebrows and his whole head. He approached her and pointed his jacket at her insinuating that he had a gun. His hand was in his pocket. At one point, he was approximately 18 inches away from her. In sum, Cannon identified Edwards as the person who robbed her. Additionally, from a review of the surveillance tape and a still photograph, Cannon and Detective Yeager were both able to identify Edwards as the person on the video. Based on these facts, we have no hesitancy in holding that the evidence was sufficient to sustain both convictions.
Edwards also cites Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980), in support of his argument that there is insufficient evidence to support the aggravated-robbery conviction when there was no evidence that Edwards had a weapon. The Fairchild case is, however, inapposite. In that case, we stated that
[w]e are not persuaded that appellant’s hand under his shirt, even with the admitted intention of conveying to the victim that he was armed, is sufficient representation to satisfy the requirements of aggravated robbery in the absence of the victim’s appreciation that he was armed. It is clear from Mrs. Calva’s testimony that she did not attach any special significance to this conduct and certainly did not perceive it to be in any way threatening.
Fairchild v. State, 269 Ark. at 275, 600 S.W.2d at 17 (emphasis added). Clearly, a representation through words or conduct indicating a person is armed is sufficient to satisfy the weapon requirement under our aggravated-robbery statute. Ark. Code Ann. § 5-12-103. Furthermore, unlike the victim in Fairchild v. State, Cannon testified that she was fearful and believed Edwards was armed based on his conduct. We therefore conclude that the argument on this point is without merit.
For his second point on appeal, Edwards argues that the circuit court erred in failing to suppress evidence seized incident to his arrest. Specifically, he challenges the searches at the apartment, the Super 7 Motel, and the Super 6 Motel on grounds that the police did not have a search warrant. The only item introduced into evidence at trial was a leather jacket that had been seized at the Super 6 motel. Nonetheless, Edwards contends that the other searches are important because the evidence collected at the those locations were used to develop Edwards as a suspect. Absent the first two illegal searches, Edwards suggests there would have been less evidence tying him to the robberies. Our standard of review for a circuit court’s action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the circuit judge. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003) (citing State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978)).
First, Edwards does not have standing to assert his Fourth Amendment rights in connection with the search at the apartment. As the State properly indicates in its brief, Fourth Amendment rights are personal rights which may not be vicariously asserted. Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). Whether an appellant has standing depends on whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize that expectation as reasonable. Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993).
In this case, the property manager for the apartment complex testified that the apartment was leased to Mohamed Bangura. Edwards was not a leaseholder on the apartment, and no additional evidence was presented to show that Edwards had any type of interest in the apartment. Accordingly, it is reasonable to conclude that he had no expectation of privacy in a third party’s apartment. Thus, the circuit court did not err when it denied the motion to suppress as to the items seized in the apartment.
Similarly, Edwards does not have standing to assert his Fourth Amendment rights in connection with the search of the Super 7 Motel. He had clearly abandoned the motel room when police officers entered the premises. In Rockett v. State, we addressed a similar issue where the appellant’s name was on the motel registration card. Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), overruled on other grounds by MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). In that case, we said that while it is well settled that one registered at a motel or hotel as a guest is protected against unreasonable searches and seizures by the Fourth Amendment to the United States Constitution, the appellant no longer had a reasonable expectation of privacy in the motel room as he abandoned the room at the time he fled from the police. Id. Likewise, in this case, the motel manager testified at the suppression hearing that he believed Edwards had checked out of the room by the time police arrived. He also testified that Edwards had already previously returned the room key. Moreover, there was additional evidence presented that Edwards had in fact abandoned the room because none of his personal items were in the room when the police arrived at the motel. Based on the totality of the circumstances, it was reasonable for the circuit court to conclude that Edwards had in fact abandoned his expectation of privacy in the room.
Lastly, the police seized certain items at the Motel 6 when they arrested Edwards. Rule 4.1 of the Arkansas Rules of Criminal Procedure gives police the power to arrest persons without a warrant. It states in part:
(a) A law enforcement officer may arrest a person without a warrant if:
(I) the officer has reasonable cause to believe that such person has committed a felony.
Ark. R. Crim. P. 4.1(a)(i) (2004). In addition, Rules 12.1 and 12.2 provide officers who are making a lawful arrest with the authority to conduct a limited search. Rule 12.1 specifically states:
An officer who is making a lawful arrest may, without a search warrant, conduct a search of the person or property of the accused for the following purposes only:
(a) to protect the officer, the accused, or others;
(b) to prevent the escape of the accused;
(c) to furnish appropriate custodial care if the accused is jailed; or
(d) to obtain evidence of the commission of the offense for which the accused has been arrested or to seize contraband, the fruits of crime, or other things criminally possessed or used in conjunction with the offense.
Ark. R. Crim. P. 12.1 (2004)(emphasis added). Rule 12.2 further provides that
[a]n officer making an arrest and the authorized officials at the police station or other place of detention to which the accused is brought may conduct a search of the accused’s garments and personal effects ready to hand, the surface of his body, and the area within his immediate control.
Ark. R. Crim. P. 12.2 (2004). In applying these mies, we have consistently held that searches within this lawful scope do not violate an individual’s Fourth Amendment rights. Hazelwood v. State, 328 Ark. 602, 945 S.W.2d 365 (1997).
Here, the police had identified Edwards as a suspect in the robbery that occurred at the Super 8 Motel on March 18, 2003, in which Yelder was the victim. They had recovered Yelder’s cell phone and Yelder identified the windbreaker that the robber was wearing. These items were connected to Edwards through Dockery. Finally, information obtained from Edwards’s girlfriend led officers to Motel 6 where he was arrested. Based on these facts, we conclude that the officers had reasonable cause to believe that Edwards had committed a felony. Therefore, pursuant to Ark. R. Crim. P. 4.1(a), they had authority to arrest him without a warrant. Furthermore, after the arrest and pursuant to Rules 12.1(d) and 12.2, it was legal for the officers to seize the leather jacket, which was in “plain view” and was evidence that Edwards had committed a robbery. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998) (police officers legitimately at a location and acting without a search warrant may seize an object in plain view if they have probable cause to believe that the object is either evidence of a crime, fruit of the crime, or an instrumentality of a crime, citing Arizona v. Hicks, 480 U.S. 321 (1987)); Hazelwood v. State, supra. We affirm the circuit court’s denial of the motion to suppress evidence seized incident to the defendant’s arrest.
For his final point on appeal, Edwards argues that the circuit court erred in refusing to suppress the photo lineup. This argument is procedurally barred. In Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003), as in this case, the appellant filed a motion prior to trial requesting that the out-of-court photo identifications made by the witnesses be suppressed. The trial court denied the motion. At trial, however, the appellant did not object to the in-court iden tifications made by the witnesses. The appellant’s failure to object to the in-court identification barred our review because an out-of-court identification based on a photo array is not preserved for review where, despite challenging the photo identification prior to trial, the appellant failed to object to the witness’s in-court identification. See Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002); Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). To preserve a challenge to a pretrial photographic identification, we require a contemporaneous objection to an in-court identification at trial. Fields v. State, supra.
In the instant case, Edwards did not object at trial to Cannon’s in-court identification of him as the person who robbed her. Thus, even though Edwards objected at trial to the introduction of the victim’s pretrial photographic identification, because there was no objection to her in-court identification, the argument that the court erred in failing to suppress the out-of-court photo identification is not preserved for our review. Lewis v. State, supra.
In compliance with Ark. Sup. Ct. R. 4-3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely Edwards, and no prejudicial error has been found. Doss v. State, 351 Ark. 667, 97 S.W.3d 413 (2003).
Affirmed.
We must first consider Edwards’s argument that there was insufficient evidence to convict him because double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence prior to the other issues on appeal. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (citing Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001)).
These rules reflect the U.S. Supreme Court’s decisions in Chimel v. California, 395 U.S. 752 (1969) and U.S. v. Robinson, 414 U.S. 218 (1973). | [
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PER CURIAM
hln 1981, appellant Dennis Ray Matthews entered a plea of guilty to capital felony murder for which the underlying felony was aggravated robbery. He was sentenced to life imprisonment without parole. The judgment was entered on January 5, 1982. On June 4, 2016, Matthews filed in the trial court a pro se petition for writ of error coram nobis. The trial court declined to issue the writ, and Matthews brings this appeal.
The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Newman v. State, 2014 Ark. 7, 2014 WL 197789. An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. The trial court’s findings of fact, on which it bases its decision to grant or deny the petition for writ of error coram nobis, will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Newman, 2014 Ark. 7, 2014 WL 197789. There is no abuse of discretion ⅛ the denial of error-coram-nobis relief when the claims in the petition were groundless. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in "one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. These categories, however, are not absolute and may be expanded when there is a showing of a procedural gap whereby a petitioner in a particular case would be denied due process of law if a coram-nobis proceeding were not allowed to fill the void. See Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716. Error-coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Nelson, 2014 Ark. 91, at 3, 431 S.W.3d 852, 854.
In his petition, Matthews stated the following two grounds for issuance of the writ: (1) he was mentally incompetent and awaiting a mental evaluation at the time he was |,enforced” to enter his plea and was incapable of understanding the ramifications of a guilty plea; (2) he was coerced and tlmeatened into changing his plea of not guilty by reason of mental disease to a plea of guilty. Matthews did not support the claims in his petition with any facts or provide any substantiation or elucidation of the allegations, and he offered no explanation of how the claims would warrant issuance of a writ of error coram nobis. In his brief-in-chief and his reply brief, Matthews expands on his bare claims and provides information that was not contained in the petition that the trial court ruled on.
First, this court will not consider the new material contained in the briefs. We do not address new arguments raised for the first time on appeal or consider factual substantiation added to bolster the allegations made below. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). When reviewing the trial court’s ruling on a coram-nobis petition on appeal, the appellant is limited to the scope and nature of the arguments that he or she made below that were considered by the trial court in rendering its ruling. Johnson v. State, 2014 Ark. 526, at 3, 452 S.W.3d 87, 89, reh’g denied (Feb. 12, 2015). Also, to the extent that Matthews did not argue in his brief a claim made below, allegations raised in the trial court, but not argued on appeal, are considered abandoned. See Johnson, 2014 Ark. 526, 452 S.W.3d 87; see also Schrader v. State, 2014 Ark. 379, 441 S.W.3d 1 (per curiam).
Matthews appended to his co-ram-nobis petition an affidavit in which he argued that his attorney when he entered his plea in 1981 did not competently represent him. The trial court ruled that the allegations raised in the coram-nobis petition, while couched as claims for issuance of the writ, were actually allegations of ineffective assistance of counsel and thus did not state a ground for the writ. We agree. This court has held that claims of ineffective 14assistance of counsel are not cognizable in a coram-nobis proceeding. State v. Tejeda-Acosta, 2013 Ark. 217, 427 S.W.3d 673. Such claims are properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1. A petition for writ of error coram nobis is not a substitute for proceeding under Rule 37.1. Id. This holds true even when the deadline for filing Rule 37 relief has passed, as fundamental fairness and due process do not require an unlimited opportunity to proceed under Rule 37.1. Nelson, 2014 Ark. 91, at 6, 431 S.W.3d 852, 856.
Next, the claims raised by Matthews in his petition asserting that he was not mentally competent when he entered his plea in 1981 were devoid of facts to substantiate the claims. The application for coram-nobis relief must make a full disclosure of specific facts relied oh as the basis for the writ. Markus v. State, 2015 Ark. 228, at 4, 463 S.W.3d 675, 677 (per curiam); see also Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997); Because Matthews failed to assert facts in support of the allegations- contained in the coram-nobis petition that established a ground for the writ, he did not meet his burden of showing that the trial court should issue the writ. Wright v. State, 2015 Ark. 83, 456 S.W.3d 371 (per curiam).
With respect to Matthews’s con-clusory statement that he was “coerced and threatened” into pleading guilty, coercion is, as stated, one of the grounds on which the writ may issue, but there was no claim that Matthews’s plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as grounds for a finding of coércion. Oliver v. State, 2016 Ark. 78, 483 S.W.3d 298 (per curiam). His allegations did not rise to the level of coercion, which we have held is a compulsion of a free agent by | ¿physical, moral, or economic force or threat of physical force. See White v. State, 2015 Ark. 151, at 5, 460 S.W.3d 285, 288.
Moreover, there was no fact in Matthews’s petition with respect to either his claims of coercion or his impaired mental state that he could not have brought out at the time of trial to demonstrate that he was coerced into pleading guilty or that he was not sane. Matthews failed to show that there existed some fact—coercion or incompetence at the time of the guilty plea— that would have prevented rendition of the judgment had it been known to the trial court and that, through no negligence or fault of his, was not brought forward before rendition of judgment. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. By entering a plea, Matthews elected to abandon the competency issue, and he waived any claim that he was not guilty of the charges. Oliver, 2016 Ark. 78, at 4, 483 S.W.3d 298, 301; see also Beverage v. State, 2015 Ark. 112, at 7, 458 S.W.3d 243, 248.
• Finally, Matthews filed his co-ram-nobis petition thirty-five years after he had entered his plea of. guilty. Although there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief. Newman, 2009 Ark. 539, 354 S.W.3d 61. Due diligence requires that the defendant be unaware of the fact at the time of the trial, that the defendant could not have, in, the exercise of due diligence, presented the fact at trial, and that the defendant, after discovering the.fact, did not delay bringing the petition. Id. In the absence of a valid excuse for delay, the petition will be denied, and the burden is on the petitioner to establish ■ that he or she acted with due diligence. Grant v. State, 2016 Ark. 82, at 6, 484 S.W.3d 272, 277 (per curiam). Even though an assertion of mental incompetence at the time of trial is a recognized, ground for 16the writ, merely referring to incompetence as a ground for the writ without stating facts to support the claim does not constitute a showing that the petitioner has met the burden of proceeding with diligence. Matthews’s con-clusory statements did not establish that he was diligent in filing his petition.
Because Matthews’s petition for writ of error coram nobis did not state a ground to warrant issuance of the writ and he was not. diligent in bringing the petition, the trial court did not abuse its discretion in denying the petition. See White, 2015 Ark. 151, 460 S.W.3d 285. Accordingly, we affirm the order.
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CLIFF HOOFMAN, Judge
hAppellant Henry Williams appeals after he was convicted by a Pulaski County Circuit Court jury of first-degree battery in connection with the shooting of Jacent Winston. On appeal, appellant contends that'(l) the trial court abused its discretion when it allowed prior bad-acts evidence that was not independently relevant and was unduly prejudicial and (2) the trial court abused its discretion when it denied appellant’s motion for a mistrial. This appeal returns to our court after we ordered appellant to provide a supplemental addendum to include the jury-verdict forms. See Williams v. State, 2016 Ark. App. 261, 2016 WL 2858524; We hold- that the trial court abused its discretion in its evidentia-ry ruling and reverse and remand on that basis.
Appellant was charged by information with battery in the first degree, possession of 12firearms by certain persons, a firearm enhancement, and a .child enhancement. Prior to trial, appellant filed a motion in limine to exclude any references to a separate alleged criminal incident that was used by law enforcement in developing him as a suspect. At the pretrial hearing, Detective Jarrod McCauley testified that he investigated the shooting of Jacent Winston that occurred on February 22, 2014. He explained that appellant was developed as ■ a suspect after law enforcement received a separate call from appellant’s alleged ex-girlfriend, Cassandra Thomas, stating that appellant had assaulted her. Thomas’s description of appellant and his clothing matched the description of the alleged shooter, and the alleged assault occurred approximately a block away from the shooting and was reported only minutes later. After appellant’s counsel argued that evidence regarding his alleged assault of Thomas should be excluded under Arkansas Rule of Evidence 404(b) and because the probative value was outweighed by the danger of undue prejudice, the trial court stated that it would “consider it” and that “I don’t understand how I could keep that out[.]”
Defense counsel renewed his motion immediately prior to trial, and the trial court stated that it would stand by its prior ruling. During opening statements, defense counsel objected again that this separately reported crime was not admissible. The State responded that this information was relevant on the issue of how appellant was developed as a suspect. The trial court overruled the objection.
At the jury trial, Jacent Winston testified that appellant approached him while he was |swashing his truck in front of his home. His girlfriend and several children were at the home celebrating one child’s birthday. Winston stated that appellant pointed a gun at him and told him to “get broke.” Winston explained that he slapped the gun away and ran between his truck and the boat in his yard. Appellant shot Winston in the legs. Winston said that appellant tried to shoot him in the head but that appellant’s gun either jammed or was out of bullets. The children ran toward Winston, who was on the ground, and appellant proceeded to walk away from the scene. Winston had identified appellant in a- photographic lineup presented to him prior to trial, and Winston reaffirmed in open court that appellant was the man who shot him.
Lenya Harmon, Winston’s neighbor, and Mary Holmes, Winston’s girlfriend, both testified that they heard the gunshots. Harmon said that she ran outside after she heard the shots, saw Winston on the ground, and called 911; she observed a bald, light-skinned person wearing all red walking away from the scene. Holmes testified that she ran to a window from inside Winston’s home after she heard multiple gunshots and saw appellant pointing a gun toward the ground. The State asked Holmes to describe what the man was wearing, to which she replied, “He looked like a gangster. He had on all red.” Defense counsel objected and moved for a mistrial based on her description of the assailant as a gangster. The trial court denied the motion for mistrial but instructed the jury to disregard the statement.
Detective McCauley testified at trial that he spoke with the victim after responding to the scene and that Winston described the shooter as a light-skinned black male with a shaved head, wearing all red. McCauley stated that he made contact with Cassandra Thomas, which 14drew a hearsay and relevancy objection. The State responded that this was not to prove the truth of the matter but to show how appellant became a suspect. After the trial court overruled the objection, McCauley continued his testimony:
Yes, I responded to 700 West Markham to our police headquarters. I made contact with a Cassandra Thomas. She advised me that she had just been in an altercation with her boyfriend, a Henry Williams, Jr. Ms. Thomas stated that she had been assaulted at the address of 3319 Short Springs in Little Rock, Arkansas. She had multiple injuries to her face, split lip, things of that nature. She had stated that during the altercation, her boyfriend or ex-boyfriend had choked her around the neck and threatened her and also had—
Defense counsel approached the bench for another objection, stating, ‘Your Honor, we think this is—this is far afield. It’s 404(b). It’s an act that has nothing to do with this incident.” The prosecutor offered to “skip over the details,” but defense counsel stated that it was too late and that the State had “already got into the fact that she was supposedly bruised and all those sorts of things, and this is a battery case.” The trial court ruled that it would allow what had been said but that the State should move on with its questions.
Detective McCauley indicated that Thomas provided a description of appellant that matched the description provided by Winston, and there was close proximity in time and space between these incidents. Therefore, Detective McCauley developed appellant as his suspect. McCauley created a photo lineup, and Winston identified appellant as the shooter.
Appellant testified at trial, and his version of events vastly contradicted that of Winston’s version. Appellant did not deny that he spoke with Winston that day. However, he denied that he took out a gun and threatened Winston. Appellant testified that Winston initiated a conversation with him about someone trying to steal Winston’s boat motor. ^Appellant further testified that Winston pulled out a gun, that he tried to grab it away, and that the gun discharged as they “tussled for the gun.” He also denied knowing Thomas or that she was ever his girlfriend.
After renewals and denials of prior defense motions, the jury was instructed on the law and refeed to deliberate. The jury found appellant guilty of battery in the first degree. This timely appeal followed.
Appellant first argues that the trial court abused its discretion when it allowed prior bad-acts evidence that was not independently relevant and that was unduly prejudicial. Appellant specifically argues that Detective McCauley’s testimony regarding the information that he obtained from Thomas was hearsay and that it was immaterial how appellant was developed as a suspect. Furthermore, he argues that the testimony that he had “choked his girlfriend, caused several injuries to her face, threatened her[,] and split her lip” mandates reversal under Arkansas Rules of Evidence 404(b) and 403 because the evidence was introduced to show that he was a bad person, was irrelevant, and was unfairly prejudicial.
A decision to admit or exclude evidence is within the sound discretion of the circuit court. Rounsaville v. State, 374 Ark. 356, 288 S.W.3d 213 (2008). Evidence offered by the State in a criminal trial is likely to be prejudicial to the defendant to some degree, otherwise it would not be offered. Id. Nevertheless, the evidence should not be excluded under Rule 403 unless the defendant can show that the evidence lacks probative value in view of the risk of unfair prejudice. Decay v. State, 2009 Ark. 566, at 9, 352 S.W.3d 319, 327.
We disagree with appellant that this testimony constituted inadmissible hearsay. An | (¡out-of-court statement is not hearsay if it is offered to show the basis of action. Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994). Here, Detective McCau-ley’s testimony was admissible to the extent that it explained what prompted his investigation of appellant, given the timing and proximity to this crime as well as the matching physical description of the perpetrator. McCauley’s testimony was not for the truth of those matters asserted.
We now turn to appellant’s Rules 404(b) and 403 arguments. Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, even if evidence is relevant under Rule- 404(b), Arkansas Rule of Evidence 403 provides that “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The State is not entitled to introduce evidence of other offenses to persuade the jury that the accused is a criminal and likely to commit the crimes he has been charged with. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Specifically, proof of other crimes is never admitted when its only relevancy is to show that appellant is a man of bad character and addicted to crime. Id. In dealing with issues relating to the admission of evidence pursuant to Rule 404(b), a trial court’s ruling is entitled to great, weight, and this court will not reverse absent an abuse of discretion. Id.
Here, Detective McCauley’s, testimony that Thomas reported that appellant was 17involved in an altercation with her in the near vicinity of the shooting and that appellant matched the description of the alleged shooter was independently relevant to prove opportunity and identity and was thus admissible under 404(b). The trial court did not abuse its discretion in its preliminary ruling that this particular evidence would be admissible. However, appellant properly objected at trial to the specifics of the altercation, which included Detective McCauley’s. testimony that Thomas also reported that appellant had choked her, caused several injuries to her face, threatened her, and split her lip. Appellant argues on appeal as he did before the trial court that this evidence went too far, was prejudicial, and was introduced to show that he was a bad person. We agree. The specifics of Thomas’s injuries had little to no probative value in proving appellant committed first-degree battery in a separate incident, and it certainly was substantially outweighed by the danger of unfair prejudice. See Green, supra. Accordingly, we hold that the trial court abused its discretion in allowing the State to introduce evidence regarding Thomas’s detailed allegations because this was unfairly, prejudicial.
Even if a trial court errs in admitting evidence, when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm the conviction. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264; Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). It cannot be said that evidence is overwhelming when this case turned solely on the credibility of the victim versus the defendant. Compare Austin v. State, 2016 Ark. App. 194, 488 S.W.3d 555. The only witnesses as to who initially had the gun and how it was discharged were the victim and appellant, and each presented a very different Inversion of events. We cannot conclude that the detailed evidence regarding appellant’s alleged attack on Thomas had no influence on the jury’s determination of who was telling the truth in this first-degree battery case. Because credibility was critical to the jury’s resolution of the conflicting stories, we reverse and remand for a new trial. See Purdie v. State, 2010 Ark. App. 658, 379 S.W.3d 541.
Appellant next argues that the trial court abused its discretion when it denied appellant’s motion for a mistrial. Appellant specifically argues that Holmes’s testimony that appellant “looked like a gangster” was not cured by the trial court’s instruction to the jury to disregard the remark. Because this issue is not likely to arise on retrial, we do not address this argument. Brooks v. State, 2014 Ark. App. 84, 2014 WL 580144.
Appellant’s conviction is reversed and remanded for a new trial.
Reversed and remanded.
Glover and Hixson, JJ., agree.
. The. possession-of*firearms-by-certain-persons charge was subsequently nolle pressed. | [
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Robert L. Brown, Justice.
Appellant Roger Schubert appeals from the circuit court’s order granting summary judgment in favor of appellee Target Stores, Inc. (Target). Schubert argues the following points on appeal: (1) the circuit court erred in concluding that Arkansas’ conflicts-of-law rules require application of the substantive law of the state of Louisiana to this case; and (2) the circuit court erred in its application of Louisiana law. We reverse and remand on the first point.
Schubert is a resident of Enid, Oklahoma, and was employed by J.B. Hunt Transport, Inc. (Hunt), as a tractor-trailer driver. Hunt is a business corporation with its principal offices in Lowell, Arkansas. Target is a foreign corporation with its principal place of business outside of Arkansas, but it is authorized to do business in Arkansas. Target owns and operates a distribution center in Maumelle.
On April 1, 1998, Target entered into a transportation contract with Hunt wherein Hunt agreed to transport material for Target. Under the contract, Hunt was required to provide workers’ compensation coverage for the benefit of both Target and Hunt in the event of an injury to one of Hunt’s employees.
On February 19, 1999, Schubert was dispatched to hook up a sealed trailer that was loaded with bales of cardboard boxes by Target’s employees at its distribution center in Maumelle. Schubert then transported the load to an International Paper facility in Mansfield, Louisiana, for recycling. Once there, Schubert opened the trailer doors, and a 1000 pound bale of cardboard fell from the trailer and hit Schubert, thereby injuring him.
Schubert subsequently filed a workers’ compensation claim against Hunt in Oklahoma and was awarded $46,476.30 in benefits minus attorney’s fees and minus a credit in favor of Hunt. Thereafter, Schubert filed a complaint in Arkansas in Pulaski County Circuit Court against Target and alleged that Target’s employees were negligent in loading the bales of cardboard into the trailer and inspecting the same. Schubert sought damages in excess of $50,000. Target next filed a motion for summary judgment and argued that Louisiana law should apply as the place of the accident and that Schubert’s receipt of workers’ compensation benefits was his exclusive remedy against Target under Louisiana law. According to Target, it was the statutory employer of Schubert under Louisiana’s workers’ compensation law, and as such, Schubert’s claim was barred by Louisiana’s exclusive-remedy doctrine.
Target attached an affidavit to its summary-judgment motion from Rodney Schluterman, the facility operations group leader at the Target distribution center in Maumelle, who averred that the distribution center in its course of business receives cardboard boxes from various manufacturers containing products that are then removed and placed in separate packaging. Schluterman further averred that the empty cardboard boxes have to be discarded. Accordingly, Target compacts the boxes into bales bound with wire that are then loaded by forklift into trailers that take the bales to various locations where the cardboard is recycled. Schluterman further asserted that the receiving, compacting, handling, loading, and shipping of cardboard boxes is an integral part of Target’s business and is essential to the ability of Target to generate its products and service.
The circuit court held a hearing on the summary-judgment motion and then entered its order. In that order, the circuit court concluded that Louisiana law should apply after “consideration of a mixture of the five choice-influencing factors set forth in Wallis v. Mrs. Smith’s Pie Company, 261 Ark. 622, 550 S.W.2d 453 (1977) [,] as well as other Arkansas precedent considering the lex loci delicti approach.” The order further stated:
7. Under Louisiana Law, a principal which is a statutory employer of the plaintiff is immune from tort liability. A principal becomes a statutory employer when “there is a written contract between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer.” See La. R. S. 23:1061 [(A)](3). Whether a principal is a statutory employer for workers’ compensation purposes is a question of law for the court to decide. See Maddox v. Superior Steel, 814 So.2d 569, 572 (La. Ct. App. 1st Cir., 2001).
8. The Court finds that the contract between Target andJ.B. Hunt recognizes Target as plaintiff’s statutory employer for purposes of worker’s compensation law. Specifically, the contract requires that J.B. Hunt retain worker’s compensation insurance with Target as an insured under that policy. Since Target andJ.B. Hunt contracted that Target was to be insured by workers’ compensation insurance, then the parties intended that Target be protected by the exclusive remedy doctrine. That protection is the essence of being a “statutory employer.”
9. This statutory employer status can be overcome only if the plaintiff can establish “that the work is not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products or services.” Id. at 23:1061 [(A)](3).
10. The Court finds that Target’s acquiring, storing and shipping of cardboard bales is an integral part or essential to the ability of Target to generate its goods, products or services.
The circuit court found that Target was a statutory employer and that Schubert’s claim was barred by the exclusive-remedy doctrine.
Schubert first argues that the circuit court erred in applying Louisiana law to this case, because while stating in its order that it considered the choice-influencing factors set out in Wallis v. Mrs. Smith's Pie Co., supra, the circuit court’s ruling at the hearing showed that the court only considered the lex loci delicti choice-of-law rule to apply Louisiana law. This strict application was error, Schubert contends, because this court held in Wallis v. Mrs. Smith’s Pie Co., supra, that the five choice-influencing factors are to be used in conjunction with lex loci delicti, when deciding whether to apply the forum state’s substantive law or another state’s substantive law. Schubert next analyzes each of the five choice-of-law factors and concludes that this case had significant contacts with the state of Arkansas and that the better rule of law was found in Arkansas, not Louisiana.
Target responds that the circuit court correctly applied Louisiana substantive law under the doctrine of lex loci delicti, because this doctrine controls in tort cases and is not overcome unless application of choice-influencing factors demonstrates a compelling reason to decide a case otherwise. Target concludes that in this case, the choice-influencing factors do not override lex loci delicti. Target also examines the five Wallis factors and notes that Schubert forum-shopped by filing suit in Arkansas, because Arkansas has a three-year statute of limitations on tort claims, whereas Louisiana only has a one-year statute of limitations and Oklahoma has a two-year statute of limitations. Target urges that lex loci delicti, the five Wallis factors, and the suggestion of forum shopping militate in favor of an affirmance in this case. We disagree.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law.
. . . Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties.
Dodson v. Taylor, 346 Ark. 443, 447, 57 S.W.3d 710, 713 (2001) (internal citations omitted).
Three Arkansas cases appear particularly pertinent in deciding which state’s substantive law should be applied in this case. See Gomez v. ITT Educ. Servs., Inc., 348 Ark. 69, 71 S.W.3d 542 (2002); Wallis v. Mrs. Smith’s Pie Co., supra; McGinty v. Ballentine, 241 Ark. 533, 408 S.W.2d 891 (1966). In McGinty v. Ballentine, supra, this court followed the lex loci delicti choice-of-law rule and held that a victim’s family could not file a wrongful-death claim in Arkansas (1) when the accident occurred in Missouri, (2) the victim did not reside in Arkansas, (3) the administratrix of the victim’s estate was not appointed by an Arkansas court, and (4) the appellee-defendant only had a place of business in Arkansas. In McGinty, this court intimated that while Arkansas’ wrongful-death statute of limitations is more favorable to the administratrix, she should not be permitted to forum shop for a state where the law was most favorable to her cause, especially when the case’s connection with Arkansas was so minimal.
In Wallis v. Mrs. Smith’s Pie Co., supra, we observed that the doctrine of lex loci delicti had fallen under much criticism and looked to five new factors in our analysis. In that case, Jeff Wallis and his mother, both residents of Arkansas, were returning to Arkansas from a trip to Ohio, when their vehicle was struck by a tractor-trailer truck in Missouri driven by Howard Long, a resident of Pennsylvania. Long was an agent of Mrs. Smith’s Pie Co., which is a Pennsylvania company authorized to do business in Arkansas. Wallis and his mother each brought an action against Mrs. Smith’s Pie Co. in Arkansas. At trial, the circuit court applied Missouri’s law of contributory negligence as the law of the place of the accident, and the jury returned verdicts in favor of the defendant and against both Wallis and his mother.
On appeal, this court considered Dr. Robert A. Leflar’s five choice-influencing factors, which include (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. Focusing on the governmental-interest factor, this court found that the circuit court should have applied Arkansas’ comparative-fault statutes in lieu of Missouri’s contributory-negligence law, irrespective of the fact that the accident occurred in Missouri. The clear implication was that this was the better rule of law.
In Gomez v. ITT Educ. Servs., Inc., supra, this court affirmed the circuit court’s application of Texas’ two-year wrongful-death statute of limitations rather than Arkansas’ three-year wrongful-death statute of limitations. In Gomez, a woman had been murdered in Texas by a recruiter employed by the appellee-defendant. The victim’s family sued for wrongful death in Texas but failed to serve the correct defendant company within the two-year statute of limitations. Thereafter, the victim’s family filed a wrongful-death action in Arkansas within Arkansas’ three-year statute of limitations. The circuit court granted summary judgment to the defendant company after applying Texas’ statute of limitations. On appeal, this court looked to both the five choice-influencing factors set out in Wallis v. Mrs. Smith’s Pie Co., supra, and the doctrine of lex loci delicti and found that Arkansas did not have a significant relationship to the parties or to the injury, because every relevant action took place in Texas and every party was a resident of Texas. We analyzed the case, using the five factors, however, and said:
In Schlemmer v. Fireman’s Fund Ins. Co., 292 Ark. 344, 730 S.W.2d 217 (1987), this court noted that it had adopted the Leflar choice-influencing approach in Wallis and had continued to use the approach. However, neither Schlemmer nor Wallis explicitly overruled McGinty and the other earlier cases applying the more mechanical lex loci delicti rule. Nor do we find it necessary to overrule McGinty and its progeny here. Instead, the adoption of the Leflar factors in Wallis and subsequent cases appears to be merely a softening of what previously had been a rigid formulaic application of the former rule of law.
This conclusion is consistent with Leflar’s commentary on the issue.
Gomez, 348 Ark. at 76, 71 S.W.3d at 546 (internal citation omitted).
In the case at bar, after hearing arguments of counsel regarding summary judgment and after reviewing the briefs submitted, the circuit court granted Target summary judgment. The court reasoned that lex loci delicti was the prevalent choice-of-law rule, and it applied Louisiana’s workers’ compensation law, which barred Schubert’s complaint. The ensuing circuit court’s order states that the circuit court made its finding in favor of applying Louisiana law after considering lex loci delicti and the choice-influencing factors from Wallis v. Mrs. Smith’s Pie Co., supra.
In McGinty, Wallis, and Gomez, this court began its analysis with a consideration of whether the case had any significant contacts with Arkansas. In the case at bar, Schubert is a resident of Oklahoma, and Target is not an Arkansas corporation but owns and operates a distribution center in Arkansas. However, Hunt is an Arkansas corporation, and the transportation of the cardboard bales began in Arkansas. Moreover, the cardboard bales were allegedly loaded in a negligent manner in Arkansas. Even though the accident occurred in Louisiana, we conclude that Arkansas has significant contacts with this case in light of the fact that the potential site of the negligence was where the bales were loaded, which was Arkansas, and Hunt’s primary place of business is in this state.
It is clear to this court that we have evolved from a mechanical application of the law of the state where an accident occurred, as witnessed by our opinions in both the Wallis and Gomez cases. As we said in Gomez, this court adopted the choice-influencing factors in Wallis to soften the formulaic application of lex loci delicti. We turn then to an analysis of the five factors endorsed in both those cases.
The first factor is the predictability of results. The consideration here is the ideal that a decision following litigation on a given set of facts should be the same regardless of where the litigation occurs in order to prevent forum shopping. In the case at bar, Louisiana’s workers’ compensation law under La. R. S. 23:1061 (A) could bar Schubert’s recovery under the statutory-employer theory and the exclusive-remedy doctrine. Arkansas’ workers’ compensation law, on the other hand, provides in Ark. Code Ann. § ll-9-105(b)(l) (Repl. 2002), that an injured employee who does not receive the necessary benefits may file a workers’ compensation claim or file a complaint in circuit court. Thus, it appears that resolution of this case depends on which state’s law applies.
The second consideration, maintenance of interstate and international order, is not a great concern for purposes of this case. Residents of Louisiana will not likely engage in negligent conduct in Arkansas to avail themselves of our workers’ compensation statutes, and residents of Arkansas will not likely engage in negligent conduct in Louisiana to avail themselves of Louisiana’s workers’ compensation statutes.
The third consideration, simplification of the judicial task, also is not a paramount consideration, because the law at issue does not exist for the convenience of the court that administers it, but for society and its members. In Gomez, this court followed Dr. Leflar’s reasoning that where the out-of-state law is outcome-determinative and easy to apply, there is no good reason not to consider importing it as the law governing the case. In the case at hand, the Louisiana workers’ compensation law is easy to apply and is outcome-determinative, because it appears to bar the case. The Arkansas workers’ compensation law is also easy to apply and appears to allow a court suit. This factor does not appear to favor either party.
Looking to the fourth consideration, advancement of the forum’s governmental interests, this court examines the Arkansas contacts to decide this state’s interest. Here, Arkansas’ contacts to the accident are at the site in Maumelle where the negligence allegedly occurred and the fact that Hunt’s principal place of business is Arkansas. Louisiana’s sole contact is the place where the accident occurred. Arkansas has a significant governmental interest in this case, because Arkansas has a real interest in protecting its people from negligent behavior and in protecting Arkansas employees.
Under the fifth consideration, application of the better rule of law, we hold that the circuit court erred in applying Louisiana law, because that law prevents a suit in tort for negligence against a non-employer like Target. Louisiana law, according to the circuit court, would transform Target into a statutory employer and hold Target immune from tort liability. As a result, Schubert is foreclosed from his day in court. This is akin to the situation in Wallis v. Mrs. Smith’s Pie Co., supra, where we viewed the Arkansas comparative-fault law as superior to the Missouri contributory-negligence law, which would have denied the plaintiff-victim any damages.
We conclude that Arkansas has significant contacts with this case and that any assertion of forum shopping is unfounded. Moreover, Target’s citation to a 1960 federal district court case, McAvoy v. Texas E. Transmission Corp., 187 F. Supp. 46 (W.D. Ark. 1960), is not determinative. McAvoy was decided before this court’s opinions in Wallis v. Mrs. Smith’s Pie Co., supra, and Gomez v. ITT Educ. Servs., Inc., supra. The fact that our court of appeals cited McAvoy in a 198.6 decision, Orintas v. Meadows, 17 Ark. App. 214, 706 S.W.2d 199 (1986), is clearly not binding on this court. We note, in addition, that the principles of lex loci delicti and the five choice-of-law factors were reiterated by this court as recently as 2002 in the Gomez case. In light of this history, the McAvoy decision is simply not controlling authority for this case.
In short, we hold that, based on the significant contacts Arkansas has with this case and its better rule of law, the substantive law of Arkansas applies. We reverse the summary judgment in favor of Target on the choice-of-law point and remand for further proceedings. Because we reverse on the first point, there is no need for this court to address Schubert’s second point related to Louisiana’s substantive law.
Reversed and remanded.
The distinguished law professor Dr. Robert A. Leflar, set out the five factors in his treatise, Robert A. Leflar etú., American Conflicts Law (4th ed. 1986) (previous editions released in 1959,1968, and 1977), and in several law review articles. See, e.g., Robert A. Leflar, Conflict of Laws: Arkansas the Choice Influencing Considerations, 28 Arx. L. Rev. 199 (1974). | [
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Donald L. Corbin, Justice.
Appellant Old Republic Surety Company appeals the order of the Pope County Circuit Court granting summary judgment to Appellee Sharon McGhee, individually and on behalf of a class of similarly situated persons, and ordering the release of surety bonds that Appellant issued for payday lender Russellville Check Express, Inc. Appellant argues that the trial court should have dismissed Appellee’s claim because she failed to exhaust her administrative remedies before the Arkansas State Board of Collection Agencies. This case, along with the case of Staton v. American Manufacturers Mut. Ins. Co., No. 04-56, was certified to us from the Arkansas Court of Appeals as presenting an issue of substantial public interest. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1—2(b) (4). We reverse.
The record reflects that Appellant provided a surety bond in the amount of $50,000 for Russellville Check Express (“RCE”), a payday lender licensed under Act 1216 of 1999, the Arkansas Check-Cashers Act, Ark. Code Ann. §§ 23-52-101 to -117 (Repl. 2000 and Supp. 2003). The bond was issued on August 1, 1999.
Appellee filed suit against Appellant on May 27, 2003, seeking release of the bond to satisfy a judgment that she had previously won against RCE. Appellee asserted that she had obtained a consent judgment from RCE on January 8, 2003, in the amount of $191,419.20, and she attached a copy of said consent judgment to her complaint. She also asserted that the judgment entered against RCE was based upon “a violation of the Arkansas usury law and Arkansas Code Annotated §§ 4-51-102, 4-57-105, 4-57-106, 4-57-107 and 4-57-108,” and that RCE is unable to satisfy the judgment against it. She asserted further that although she had made demand for the bond, Appellant had willfully failed and refused to comply with the terms of its bond. Finally, she averred that although she had a remedy available from the State Board of Collection Agencies, requiring her to go before the Board on this claim would be futile, because the Board had previously refused her request to release the surety bonds in another action involving Appellant.
Appellant filed a motion to dismiss on June 24, 2003, asserting that the trial court lacked jurisdiction over Appellee’s suit, because she had failed to exhaust her administrative remedies before the Board. It contended that Section XXX of the Board’s Rules and Regulations specifically provides the procedure for securing release of surety bonds. It contended further that it would not be futile to require Appellee to exhaust her administrative remedies in this case, because the prior action brought by Appellee before the Board was still pending on appeal in the Pulaski County Circuit Court. Appellant argued that Appellee’s actions in filing this suit without first obtaining a final ruling on the prior action amounted to forum shopping.
Appellee responded to the motion to dismiss by filing a motion for summary judgment, in which she asserted that she was entitled by law to a release of the surety bond for RCE, because RCE had been found to have violated the usury laws of this state. She stated that she did not have to bring the current action before the Board, regardless of its Rules and Regulations, because the bond itself allowed her to proceed directly against Appellant in court. She also reiterated her position that to require her to go before the Board would be futile, because the Board had previously ruled against her.
A hearing on the motions was held in the circuit court on December 8, 2003. Counsel for Appellant argued that under the Board’s rules, Appellee was required to make demand on the Board for release of the surety bond. Counsel also argued that requiring Appellee to exhaust her administrative remedies, even though she had lost on a similar action before the Board, would not be a futile act. Counsel argued that the concept of futility referred to an agency not being able to grant the type of relief sought, but that it did not refer to a situation where the agency had merely ruled against a party in a similar matter. Counsel suggested that not only was the Board specifically empowered to grant the relief requested by Appellee, its power in this matter was exclusive, as both the bond itself and the Boards’ Rules and Regulations provide that the surety bond shall be paid over to the Board once it determines that a person has been harmed by the unlawful actions of a payday lender. Thus, to get release of the bond, Appellee must make demand on the Board.
At the conclusion of the hearing, the trial court stated that it would take the matter under advisement until it could review the pleadings and authority submitted by both sides. Thereafter, in an order entered on March 23, 2004, the trial court granted summary judgment to Appellee and denied Appellant’s motion to dismiss. The order did not give any particular reason to support the rulings. However, the following statement from the bench reveals that the trial court may have agreed with Appellee’s argument that requiring her to seek relief from the Board would be a futile act:
I want to see what I can find on futile and see how that’s addressed. I can certainly see where the plaintiffs don’t want to waste time if they know what the outcome is going to be; but I can also see that it’s an administrative procedure and even if you know the outcome, you’ve got to do it. Seems like that is a waste of time as a practical matter but —
For reversal, Appellant argues that the trial court erred in granting summary judgment to Appellee and thereby denying its motion to dismiss. As it argued below, Appellant maintains that the trial court lacked jurisdiction over the case because Appellee failed to exhaust her administrative remedies before the State Board of Collection Agencies. We agree.
The doctrine of exhaustion of administrative remedies provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed statutory administrative remedy has been exhausted. Arkansas Prof'l Bail Bondsman Lic. Bd. v. Frawley, 350 Ark. 444, 88 S.W.3d 418 (2002); Cummings v. Big Mac Mobile Homes, Inc., 335 Ark. 216, 980 S.W.2d 550 (1998). A basic rule of administrative procedure requires that an agency be given the opportunity to address a question before a complainant resorts to the courts. Id. The failure to exhaust administrative remedies is grounds for dismissal. Douglas v. City of Cabot, 347 Ark. 1, 59 S.W.3d 430 (2001); Romine v. Arkansas Dep’t of Envtl. Quality, 342 Ark. 380, 40 S.W.3d 731 (2000).
There are, however, exceptions to the exhaustion requirement. For instance, this court has recognized that exhaustion of administrative remedies is not required where no genuine opportunity for adequate relief exists, or where irreparable injury will result if the complaining party is compelled to pursue administrative remedies, or where an administrative appeal would be futile. Cummings, 335 Ark. 216, 980 S.W.2d 550; Barr v. Arkansas Blue Cross & Blue Shield, Inc., 297 Ark. 262, 761 S.W.2d 174 (1988). In other words, inadequate or futile administrative remedies need not be exhausted before other remedies are pursued. Cummings, 335 Ark. 216, 980 S.W.2d 550.
This court has not heretofore specifically defined what is meant by the term “futile” in the context of the doctrine of exhaustion of administrative remedies. Appellant argues that what is meant by “futile,” is something that is legally impractical, like where the agency has no power to grant the relief requested. To support this argument, Appellant relies on the holding in Cummings, 335 Ark. 216, 980 S.W.2d 550.
In Cummings, the appellants purchased a mobile home from the appellee. They had numerous problems with leaks, which the appellee, Big Mac Mobile Homes, had made several attempts to repair. Following the last unsuccessful attempt, the appellants revoked their acceptance of the mobile home, tendered the mobile home to Big Mac, and demanded a return of their payments. Big Mac refused the tender, and the appellants filed suit for breach of contract. Big Mac moved to dismiss the suit on the ground that the appellants had failed to exhaust their administrative remedies before the Arkansas Manufactured Home Commission. The trial court granted the motion, but this court reversed on the ground that requiring the appellants to exhaust their administrative remedies before the Commission would be futile. This court explained that under this state’s statutes and the Commission’s rules, the Commission could only provide a remedy for damages for the actual cost of repairs, but that damages for repairs was not the remedy requested by the appellants. This court then held: “We conclude that when a plaintiff prays for relief that is clearly not available at the administrative level, exhaustion of other available administrative remedies is not required.” Id. at 222, 980 S.W.2d at 553 (citations omitted).
Appellant also relies on the holding by the court of appeals in McLane Southern, Inc. v. Davis, 80 Ark. App. 30, 90 S.W.3d 16 (2002). There, the Arkansas Tobacco Control Board had notified McLane, a cigarette wholesaler, that it was being charged with violating the anti-rebating provisions of the Unfair Cigarette Sales Act. McLane requested a hearing before the Board; however, before the hearing was held, McLane filed suit in circuit court seeking an injunction to prevent the Board from enforcing the anti-rebating provisions of the act and a declaration that the act and the applicable Board regulations were unconstitutional. The trial court dismissed the case for McLane’s failure to exhaust its administrative remedies. The court of appeals affirmed. In doing so, it rejected McLane’s argument that any action before the Board on the constitutionality of the act’s anti-rebating provisions would be futile because the Board’s construction of the validity of those provisions was “a foregone conclusion.” Id. at 41, 90 S.W.3d at 23. The court of appeals held:
We do not, however, believe that McLane established the futility of its raising the constitutional issues in the administrative proceeding. Whatever the Board’s decision on the matter, McLane would have been able to appeal its decision to the circuit court. Also, the Board might have interpreted the statute in a manner that favored McLane’s position or it might have determined that McLane’s conduct did not fall within the terms of the statute.
Id. (citation omitted) (emphasis added).
The facts in the present case are different from those in McLane, in that the litigant here has previously gone before the Board on a similar case and actually received an unfavorable ruling, as opposed to assuming that an unfavorable ruling would be rendered. However, the logic of McLane, that a litigant must pursue available remedies to their final conclusion, including the appeal process, is applicable to this case. Until a litigant pursues the administrative process to its end, it cannot be said that it is futile to exhaust those remedies before filing suit. Even the case relied upon by Appellee, Zhou v. Guardian Life Ins. Co. of America, 295 F.3d 677 (7th Cir. 2002), supports this conclusion.
In Zhou, the litigant started the administrative process, but did not follow it through to the end before filing suit. The district court dismissed the suit on the ground that he had failed to exhaust his administrative remedies. On appeal to the Seventh Circuit, Zhou argued that requiring him to exhaust his remaining administrative remedies would be futile. The appeals court disagreed, holding:
[F]or a party to come within the futility exception, he “must show that it is certain that [his] claim will be denied on appeal, not merely that he doubts that an appeal will result in a different decision." Save for bald allegations and conclusory statements, Zhou has proffered no facts that would lead this court to find that it was a certainty that further administrative appeal would result in a denial of his claim. When a party has proffered no facts indicating that the review procedure that he initiated will not work, the futility exception does not apply.
Id. at 680 (citations omitted) (emphasis added). Under this holding, it is not enough for a litigant to begin the administrative process and then abandon it when he or she believes that the unfavorable decision reached by the agency will not be overturned on appeal. The litigant must either follow through to the final conclusion of the administrative process or present facts demonstrating that it is certain that the relief sought will be denied on appeal. See also Ellingson & Assoc., Inc. v. Keefe, 410 N.W.2d 857 (Minn. App. 1987) (holding that futility is demonstrated where the administrative agency has unequivocally committed itself to a position).
Similarly, the Supreme Court of Washington, in Citizens for Clean Air v. City of Spokane, 114 Wash. 2d 20, 785 P.2d 447 (1990), has held that the policies underlying the doctrine of exhaustion of administrative remedies “impose a substantial burden on a litigant attempting to show futility.” Id. at 30, 785 P.2d at 453 (citation omitted). There, Citizens sued the city because it had approved the building of a garbage incinerator. During public hearings on a proposed contract, a lawyer for Citizens argued against the proposal, challenging the adequacy of the environmental-impact statement obtained by the city. The city approved the contract. Thereafter, Citizens filed suit. The trial court entered judgment in favor of the city, and Citizens appealed. The Washington Supreme Court affirmed the judgment as to the group’s challenge to the adequacy of the environmental-impact statement on the ground that Citizens had failed to exhaust their administrative remedies by appealing the city’s decision. In so holding, the court discussed the underlying policies for requiring exhaustion:
The exhaustion requirement (1) prevents premature interruption of the administrative process; (2) allows the agency to develop the factual background on which to base a decision; (3) allows the exercise of agency expertise; (4) provides a more efficient process and allows the agency to correct its own mistake; and (5) insures that individuals are not encouraged to ignore administrative procedures by resort to the courts.
Id. (citing Estate of Friedman v. Pierce Cy., 112 Wash. 2d 68, 768 P.2d 462 (1989); Orion Corp. v. State, 103 Wash. 2d 441, 693 P.2d 1369 (1985)). Applying those policies, the court rejected the group’s argument that exhaustion would be futile because their appeal of the city’s decision would be to the very same body, the city council, that had previously rejected the group’s complaints. The appellate court held that Citizens had the burden of proving futility, i.e., that the city’s decision would be the same. The court stated: “We will not assume that an appeal focused on specific issues might not have led to changes.” Id. at 32, 785 P.2d at 454.
Based on the foregoing, we conclude that it is not futile to require Appellee to exhaust her administrative remedies before proceeding with her claim in circuit court, even though the State Board of Collection Agencies has ruled against her on a similar claim. As of the date that she filed this suit, Appellee had not pursued her prior claim before the Board to its final conclusion, as that claim was still pending on appeal to the Pulaski County Circuit Court. Thus, she has pursued this claim directly in the Pope County Circuit Court before receiving a final determination on her appeal of the Board’s previous decision. Because she has failed to follow through on her previous claim, and a final determination has not yet been made, it is not futile to require her to exhaust the administrative remedies on her present claim. There is no futility in requiring Appellee to pursue her administrative remedies to their full extent either in the prior case or the present one.
Moreover, Appellee has failed to demonstrate with certainty that the Board’s decision would be the same in the present case. We agree with the Washington Supreme Court and the Seventh Circuit that the burden is on the litigant to demonstrate futility. Here, Appellee only demonstrated that the Board had previously ruled against her on a similar claim. Like the Washington Supreme Court, we are not willing to assume that the Board would automatically reject Appellee’s arguments were they brought again. As stated above, there are sound policy reasons for allowing the agency to correct any mistakes it may have made in prior decisions. By skipping the crucial step before the Board, Appellee has deprived the agency of the opportunity to correct any mistake it may have made in the previous case. In turn, she has deprived the circuit court of a fully developed record to review.
Additionally, the particular circumstances of this case demonstrate that it is not futile to require Appellee to exhaust her administrative remedies, as it is the Board that is specifically empowered to grant the relief requested by her, i.e., the release of the surety bond. Rule XXX of the Board’s Rules and Regulations provides in pertinent part:
A) Each licensee is required to maintain a fifty thousand dollar ($50,000.00) surety bond for the use and benefit of the State of Arkansas and/or for any injured party and to ensure that the licensee shall faithfully perform its duties and obligations pertaining to the business of check cashing and/or deferred presentment services.
B) If the Board determines, after due process, including proper notice and opportunity to be heard, that the licensee has violated any provision of Act 1216 of 1999 or these Rules and Regulations, it shall collect from the required Surety Bond any monies due and payable to satisfy any loss or damages suffered by the State including civil penalties and/or any loss or damages suffered by any persons of the State. Payment on the bond shall be upon the written demand of the State of Arkansas State Board of Collection Agencies. The above notwithstanding, no monies may be collected from the Bond and/or disbursed pending any administrative and/or judicial appeals.
C) In the event of any loss or damage suffered by any persons of the State, the [Board] shall proceed to disburse the funds it has collected from the Surety company in accordance with these Rules. [Emphasis added.]
The remainder of Rule XXX provides for notification to all potential persons harmed by the unlawful actions of the payday lender and for hearings to be held on their claims before the Board determines how to disburse the bond amounts.
In the present case, Appellee is a class representative of similarly situated persons harmed by the alleged unlawful actions of RCE. From the record before us, it cannot be discerned whether any potential class members have opted out of the class. Such persons, however, may also have a claim on the surety bond that Appellee seeks. It would be up to the Board to make a determination as to the amount of disbursement on each claim, after proper notice was given. As such, it was imperative for Appellee to bring her claim before the Board.
We find no merit to Appellee’s argument that the bond itself specifically allows her to bring an action directly against the surety in circuit court. The bond provides in pertinent part that “the State of Arkansas State Board of Collection Agencies or any person(s) of this State suffering such loss or damages shall have the right to bring an action on this bond against the Principal or Surety.” Notably absent from this provision are the words “in circuit court,” or “in the courts of this state.” Thus, Appellee’s argument is misplaced. Indeed, when this provision is read in context with the remainder of the bond, it becomes clear that the “action” against the principal or surety must be brought before the Board, as the bond provides: “That this bond, upon written demand by the State of Arkansas State Board of Collection Agencies shall be paid and turned over to the State of Arkansas State Board of Collection Agencies in accordance with the Rules and Regulations promulgated thereunder.” (Emphasis added.) Thus, under its own terms, the bond is payable to the Board, not to individual persons, and it is the Board who, under its rules and regulations, disburses the bond to any persons harmed by the unlawful actions of a payday lender.
Finally, we reject Appellee’s assertion that the Board lacks jurisdiction to hear her claim, because the decision to release the surety bond turns on a determination that the payday lender, RCE, violated the laws and constitutional provisions pertaining to usury. Appellee supports her argument with a citation to this court’s holding in Luebbers v. Money Store, Inc., 344 Ark. 232, 40 S.W.3d 745 (2001). There, the appellant argued that section 23-52-104(b) of the Check-Cashers Act was unconstitutional. That section provided:
The fee, when made and collected, shall not be deemed interest for any purpose of law, and a check-cashing transaction, including one (1) with a deferred presentment option, shall not be and shall not be deemed to be a loan, loan contract, or a contract for the payment of interest notwithstanding any disclosures required by this chapter.
This court characterized this provision as a declaration by the General Assembly that deferred presentment check-cashing transactions are excluded from the confines of the Arkansas Constitution’s usury provisions. This court then concluded that the legislature could not make such a declaration, because the determination of whether a transaction is usurious is one that must be decided by the courts. Accordingly, this court struck down section 23-52-104(b) as violating the constitutional doctrine of separation of powers.
Appellee contends that our holding in Luebbers strips the Board of the ability to decide her claim because it touches upon the usury laws of this state. We disagree. The issue in that case was the power to determine whether a transaction was usurious, as between the courts and the legislature, not as between the courts and administrative agencies. Indeed, this court has consistently held that administrative agencies have the power to hear related constitutional issues, and that a litigant must raise such constitutional issues in the agency. See AT&T Communs. of the S.W., Inc. v. Arkansas Pub. Serv. Comm’n, 344 Ark. 188, 40 S.W.3d 273 (2001); Romine, 342 Ark. 380, 40 S.W.3d 731; Ford v. Arkansas Game & Fish Comm’n, 335 Ark. 245, 979 S.W.2d 897 (1998). This court has also recognized the value of allowing the agency to fully develop a record on such constitutional claims. See AT&T, 344 Ark. 188, 40 S.W.3d 273.
In the present case, Appellee seeks the release of a surety bond issued by Appellant on behalf of payday lender RCE. Her claim is based upon an alleged order of summary judgment entered by the circuit court, which contains findings that RCE violated the usury provisions of various state statutes and the Arkansas Constitution. However, the fact that her underlying judgment involves an issue of usury does not alter the fact that the Board is the entity charged with the initial determination of whether to release the surety bond. Because she failed to bring her claim to the Board before filing suit in circuit court, she has failed to exhaust the administrative remedies available to her. Accordingly, we reverse the judgment of the trial court and remand for entry of an order consistent with this opinion.
The Staton case, which originated in the Pulaski County Circuit Court, has not yet been scheduled for submission.
The copy of the consent judgment contained in this record bears no file mark.
Appellant’s motion was actually one for summary judgment. However, during the December 8,2003, hearing, the parties agreed that Appellant’s motion was better characterized as a motion to dismiss.
During the December 8, 2003, hearing, the trial court indicated that it had some misgivings about ordering the release of the surety bond based solely on the consent judgment between Appellee and RCE. The court observed that the consent judgment seemed incomplete in that it did not contain specific findings that RCE violated any particular usury laws. Appellee’s counsel informed the court that there had also been an order of summary judgment granted against RCE. Counsel then stated that he would provide the court with a copy of that summary judgment. For whatever reason, however, that order does not appear in the record. | [
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Jim Hannah, Chief Justice.
Appellant Ronnie Polston entered a plea of guilty to possession of methamphetamine, possession of marijuana with intent to deliver, possession of drug paraphernalia, and possession of drug paraphernalia with intent to use. The Independence County Circuit Court sentenced Polston to two years’ confinement in a Regional Punishment Facility, to be followed by a five-year suspended sentence. In addition, Polston was assessed a $2500 fine, court costs of $150, and a $250 DNA testing fee. Polston does not appeal the plea or the sentence of the circuit court. Rather, he argues that DNA testing of non-violent offenders or non-sexual offenders, pursuant to the State Convicted Offender DNA Database Act (“DNA Act”), constitutes an unreasonable search and seizure under the Fourth Amendment of the United States Constitution and article 2, section 15, of the Arkansas Constitution. Further, Polston argues that DNA testing of non-violent drug offenders is an unreasonable search and violates a basic right of privacy, the “right to be let alone” guaranteed in the Bill of Rights to the United States Constitution and Arkansas Constitution, as well as Arkansas privacy law as a whole.
This appeal presents questions concerning the interpretation or construction of the Constitution of Arkansas, as well as issues concerning federal constitutional interpretation. Therefore, we have jurisdiction of this matter pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(6). We hold that the collection of DNA samples of felons pursuant to the DNA Act is reasonable and not unconstitutional. Accordingly, we affirm.
DNA Act
In 1997, the General Assembly enacted the “DNA Detection of Sexual and Violent Offenders Act,” codified at Ark. Code Ann. § 12-12-1101 (Repl. 1999). The purpose of the DNA Act is to assist in criminal investigations, to exclude individuals who are the subjects of criminal investigations or prosecutions, and to deter and detect recidivist acts. See Ark. Code Ann. § 12-12-1102(1), (3) (Repl. 2003).
In 2003, the General Assembly renamed the Act the “State Convicted Offender DNA Database Act,” see Ark. Code Ann. § 12-12-1101 (Repl. 2003), and amended it to provide for DNA testing of all individuals convicted of all “qualifying offenses.” Ark. Code Ann. § 12-12-1109(a) (Repl. 2003). A “qualifying offense,” in pertinent part, means “any felony offense as defined in the Arkansas Criminal Code.” Ark. Code Ann. § 12-12-1103(9) (Repl. 2003). Under the Act, any person adjudicated guilty of a felony is required to have a DNA sample drawn upon intake to confinement, as a condition of any disposition that does not require confinement, or, if already confined, immediately after sentencing. See Ark. Code Ann. § 12-12-1109(a).
DNA samples are sent to the State Crime Laboratory, where they undergo typing analysis and are stored on the State DNA Database. See Ark. Code Ann. § 12-12-1112(a) (1) (Repl. 2003). In addition to storing samples obtained from offenders, the State Crime Lab stores DNA records related to crime scene evidence, unidentified persons or body parts, and relatives of missing persons. See Ark. Code Ann. § 12-12-1105(b) (Repl. 2003). Further, the State Crime Lab may include the offender’s DNA records in an anonymous population database compiled for statistical purposes. See Ark. Code Ann. § 12-12-1112(d) (Repl. 2003). The State Crime Lab transmits DNA records to the Federal Bureau of Investigation for storage and maintenance in CODIS, the FBI’s national DNA identification system that allows the storage and exchange of DNA records submitted by state and local forensic laboratories. See Ark. Code Ann. §§ 12-12-1105(a)(2) & 12 — 12— 1103(3) (A) (Repl. 2003).
Fourth Amendment Challenge
Polston argues that the DNA testing of non-violent or non-sexual offenders pursuant to the DNA Database violates Fourth Amendment rights against unreasonable searches and seizures. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their discretion.” Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 613-14 (1989). It is well settled that the taking of blood by a law enforcement officer amounts to a Fourth Amendment search and seizure. Schmerber v. California, 384 U.S. 757 (1966); Haynes v. State, 354 Ark. 514; 127 S.W.3d 456 (2003); Russey v. State, 336 Ark. 401, 985 S.W.2d 316 (1999); Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). However, only those searches and seizures that are deemed unreasonable are proscribed by the Fourth Amendment. Skinner, 489 U.S. at 619. What is reasonable “ ‘depends on all of the circumstances surrounding the search or seizure and the nature of the search and seizure itself.’ ” Id. (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985)). “Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 648, 654 (1979).
The State concedes that the drawing of DNA pursuant to the DNA Act is a search for the purposes of the Fourth Amendment; however, the State argues that the search is constitutional for two independent reasons. The State first argues that the DNA Act is constitutional because the collection of a DNA sample from non-violent felons is a “special needs” search that is reasonable even in the absence of individualized suspicion. Additionally, the State argues that even if the collection of a DNA sample from non-violent felons is not a “special needs” search, it is nonetheless constitutional because it is reasonable under the totality of the circumstances.
The United States Supreme Court has not addressed the issue of whether the DNA testing of non-violent offenders is an unreasonable search and seizure under the Fourth Amendment. Courts that have reviewed the constitutionality of DNA collection statutes have used differing approaches in addressing a Fourth Amendment challenge. Some courts have determined that the collection of DNA samples from offenders falls within the “special needs” exception. See, e.g., Green v. Berge, 354 F.3d 675 (7th Cir. 2004); United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003); Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999); Vore v. United States Dep’t of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003); Miller v. United States Parole Comm’n, 259 F. Supp. 2d 1166 (D. Kan. 2003); United States v. Sczubelek, 255 F. Supp. 2d 315 (D. Del. 2003); United States v. Reynard, 220 F. Supp. 2d 1142 (S.D. Cal. 2002); State v. Martinez, 276 Kan. 527, 78 P.3d 769 (2003); State v. Olivas, 122 Wash. 2d 73, 856 P.2d 1076 (1999); State v. Surge, 122 Wash. App. 448, 94 P.3d 345 (Wash. Ct. App. 2004); State v. Steele, 155 Ohio App. 3d 659, 802 N.E.2d 1127 (2003); In re D.L.C., 124 S.W.3d 354 (Tex. Ct. App. 2003). Other courts have used the totality-of-the-circumstances approach, weighing the interests of the State and those offenders involved. See, e.g., United States v. Kincade, 379 F.3d 813 (9th Cir. 2004); Groceman v. United States Dep’t of Justice, 354 F.3d 411 (5th Cir. 2004); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992); United States v. Stegman, 295 F. Supp. 2d 542 (D. Md. 2003); Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003); Shelton v. Gudmanson, 934 F. Supp. 1048 (W.D. Wis. 1996); Kruger v. Erickson, 875 F. Supp. 1210 (D. Minn. 1995); Sanders v. Coman, 864 F. Supp. 496 (E.D.N.C. 1994); Ryncarz v. Eikenberry, 824 F. Supp. 1493 (E.D. Wash. 1993); In re Maricopa Juvenile County Action, 187 Ariz. 419, 930 P.2d 496 (Ct. App. 1996); People v. King, 82 Cal. App. 4th 1363, 99 Cal. Rptr. 2d 220 (2000); L.S. v. State, 805 So. 2d 1004 (Fla. Dist. Ct. App. 2001); Landry v. Attorney General, 429 Mass. 336, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073 (2000); Cooper v. Gammon, 943 S.W.2d 699 (Mo. Ct. App. 1997); Gaines v. State, 116 Nev. 359, 998 P.2d 166 (2000); State ex rel. Juv. Dep’t v. Orozco, 129 Or. App. 148, 878 P.2d 432 (1994); Johnson v. Commonwealth, 259 Va. 654 (2000), 529 S.E.2d 769, cert. denied, 531 U.S. 981 (2000); Doles v. State, 994 P.2d 315 (Wyo. 1999).
We agree with those courts that have adopted the totality-of-the-circumstances test when asked to determine whether a DNA collection statute constitutes an unreasonable search and seizure under the Fourth Amendment. Accordingly, in this case, we need not address whether the DNA Act falls within the special-needs exception to the Fourth Amendment.
The question before us is whether a felon’s expectation of.privacy in the intrusive nature of the DNA test outweighs the State’s interest in collecting DNA samples and maintaining a DNA database. As to the felon’s expectation of privacy, the United States Supreme Court has recognized that “those who have suffered a lawful conviction” are subject to a “broad range of [restrictions] that might infringe constitutional rights in a free society.” McKune v. Lile, 536 U.S. 24, 36 (2002). The United States Supreme Court has held that a convicted person has a diminished expectation of privacy in the penal context. See Hudson v. Palmer, 468 U.S. 517, 530 (1984). Further, the Court has held that probationers have limited privacy rights under the Fourth Amendment. See Griffin v. Wisconsin, 483 U.S. 868, 874 (1987).
Another factor to consider is the intrusion occasioned by the search. The Supreme Court has held that “the intrusion occasioned by a blood test is not significant, since such ‘tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’ ” Skinner, 489 U.S. at 625 (quoting Schmerber, 384 U.S. at 771). Moreover, the Court has stated “that blood tests do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.” Winston v. Lee, 470 U.S. 753, 762 (1985). We agree with the State’s contention that because the privacy rights of felons are diminished by virtue of their conviction and the intrusion of the blood test is not significant, the privacy rights implicated by searches under the DNA Act are minimal. However, our analysis does not end there. We must now determine whether the State’s interest in collecting and maintaining DNA samples outweighs the privacy interests of the affected offenders.
The State contends that its interests are substantial, in that the collection of samples under the DNA Act contributes to the State’s important interest of a more accurate criminal justice system, as well as its obvious interest in preventing and solving future crimes. In addition, the State contends that this interest would be jeopardized by requiring individualized suspicion prior to collecting a felon’s DNA because any matching DNA from a crime scene is most likely in the database because other evidence collected there did not definitively point to any suspect. As a result, the State contends that requiring individualized suspicion would frustrate the State’s interests in accurately solving crimes and preventing future offenses.
We believe that the collection and maintenance of DNA samples pursuant to the DNA Act is reasonable in light of the substantial interests of the State and the diminished privacy interests of convicted felons. Polston concedes that the State has a compelling interest in collecting DNA samples from violent offenders and sexual offenders due to the high rates of recidivism of those offenders. However, he states that there is no rational basis for requiring DNA testing of non-violent offenders and nonsexual offenders because the State cannot demonstrate that those offenders will likely commit a violent offense in the future. The State disputes this, citing the testimony of Dr. Paul Ferrara, the Director of the Virginia Division of Forensic Science, who testified recently before the House Judiciary Committee concerning the inclusion of non-violent felons within the scope of the Virginia DNA Act:
It is tempting to suggest limiting the use of DNA testing to violent crimes and only collect samples from violent felons. That is an approach used in other states. While on the surface this seems like a reasonable strategy, I submit to you that to do so is shortsighted and will dramatically reduce the efficacy of DNA databanks. By analyzing carefully these first 1000 “hits,” our research revealed the following:
Of the 894 case to offender “hits,” i.e., where a match between crime scene evidence and a convicted offender occurred, 344 “hits” (38.5%) were to offenders in our database for prior felony property crime convictions. The crimes assisted/solved by these 344 “hits” included 54 sex offenses, 27 homicides, 6 assaults, 10 robberies, one rape/homicide, 2 abduction/car jackings and 214 burglaries/ B&Es/larcenies.
Another 172 of the 894 case to offender “hits” (19.2%) were to offenders in our database for prior felony drug convictions. The crimes assisted/solved by these 172 “hits” include 35 sex offenses, 42 homicides (including two double homicides), 3 assaults, 18 robberies, 13 abduction/car jackings, and 41 property crimes.
Even 47 “hits” were to offenders in our database for prior felony/forgery/uttering convictions. The crimes assisted/solved by these 47 “hits” include 12 sex offenses, 8 homicides, 4 other violent crimes against persons and 22 B&Es/burglaries/larcenies.
Our database shows similar trends with respect to juveniles. Eighty (80) of the 894 case to offender “hits” were to juveniles in our database. The crimes assisted/solved by these 80 “hits” include 12 sex offenses, 8 homicides, 2 assaults, 7 robberies, one rape/homicide, 3 abduction/car jackings and 41 property crimes.
To summarize, 37% of violent crimes solved or assisted by a DNA databank hit were perpetrated by individuals with only prior property crime convictions as their most serious qualifying offense. Looked at another way, 82% of these case to offender “hits” would have been completely missed if our databank was limited to only violent crimes.
* * *
Further, the State argues that according to a Bureau of Justice Statistics Special Report, Recidivism of Prisoners Released in 1994, 21.9% of state prisoners whose most serious offenses were burglaries were rearrested for violent offenses including homicide, kidnapping, rape, other sexual assaults, assault, robbery, and other violence. Further, the report stated that of other prisoners who had previously committed non-violent offenses such as larceny, automobile theft, fraud, drug offenses, and public order offenses were rearrested for violent offenses at the following percentages: larceny (22.3%), automobile theft (26.5%), fraud (14.8%), drug offenses (18.4%), public order offenses (18.5%). The State contends that this data shows that violent recidivism is not confined to violent felons, and, therefore, a need to include them within the scope of the statute clearly exists. Polston offers no authority to the contrary, and counsel for Polston conceded at oral argument that he had no evidence to rebut the findings presented by the State.
In addition, the State has an interest in deterring and detecting all recidivist acts, not just those considered to be violent. Even assuming the drug offenses at issue here are non-violent offenses, we note that other jurisdictions have indicated that DNA evidence may be used to determine who committed a drug offense. See, e.g., State v. White, 850 So. 2d 751, 759 (La. Ct. App. 2003) (presence of defendant’s DNA on bag of cocaine sufficient to prove direct physical contact and control of the drug); Birdsong v. Commonwealth, 37 Va. App. 603, 609-10, 560 S.E.2d 468, 471-72 (2002) (defendant’s DNA used as evidence to convict defendant of possession of cocaine and possession of firearm). The collection and storing of DNA may indeed be useful in helping to solve future drug crimes.
In further support of collecting DNA samples from non-violent offenders, the State points out that the State Crime Lab stores DNA records for purposes other than those associated with criminal investigations, namely those records related to unidentified persons or body parts, and relatives of missing persons. See Ark. Code Ann. § 12-12-1105(b). Polston has failed to demonstrate that in the context of DNA testing, non-violent offenders have greater privacy rights than violent offenders and sexual offenders. We hold that the DNA testing of convicted felons, pursuant to the DNA Act, is reasonable and does not violate the Fourth Amendment.
Article 2, Section 15
Additionally, Polston argues that the DNA testing of non-violent offenders violates article 2, section 15, of the Arkansas Constitution. We have noted that in various search-and-seizure contexts, this court has viewed the protections of article 2, section 15, of the Arkansas Constitution to be parallel to those provided by the Fourth Amendment. State v. Sullivan, 348 Ark. 647, 74 S.W.3d 215 (2002). However, we have also noted that in other search- and-seizure contexts, this court has not been in lock-step with federal Fourth Amendment interpretation. Id. There are occasions and contexts in which federal Fourth Amendment interpretation provides adequate protections against unreasonable law enforcement conduct; there are also occasions when this court will provide more protection under the Arkansas Constitution than that provided by the federal courts. Id. We have stated that one pivotal inquiry in this regard is whether this court has traditionally viewed an issue differently than the federal courts. Id.
The State contends that this court has followed the United States Supreme Court’s interpretation of the Fourth Amendment in the context of parole searches and suspicionless seizures. To support its proposition, the State cites to Cherry v. State, 302 Ark. 462, 791 S.W.2d 354 (1990), where this court held that a warrantless search of a parolee’s vehicle did not violate the Fourth Amendmen, and Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997), where this court, noting that the language of article 2, section 15, was “virtually identical” to the Fourth Amendment, held that a vehicle roadblock was a reasonable “seizure” under both the Fourth Amendment and article 2, section 15. While the United States Supreme Court has not specifically addressed the issue before us — whether the DNA testing of non-violent offenders is an unreasonable search and seizure under the Fourth Amendment — Polston cites no case suggesting that this court has traditionally viewed the issue of searches or suspicionless seizures in the penal context in a manner inconsistent with the view of the federal courts. We have repeatedly stated that we will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. Wooten v. State, 351 Ark. 241, 91 S.W.3d 63 (2002).
Privacy
Polston next appears to argue that collecting DNA samples from non-violent offenders interferes with a right of privacy apart from an individual’s right to be free from unreasonable searches and seizures. Polston cites Winston v. Lee, 470 U.S. 753 (1985), where the United States Supreme Court held that forcing a suspect to undergo major surgery to remove a bullet was a search in violation of the Fourth Amendment, even where the search would produce evidence of a violent crime. We do not believe that the intrusion occasioned by forcing a suspect to undergo major surgery is analogous to the minimal intrusion occasioned by compelling a convicted felon to provide a blood sample for DNA testing. As previously stated, we believe the collection of DNA is reasonable.
Polston next cites Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002), where this court held that Arkansas’s sodomy statute was unconstitutional when applied to consenting adults in their homes. We further explained our holding in Jegley v. Picado, supra, in State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004), where we stated:
. .. [T]he right to privacy implicit in the Arkansas Constitution is a fundamental right which requires a compelling state interest to override it. This rich tradition of protecting the privacy of our citizens in their homes justified our deviating from federal common law in Picado with respect to constitutional protection in our homes. Indeed, the legal principle that a person’s home is a zone of privacy is as sacrosanct as any right or principle under out state constitution and case law. Jegley v. Picado, supra; Griffin v. State, supra. Arkansas has clearly embraced a heightened privacy protection for citizens in their homes against unreasonable searches and seizures, as evidenced by our constitution, state statutes, common law, and criminal rules.
Brown, supra. We fail to see how our precedents recognizing a citizen’s fundamental right to privacy in his or her home offer any support for Polston’s argument that he, a convicted felon, has a fundamental right to privacy implicit in Arkansas law that would exempt him from the DNA testing at issue in this case.
Affirmed.
The term “CODIS” is derived from Combined DNA Index System. Ark. Code Ann. § 12-12-1103(3)(B) (Repl. 2003). All fifty states participate in CODIS. CODIS Combined DNA Index System, available at http://www.fbi.gov/hq/lab/codis/indexl.htm.
As a general rule, a search or seizure is unreasonable “in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). However, the Court has recognized exceptions to this rule in cases where “ ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’ ” Skinner,489 U.S.at 619 (citing Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), quoting New Jersey v. T.L. O., 469 U.S. 325, 351 (1985) (Blackmun, j., concurring)).
All fifty states have enacted statutes providing for the collection and retention of DNA samples. In addition to Arkansas, the following states include “all felons” in the list of persons required to provide DNA samples: Alabama (Ala. Code §§ 36-18-24 and 36-18-25); Alaska (AlaskaStat.§ 44.41.035); Arizona (Ariz.Rev.Stat.§ 13-610); Colorado (Colo.Rev. Stat.§ 16-11-102.3); Connecticut (Conn. Gen. Stat. § 54-102g); Delaware (Del. Code Ann. tit. 29, § 4713); Florida (Fla. Stat. Ann. § 943.325); Georgia (Ga. Code Ann. § 24-4-60); Illinois (730 111. Comp. Stat.Ann. § 5/5 — 4—3); Kansas (Kan. Stat.Ann. § 21-2511); Louisiana (La. Rev. Stat. Ann. § 15:609); Maryland (Md. Code Ann., Public Safety § 2-504); Massachusetts (Mass. Gen. Laws ch. 22E, § 3); Michigan (Mich. Comp. Laws § 750.520m); Mississippi (Miss. Code Ann. § 47-5-183); Montana (Mont. Code Ann. § 44-6-102); New Mexico (N.M. Stat.Ann. § 29-16-3); North Carolina (N.C. Gen. Stat. § 15A-266.4); Oregon (Or. Rev. Stat. § 137.076);SouthDakota(S.D.CodifiedLaws§ 23-5A-1); Tennessee (Term. Code Ann. § 40-35-321); Utah (Utah Code Ann. § 53-10-403); Virginia (Va. Code Ann. § 19.2-310.2); Washington (Wash. Rev. Code Ann. § 43.43.754); Wisconsin (Wis. Stat. § 165.76); Wyoming (Wyo. Stat. Ann. § 7-19-403). Maine does not classify crimes as felonies or misdemeanors. Crimes other than murder are classified as Class A, B, C, D, and E. All persons convicted of murder or a Class A, B, or C crime must provide a DNA sample. See Me. Rev. Stat. Ann. tit. 17-A, § 1574. New Jersey requires DNA samples from persons convicted of a “crime.” See N.J. Stat. Ann. § 53:1-20.20. The remaining states, the District of Columbia, and the federal government require collection of DNA samples from all persons convicted of certain enumerated offenses.
Courts have consistendy held that the collection of DNA samples is reasonable and does not violate the Fourth Amendment. Two cases cited by Polston where courts found that the collection of DNA was unconstitutional, United States v. Miles, 228 F. Supp.2d 1130 (E.D. Cal. 2002), and United States v.Kimade, 345 F.3d 1095 (9th Cir. 2003),vacated on grant of rehearing en banc, 354 F.3d 1000 (9th Cir. 2004), are no longer good law. See United States v. Kincade, 379 F.3d 813 (9th Cir. 2004). | [
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Betty C. Dickey, Justice.
Appellant Robbin R. Ridling was convicted of capital felony murder by a Miller County jury and was sentenced to life imprisonment without parole. Ridling brings seven (7) points on appeal, none of which has merit. We affirm.
Background
Ridling and his wife, Lisa Graf, lived in Texarkana, Arkansas, in a duplex adjoining that of Betty Tullis, the girlfriend of Roy Baskett, the victim. Baskett became friends with Ridling and Lisa, and continued that friendship after Betty and Baskett had stopped dating, and she had moved from the duplex into a home in May 2002.
Tensions first began between Baskett and the Ridlings in July of 2002, when Baskett’s wallet, containing his dog tags, was missing. Baskett suspected that either Lisa or her good friend, Lisa Hickey, had stolen the wallet. On July 27, 2002, while Ridling was working in Little Rock, Baskett stopped by their duplex to visit with Lisa. While there, Baskett discovered that the Ridlings had captured a raccoon using a trap provided by the city. Baskett became upset and left, but returned shortly thereafter, smashed the cage, and freed the raccoon. Lisa called Ridling, who told her not to call the police, but said he would talk to Baskett the next day. However, Lisa and Ridling called law enforcement instead, then called Baskett to tell him how upset the incident had made her and that she was not going to pay for the cage.
About the third week of July 2002, Don Mitchell overheard an answering machine message recorded on Baskett’s telephone from a “Robbin” who angrily told Baskett he had gone too far by destroying the animal trap and that he intended to either “whip” or “kick Baskett’s ass” in retaliation.
In August of 2002, Betty and Baskett started seeing each other again, and on Saturday, August 3, 2002, he stopped by Betty’s house about 8:30 p.m., but Betty was going to dinner with a friend. Before she left, Baskett asked her for his captain’s bars, telling her that he “was going on a mission.” Baskett did not give Betty any other details. Baskett drove to the duplex and told Ridling that “he was nothing but a piece of shit, he never served his country, had never been in the armed forces,” and that Lisa was a slut. Baskett told Ridling and Lisa that he heard that Lisa had cheated on her first husband and that she was not the person he thought she was. Baskett then accused Lisa of being in cahoots with Lisa Hickey to steal his wallet.
Baskett challenged Ridling to fight, to which Ridling responded, “I don’t want to fight an old man, and besides that, you’re packing heat.” Baskett demanded that Lisa return a gun that he had given her, which she did. While Lisa and Ridling were getting the firearm, Ridling told Lisa that Baskett had a gun with him and that they better empty the bullets out of this gun. After Baskett left, Lisa told Ridling that she did not want Baskett over at their house anymore and that she wanted Ridling to take care of the situation. Lisa asked Ridling to let her call the police but he refused.
On his way home, Baskett stopped by Willie Chiles’s home and told him about the confrontation. Chiles, Baskett’s neighbor, testified that Baskett was upset, and after showing Chiles two guns, said that he would be needing one of his guns that evening. Betty returned to her home about 9:45 p.m., and Baskett returned there around 10:00 p.m., with the firearm, where they spent the night together.
The next morning, Sunday, August 4, 2002, Baskett and Betty left her home and went to Baskett’s. Betty left there between 10:00 a.m. and 11:00 a.m. to do her weekly shopping.
Lisa testified that Ridling awoke about noon on Sunday, August 4, 2002. She told Ridling that she was still upset and that he needed to “handle this situation. Take care of it, Robbin. I don’t want him back over here acting that way. I don’t want to have to deal with it. I don’t want him bringing guns back to my house.” Ridling then picked up a baseball bat and keys to his 1992 blue Dodge Dakota extended cab truck, and said that he had to go take care of some things. He told Lisa he was going jogging and was taking the bat back to Wal-Mart. He left wearing black shorts, a red muscle shirt, and tennis shoes. Sometime thereafter, Lisa went by Wal-Mart and the place where he normally jogged, but did not see him or his truck. Lisa tried calling Ridling, but he did not answer.
At approximately 12:30 p.m. that day, Florence Seale, Baskett’s across-the-street neighbor, was looking out her window when she saw Ridling’s truck pull up to the Baskett home. Baskett got into Ridling’s truck and the two drove away. Seale saw nothing out of the ordinary in either man’s behavior.
Ridling returned home around 3:00 p.m. carrying his tennis shoes and socks, which were wet and grassy. He started the washer, took his shoestrings out of his shoes, and threw his shoes in the washing machine. Ridling then began scrubbing the shoestrings in the sink; actions Lisa testified that were highly unusual. He then took off the red muscle shirt and took a shower. Lisa never saw that shirt nor the socks again after that afternoon. Ridling told Lisa that he had gone jogging and then had to change a flat tire. Ridling eventually dressed and left for work at UPS some time around 6:00 p.m. Later, Lisa drove by UPS and noticed that Ridling had his truck pulled up to the building with both doors open and was holding a water hose. She thought it odd that he was spraying water on the inside of his truck. Lisa did not stop at that time, but she did return before Ridling left in his UPS truck. At 7:04 p.m., Lisa called Ridling to make sure that he was on the road. She went back out to UPS, and using her spare key, opened the truck door. She noticed that the interior, particularly the passenger side, was wet, and she saw the baseball bat in the back. Later that night Lisa called Ridling seven times on his cell phone, asking him several times about his activities that day, but he would never give her a direct answer.
On August 5, Lisa began calling Ridling at 5:43 a.m., with seven more calls between the two by 10:00 a.m. Phone records place Ridling’s cell phone within two to fourteen miles of the Hope Upland Wildlife Management Area. When Lisa returned home, around noon, Ridling was back at home. Around 5:00 p.m., while appellant was asleep, Lisa, again, looked in Ridling’s truck to see if his tire was really flat. She did see a tire and two white trash bags. She testified that the bags did not feel as though they contained ordinary trash, but rather something that was both hard and soft. She also testified her husband never hauled trash in his truck.
On August 6, 2002, when no one had heard from Baskett, a missing person’s report was made. Texarkana Police Detective Bobby Jordan began an investigation, interviewing Betty, Willie Chiles, and Florence Seale. Detective Jordan and Detective Ed Chattaway interviewed Lisa, who said that she had not seen Baskett for at least two weeks. After the officers left, Lisa spoke with Ridling who denied having done anything to Baskett, but cautioned Lisa to stick to the story she had told the police.
Detectives Jordan and Chattaway interviewed Ridling and Lisa, who both said that they had not seen Baskett in a couple of weeks. Appellant also stated that he was home all day on Sunday, August 4, 2002, until he left for work around 6:00 p.m., and that his vehicle had not been over at Baskett’s house. Ridling told the officers about the raccoon incident and about Baskett accusing Lisa Graf or Lisa Hickey of stealing his wallet. Jordan noticed that Ridling had a red mark or cut about halfway up his shin. The Detectives also noticed that appellant was guarded during the interview and that he used past tense when referring to Baskett.
Jordan attempted to schedule a second interview with Lisa for August 8, but Ridling called him and cancelled. When the officers finally did interview Lisa on August 14, 2002, Ridling accompanied her and refused to let her speak freely. When Lisa did speak, he would cut her off and interject his own comments. Ridling denied having any contact with Baskett during the week before his disappearance, claimed he stayed home all day on Sunday, August 4, 2002, until he left for work at 6:15 p.m., and when told about witness reports that he and Baskett had a confrontation on August 3, 2002, he denied the encounter.
Warrants to search Ridling’s residence and for seizure of his truck were executed on August 21, 2002. While searching the shed, Detective Marc Sullivan noticed a double-bit axe that had a spattering of green paint on it. While searching the truck, Sullivan found the interior carpet wet, and when it was removed, a reddish-tinted substance was on the bottom of the truck. The preliminary test of the reddish water tested positive for blood. In addition, blood was also found on the passenger seatbelt, on the passenger’s seat headrest, and on a plastic pane on the passenger side. The blood samples were sent to the State Crime Lab and some were found to be a match with that of Baskett.
On August 30, 2002, Arkansas Game and Fish Commission Officer Terry “Mickey” Rogers was working in the Hope Upland Wildlife Area, Hempstead County, when Ridling drove up in his truck dressed in his UPS uniform. Despite that fact that it was quite still dark, between 5:45 and 6:15 a.m., Ridling was driving with only his parking lights on.
On September 27, 2002, another search of the Hope Upland Wildlife Area was conducted, and a white trash bag smelling of a decaying organism was located that afternoon. A stacked pile of branches was found that was inconsistent with the other vegetation in the area, and that had a strong odor of decay surrounding it. Because what appeared to be a bone fragment was seen, the area was thoroughly searched that same day and again on October 1, 2002. During these searches, officers found: bones and fragments ofbone, which were identified as Baskett’s; two sets of keys, which were later found to be to Baskett’s car and house; a baseball cap, which was identified as one given to Baskett; a Chap Ice chapstick container that matched similar containers found at Baskett’s home; sunglasses identified by Baskett’s daughter as belonging to her father; and, a double-bit axe with a spattering of green paint on the handle.
A second search warrant for Ridling’s residence was executed on October 1, 2002, after the axe was found in the woods, but the axe previously photographed at Ridling’s home could not again be located.
At some point prior to the discovery of the bones, Ridling was arrested. During the time he was incarcerated in the fall of 2002, he made several admissions to another inmate, William Gainey, Jr. When Ridling learned that the officers were searching in the Hope Wildlife Area, he said that “[tjhey wouldn’t find anything, but they were looking in the correct area.” Ridling also told Gainey that he and Baskett “were going to the bank on that Sunday.”
On October 8, 2002, an information was filed in Miller County, charging Ridling with capital felony murder and premeditated and deliberated murder. During the trial, Ridling’s counsel moved for directed verdict regarding what he felt were several deficiencies in the State’s case as to proof. The motion was renewed at the end of the trial and was denied.
Territorial Jurisdiction
Ridling argues that there was positive evidence presented that Miller County did not have territorial jurisdiction, but charges should have been filed in Hempstead County. The trial court did not err by denying Ridling’s directed-verdict motion on the basis that the crime did not occur in Miller County, Arkansas.
Territorial jurisdiction over a criminal defendant is controlled by statute. Kirwan v. State, 351 Ark. 603, 96 S.W.3d 724 (2003). We have stated that “when reviewing the evidence on a jurisdictional question, [we] need only determine whether there is substantial evidence to support the finding of jurisdiction.” Id.; Dunham v. State, 315 Ark. 580, 581, 868 S.W.2d 496, 497 (1994).
Our cases have consistently recognized that when a crime begins in one county and proceeds to culmination in another county, both counties have jurisdiction to prosecute the crime. Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003); Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986); See also Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989) (reiterating the law that separate crimes committed in one continuous episode in more than one county may be tried in either county and require joinder in one county if the defendant requests it). In Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991), this court held that although the murder occurred in Greene County, Craighead County had jurisdiction to try the appellant because some of the acts requisite to the murder occurred in Craighead County. See also Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990) (holding that both Saline County and Grant County had jurisdiction to try the appellant for murder, where the actual killing occurred in one county, but the acts requisite to the consummation of the murder and the subsequent disposal of the body occurred in the other county).
Ark. Code Ann. § 5-1-111(b) creates a presumption in favor of jurisdiction where the charge is actually filed by the State. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994). Ark. Code Ann. § 5-1-111(b) states:
(b) The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue.
Findley v. State, 307 Ark. 53, 59, 818 S.W.2d 242, 246 (1991). This presumption can be overcome if positive evidence is admitted that affirmatively shows jurisdiction to be lacking. Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995). If such positive evidence oflack of jurisdiction is presented, then the State must then offer evidence that jurisdiction is proper in the county where the case is being tried. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986).
Ridling contends that no evidence, direct or circumstantial, was presented that any laws were ever violated in Miller County. He asserts that based on the evidence found in Hempstead County, the burden shifted to the State to establish that territorial jurisdiction of Miller County was proper. Dix, supra.
The State presented substantial evidence that an element of the offense for which Ridling was convicted occurred in Miller County, Arkansas. Lisa testified that in response to her demand that Ridling “handle the situation” concerning Baskett, he left with a baseball bat. Seale testified that she saw Ridling’s truck pull up to Baskett’s house, and that Ridling and Baskett left together in that same truck. All these activities occurred in Miller County. From this evidence, the jury could logically conclude that one or more of the acts charged occurred in Miller County. Therefore, the trial court did not err in denying Ridling’s directed-verdict motion on the basis of jurisdiction.
Capital Felony Murder
Ridling challenges the sufficiency of the evidence to support a conviction of capital felony murder. According to the jury’s verdict, Ridling was found guilty “of committing or attempting to commit the crime of kidnapping, and that in the course of and in furtherance of that crime or attempt or in immediate flight therefrom he caused the death of Roy Baskett, Jr. under circumstances manifesting extreme indifference to the value of human life.”
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. Id. Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990). On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Smith, supra.
In this case, the State was required to prove that Ridling committed or attempted to commit the underlying charge of kidnapping. In the information, the State alleged only the underlying offense of kidnapping or the attempted kidnapping to support the charge of capital felony murder. Ark. Code Ann. § 5-11-102(a)(4) states:
(a) A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:
(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him
Ridling contends that the State must prove beyond a reasonable doubt (1) that he restrained Baskett without his consent, and (2) that the purpose of such restraint was to inflict physical injury upon him. Ridling cites to Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987), where this court held that the State did not advance a convincing argument as to how the murder committed after a burglary could be done in the course of and in furtherance of the burglary, both of which were required elements. Therefore, Ridling avers that even if evidence of kidnapping is found, there is no such proof to establish that the death of Baskett was in the course and in furtherance of kidnapping.
However, Parker can be distinguished from the case at hand. Unlike burglary, a specified object of kidnapping is that it occurs with the purpose of causing physical injury. Compare Ark. Code Ann. § 5-11-102(a)(4) with Ark. Code Ann. § 5-39-201(a)(1) (Repl. 1997). Proof of kidnapping necessarily requires proof of intent to cause physical injury. In this case, the evidence showed that Ridling restrained Baskett with the purpose of injuring him and that Baskett’s death occurred during the course thereof.
In Hogan v. State, 281 Ark. 250, 663 S.W.2d 726 (1984), Hogan was the last person seen with the victim before her car was later found abandoned. The victim’s blood and clothing were found inside the car, along with Hogan’s semen and fingerprints. The victim’s body was later found in the Mississippi River. This court held that there was substantial evidence that the murder occurred in the course of kidnapping and affirmed Hogan’s capital murder conviction. .
From the evidence presented at trial, the jury could reasonably conclude that Ridling had formed the plan to lure Baskett into his vehicle, where he would be under Ridling’s control and his liberty thus restrained, with the purpose of injuring or killing him, and that Baskett died under circumstances manifesting extreme indifference to the value of human life. First, Lisa testified that her husband left their home at noon with a baseball bat, saying that he was going to take care of some things. Next, Ms. Seale saw Ridling arrive at Baskett’s home and saw the two leave together soon afterwards. Baskett was last seen at that time. While in jail, Ridling told Gainey that on August 4, 2002, he and Baskett were going to the bank, despite the fact that day was a Sunday. Samples ofBaskett’s blood were discovered in the passenger seat of Ridling’s truck. Bone fragments and several personal items belonging to Baskett were discovered near Hope, an area where appellant was seen twice following Baskett’s disappearance.
Corpus Delicti
Ridling contends that the State failed to prove corpus delicti, that Baskett’s death occurred as a result of a criminal act. The corpus delicti may be proved by circumstantial evidence, i.e., there was in fact a death and that the deceased came to his death by the criminal agency of another. Derring v. State, 273 Ark. 347, 619 S.W.2d 644 (1981); Edmonds v. State, 34 Ark. 720 (1879); and 1 Underhill’s Criminal Evidence 37 (5th Ed. 1956). In 1879, this court laid out three points to be proved before corpus delicti could be found: (1) the fact of death; (2) that the decedent be identified as the person for which defendant had been charged with killing; and (3) criminal agency is the cause of that person’s death. Edmond, supra. There, two medical witnesses examined the skull and rendered the opinion that the victim had received a blow to the head.
Here, Dr. Charles Kokes testified that due to the lack of remains recovered, that he was unable to determine a cause or manner of death. Dr. Kokes stated that “as a medical doctor reviewing all of the evidence, I could not conclusively say that this was a homicide.”
However, circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002); Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Such a determination is a question of fact for the fact-finder to determine. Id.; Sheridan v. State, 313 Ark. 23, 852 S.W.2d 772 (1993). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Phillips, supra. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Philips, supra. Additionally, the longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury. Howard, supra; Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).
The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State’s account of the facts rather than the defendant’s. Howard, supra; Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). We have also held that a defendant’s improbable explanation of suspicious circumstances may be admissible as proof of guilt. Id.; Chapman, supra; Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997).
Here, the jury could reasonably infer that Baskett died by criminal means: the angry confrontation between Ridling and Baskett the night before he disappeared; Ridling’s leaving his residence with a baseball bat and telling Lisa he was going to take care of some things; Baskett leaving his home with Ridling; Baskett’s blood in Ridling’s truck; the discovery of Baskett’s bones in an area where Ridling was known to have been in the hours following Baskett’s disappearance; and, Ridling’s admission to Gainey that the police would not find anything even though they were looking in the right place. Because these facts lead to the conclusion that Ridling kidnapped and murdered Baskett, the trial court did not err in denying his motion for directed verdict.
Marital Infidelity
Ridling argues that the introduction of marital infidelity lacked a legitimate connection to the crime charged, amounted to an attack upon his character, and resulted in prejudicial error. In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of discretion. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003); Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). The trial court did not abuse its discretion and should be affirmed.
During cross-examination of Ridling, the State brought up the topic of marital infidelity. Ridling’s counsel objected, but the trial court overruled. Ridling argues that the evidence introduced at trial had no relevance for the offense he was charged. Ridling admitted an affair, “but the State inquired into specific aspects of the affair, and how his former wife found out about it.” According to Ridling, this line of questioning had nothing to do with his credibility, but amounted to “smearing” his character. Barnett v. Commonwealth, 763 S.W.2d 119 (Ky. 1988). Ridling asks this court to adopt the rulings from Barnett, a Kentucky case, and find this type of evidence, with limited exceptions, to be prejudicial.
Ridling opened the door to the topic by discussing the matter on direct examination, and he cannot later object to being cross-examined on the subject. Newman v. State, 353 Ark. 258, 106 S.W.3d 438. During direct examination, Ridling testified that “[o]n the afternoon of the 4th, Lisa was asking me where I’d been in a jealous way. Like a jealous wife thinking her husband was having an affair or something. . . Lisa was the other woman at one point. I felt like Lisa was suspicious of me all the time.” Because Ridling brought up the issue of martial infidelity during direct examination, he cannot now complain about being cross-examined on it.
Daubert
Ridling argues that the trial court erred in ruling that Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), has not been adopted in Arkansas, and as a result, he was prejudiced by evidence that was introduced without a proper foundation.
Bobby Humphries, latent fingerprint examiner for the Arkansas State Crime Laboratory, was declared an expert at Ridling’s trial. Ridling’s counsel was allowed to question Humphries under Ark. R. Evid. 702 regarding his qualifications. Outside the presence of the jury, Humphries testified that he had previously been permitted to give similar expert testimony in courts in Arkansas and in Texas. According to Humphries, the method of photographic comparison was accepted in the scientific community, that he had personally performed the technique for six years, and that he was taught that process at the Crime Laboratory. Humphries commented that in the course of his employment he would compare actual, recovered items of evidence to items depicted in photographs. The State moved to have Humphries declared an expert, Ridling’s attorney objected, and the trial court overruled the objection.
Bobby Humphries testified that pictures of an axe handle taken while conducting a search warrant at Ridling’s home prior to his arrest, matched the handle of the axe that was later found at the area where Baskett’s bones were found. Humphries obtained a photograph depicting the axe handle in Ridling’s shed and converted it to a 1:1 scale, black and white photograph. He then took his own photograph of the axe handle found near Baskett’s remains and converted it to a 1:1 scale, black and white photograph. Humphries examined each to see whether wear patterns, paint spatters, size, grain, and the like matched.
In overruling Ridling’s objection, the trial court opined that although mentioned in several opinions by this court, the Daubert rule had not been adopted in Arkansas. Rule 702 of the Arkansas Rules on Evidence entitled “Testimony of Experts” reads:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
The rule expressly recognizes that an expert’s testimony may be based on experience in addition to knowledge and training. In Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court established an inquiry to be conducted by the trial court when faced with the admissibility of certain expert testimony. In Farm Bureau Mutual Insurance Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000), this court adopted Daubert and held that a trial judge must determine at the outset whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. Farm Bureau Mut. Ins. Co. v. Foote, supra. This inquiry entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue. Id. A primary factor for a trial court to consider in determining the admissibility of scientific evidence is whether the scientific theory can be or has been tested. Other factors include whether the theory has been subjected to peer review and publication, the potential error rate, and the existence and maintenance of standards controlling the technique’s operation. It is also significant whether the scientific community has generally accepted the theory.
Ridling argues that the trial court never went into the Daubert analysis, because it was under the mistaken belief that analysis had not been adopted in Arkansas. According to Ridling, there was no scientific foundation laid, therefore his recognition as an expert put a considerable amount of weight on his opinion.
However, the technique, as the State argued, involved “the hardly novel act of examining two photographs for similarity.” Moreover, the predicate for testimony concerning Humphries’s examination was laid outside the jury’s presence by his testimony that his technique was accepted by the scientific community, had been used by him personally for six years, had been used in this State for nearly two decades, and had been accepted as reliable by courts in this State and Texas.
The trial court did err in commenting that Daubert had not been adopted by Arkansas courts, however it was harmless error, and the decision overruling the objection to Humphries’s testimony is affirmed.
“Crime Scene”
For his sixth point on appeal, Ridling argues that the use of “crime scene,” improperly negates the presumption of innocence during a trial when the defense is that no crime has been proven. Ridling cites to several cases from other states where courts have dealt with the use of the word “victim,” and ruled that such use is inconsistent with the presumption of innocence. Jackson v. State, 600 A.2d 21 (Del. 1991); Allen v. State, 644 A.2d 982 (Del. 1994); Veteto v. State, 8 S.W.3d 805 (Tex. App. 2000); State v. Wright, 02CA008179, 2003 WL 21509033 (Ohio App. 2003). Finally, Ridling contends that the continual reference to the word “crime scene” was prejudicial when the jury was considering whether there was even a crime to begin with.
Ridling did not preserve this point for appeal because he did not make a timely objection. To preserve a point for appeal, an objection must be made at the first opportunity. Cummings v. State, 353 Ark. 618, 110 S.W.3d 272; Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003); Berger v. State, 343 Ark. 413, 36 S.W.3d 286 (2000). We have stated that if a contemporaneous objection is not made during a jury trial, the proverbial bell will have been rung and the jury prejudiced. Id.; Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998).
Here, the first opportunity to make an objection at trial was when the State was examining Marc Sullivan, who testified that he made a videotape from Interstate 30 at Hope to the crime scene at the Wildlife Management Area. He commented that the total mileage from Interstate 30 to the “crime scene” was 7.1 miles. Sullivan went on to give a more detailed instruction of the roads he took and the mileage on each of those roads. Sullivan then stated that “If you followed those directions you should end up right here. There are vehicles parked up here at the top where you enter the crime scene.” Ridling’s counsel then requested a bench conference where he objected to the State referring to the area as a crime scene. The trial court overruled the objection. Ridling’s claim is barred because he did not object to the first use of “crime scene,” but waited until after Sullivan said it again. Regardless, the admission of such a statement constitutes harmless error.
Husband/Wife Privilege
For his final point on appeal, Ridling challenges five statements made by his wife, Lisa Graf, that were introduced over his objection. These statements are:
1. Lisa Graf questioned Ridling about whether he did anything to Baskett. Lisa told Ridling that she had told investigators some lies, specifically that they had not seen Baskett. Ridling responded by saying “that’s fine. We haven’t.” Lisa further recalled Ridling saying, “once you tell the police something, never change your story.”
2. On or about August 4, 2002, Lisa asked why Ridling’s shoes were wet. Ridling responded that he went jogging, but Lisa asked several other follow-up questions.
3. When Lisa indicated that she was going to give a statement to Bobby Jordan, Ridling stated, “No, you’re not. You didn’t do anything wrong and they just need to leave you alone.”
4. Ridling wrote a letter to Lisa, saying, “I can do better with you on my side, especially about Sunday, August 4th. You made it sound like I was gone four hours and come home guilty of something.”
5. In another letter, dated November 26, 2002, Ridling wrote, “I let you influence me too much. August 3rd you went crazy, but it won’t happen again.”
According to Ridling, all of the communications were protected under Ark. R. Evid. 504 and do not fall under any exception. Ark. R. Evid. 504 provides in part:
(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.
(b) General Rule of Privilege. 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.
Statements made by one spouse to the other that are for the purpose of establishing an alibi are intended for publication to investigators and are not confidential. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991). A spouse’s direction to another spouse to communicate a fabricated story to the police is intended for disclosure to a third-party and, hence, is not a privileged communication. David v. State, 286 Ark. 205, 691 S.W.2d 133 (1985).
In this case, the trial court did not abuse its discretion by overruling Ridling’s objection to the above statements and the comments contained in the letters. The statements were intended for Lisa to fabricate a story, to continue the fabrication, or to establish an alibi. The statements were not privileged.
Rule 4-3(h)
In compliance with Ark .Sup. Ct. R. 4-3(h), the record has been examined for adverse rulings objected to by Ridling but not argued on appeal and no prejudicial error is found.
In view of the physical and substantial circumstantial evidence presented to the jury, who determined his guilt and recommended his sentence, we cannot say that the trial court committed error in this case. Accordingly, we find no reversible error in the trial court’s rulings.
Affirmed.
Corbin, J., not participating. | [
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Per Curiam.
Automated Conveyer Systems (Automated) petitions this court for a writ of prohibition alleging that the Crittenden County Circuit Court is without jurisdiction to hear this case because the exclusive remedy for an injury sustained in the course and scope of employment is provided under the Worker’s Compensation Act. On January 21, 2004, Calvin Dooley filed a complaint based in negligence in the circuit court alleging that he suffered a gradual onset neck injury in the course and scope of employment. Dooley’s employer Automated brought a motion to dismiss alleging that pursuant to Ark. Code Ann. § ll-9-105(a)(Repl. 2002), Dooley had sought damages under the Worker’s Compensation Act and was limited to that remedy. The circuit court denied the motion to dismiss, and Automated now seeks a writ of prohibition.
This petition for a writ of prohibition will be treated as a case. We order the parties to brief the following issues:
1. Whether the Worker’s Compensation Act remains the exclusive remedy for all non-intentional injuries arising out of the course and scope of employment;
2. Whether amendments to Ark. Code Ann. § ll-9-704(c)(3) (Repl. 2002), which states that “administrative law judges, the commission, and any reviewing court shall construe the provisions of this chapter strictly,” affect the analysis in this case;
3. Whether the definition of “accidental” in Ark. Code Ann. § ll-9-102(4)(A)(Repl. 2002) excludes the injury in the present case from the Worker’s Compensation Act; and
4. Whether the injury in the present case is one that may be brought in negligence against Automated.
The appropriate briefing schedule will be established by the clerk of the court. | [
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LARRY D. VAUGHT, Judge
11 Mark Lewis appeals the Clay County Circuit Court’s order revoking his probation. His only argument on appeal is that the trial court erred in not ordering, sua sponte, a competency evaluation. We affirm.
In May 2014, Mark pled guilty to furnishing prohibited articles pursuant to Arkansas Code Annotated section 5-54-119 (Supp. 2013) and was sentenced to five years’ probation. Mark was ordered to pay $1,170 in fines, fees, and costs at the rate of $75 per month. The State filed a petition for revocation of Mark’s probation in 2015, followed by an amended petition that alleged he had violated the terms and conditions of probation by failing to make any payments as ordered and having committed the crimes of disorderly conduct, criminal mischief, and two counts of aggravated assault on a family member.
| ¾At the revocation hearing, Della Jackson testified that she worked for the Eastern District of Clay County collecting payments for the circuit court. She stated that Lewis had never made any payments.
Norma Jean Lewis testified that she was Mark Lewis’s mother. She testified that, during the time period relevant to this case, Mark resided in her home, as did her two grandsons who were fourteen and three years old. She stated that on May 3, she had awakened to noises in the house and had found her grandson’s “pillow pet” in the hallway “in shreds.” She then found Mark- in his bedroom -speaking gibberish. She went to the living room where she found her leather sofa cut up .and stuffing strewn around the room. There was also a picture knocked off the wall, and the frame was broken. She testified that Mark had denied destroying the sofa, but she did not believe him because there was no one else in the house at the time except her three-year-old grandson. She stated that she went to the sheriffs office and reported the incident and told them that she wanted Mark out of her house. She stated that she had not been threatened or harmed by Mark. She also stated that no one else in the home used methamphetamine except possibly Mark, but. then explained on cross-examination that her other son, Jason, who previously used the room Mark was using, had a history of methamphetamine usage.
Officer Sam Poole testified that when he arrived at Norma Lewis’s home, the living room and bedroom were in “shambles” and that he observed a knife in the couch cushion. He also stated that Mark was talking “out of his head.” Poole testified that, after he arrested Mark, Ms. Lewis brought two spoons and a syringe to the station, alleging' that they must belong to Mark.
IsMark Lewis testified that he.understood .the nature of the revocation proceedings and that he did not have to testify on his own behalf. He admitted cutting up the leather sofa, stating that he was looking for a piece of paper that contained information about a girl who had been missing since approximately 1988 or 1989; Mark reasoned that the couch had been purchased for less than $200 approximately nine years ago and was not in good condition and that he could replace it after he cut it up looking for the piece of paper. He explained that he had then accidentally knocked the picture off the wall while trying to clean up.
Mark denied that the methamphetamine was his, stated that his brother had been using that room, and stated that he had asked for a drug test that he never received. He then testified about the events surrounding his underlying charge for furnishing a prohibited item and discussed his efforts to obtain a lawyer for that charge. The State objected to the relevance of the testimony, and the court sustained the objection.
At one point in his testimony, Mark spontaneously stated, “You know, I’m off my meds.” He testified he had been on Celexa and Adderall but that approximately a month before the hearing he had stopped receiving his medications while incarcerated.
Mark attributed both the drug paraphernalia and the messy condition of the house to his brother, who had been staying in Mark’s bedroom a few months prior to the incident and. who had a history of methamphetamine use.
Mark then testified as to his previous convictions and criminal history, including forgery convictions and methamphetamine possession. He stated that he had three felony convictions and four convictions total. He acknowledged that he was a habitual offender. Mark testified that he had signed the terms and conditions of his probation in 2013, that they had|4 been presented to him by his attorney, and that they had included a payment schedule for his required payments. He then testified about previous proceedings before a different judge in a different case, in which he also apparently had a payment schedule.
In closing, Mark’s attorney stated that Mark had admitted he had destroyed the sofa but that he had thought the paper he was looking for was more important than the sofa and that he could replace the sofa. He also argued that the new offense, if Ms. Lewis’s testimony was believed, would only be a misdemeanor.
The court found that Mark had violated the terms and conditions of his probation by (1) failing to pay his fines, fees, and costs as ordered; (2) destroying his mother’s couch; and (3) possessing drug paraphernalia. The court sentenced Mark to sixty months’ imprisonment followed by twenty-four months’ SIS. The court then entered a written sentencing order, and Mark filed a timely notice of appeal.
A circuit court may revoke a defendant’s probation prior to expiration if the court finds by a preponderance of the evidence that the defendant inexcusably failed to comply with a condition of his or her probation. Ark. Code Ann. § 16-93-308 (Supp. 2015); Miller v. State, 2011 Ark. App. 554, at 11, 386 S.W.3d 65, 71. Evidence that would be insufficient for a new criminal conviction may be sufficient for the revocation of probation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). The State bears the burden of proof, but it need only prove that the defendant committed one violation of the conditions of probation. Major v. State, 2012 Ark. App. 501, at 4, 2012 WL 4194661. In Ferguson v. State; 2016 Ark. App. 4, at 3, 479 S.W.3d 588, 590, we explained that “[o]n appeal, we will not'reverse the trial court’s decision to-revoke unless it is clearly erroneous, or clearly against the preponderance of the evidence.” Moreover, we must defer to the superior position of the trial court to determine questions of credibility and the weight to be given the evidence. Id., 479 S.W.3d at 590.
Mark’s only point on appeal is that the trial court erred in not questioning, sua sponte, his competency to stand trial and not ordering a competency evaluation. Mark acknowledges that he never raised this issue below, but he argues that we should address it on appeal because the trial court had an obligation to raise it sua sponte even if his counsel failed to do so. Mark relies on a short line of cases applying federal due-process analysis and finding that it violates a defendant’s Fourteenth Amendment due-process rights if the court fails to sua sponte raise the issue of competency when there is evidence raising a reasonable doubt as to his fitness to proceed. Speedy v. Wyrick, 702 F.2d 723 (1983); Porta v. State, 2013 Ark. App. 402, at 5-6, 428 S.W.3d 585, 588. In Porta, we explained that
[a] contemporaneous objection is generally required to preserve an issue for appeal, even an issue of constitutional dimensions. Anderson v. State, 353 Ark. 384, 108 S.W.3d 592 (2003). Citing Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), we explained in Vilayvanh v. State, 2012 Ark. App. 561, 2012 WL 4833805, that it is possible, under very rare and extreme circumstances, that a trial court may be obliged to intervene sua sponte to correct a serious problem. Once such circumstance occurs when there is a reasonable doubt about the defendant’s competency to stand trial, as discussed in Jacobs v. State, 294 Ark. 551, 553-54, 744 S.W.2d 728, 729-30 (1988):
The conviction of an accused person while he is legally incompetent violates due process. Pate v. Robinson, 383 U.S. 375, [86 S.Ct. 836, 15 L.Ed.2d 815] (1966). See also Ark. Code Ann. § 5-2-302 (1987).
Porta, 2013 Ark. App. 402, at 5-6, 428 S.W.3d at 588 (quoting Pate v. Robinson, 383 U.S. 375, 86 S.CT. 836, 15 L.Ed.2d 815 (1966)). Neither Speedy nor Porta was a revocation case. |fiHowever, although in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, he is entitled to due process. Ryan v. State, 2016 Ark. App. 105, at 5, 484 S.W.3d 689, 693 (citing Goforth v. State, 27 Ark. App. 150, 152, 767 S.W.2d 537, 538 (1989)). Because due process is a flexible concept, each particular situation must be examined in order to determine what procedures are constitutionally required. Hill v. State, 65 Ark. App. 131, 132, 985 S.W.2d 342, 342 (1999).
Pursuant to Porta, a due-process evidentiary hearing is constitutionally compelled whenever there is substantial evidence that the defendant may be mentally incompetent to stand trial.
“Substantial evidence” is a term of art. “Evidence” encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is “substantial” if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the-ultimate issue: Is the defendant competent to stand trial? Its sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evi dence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue.
Porta, 2013 Ark. App. 402, at 6, 428 S.W.3d 585, 588 (citing Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). Although the Supreme Court has not prescribed exact standards as to the quantum or nature of the evidence necessary to require a competency hearing, the Court has indicated that consideration of evidence relating to “a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial” is appropriate. Id. at 6, 428 S.W.3d at 588.
|7In this case, as in Porta, the court was not presented with substantial evidence calling into question Mark’s competency to stand trial. In order to be competent to stand trial, a defendant must have the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense. Porta, 2013 Ark. App. 402, at 6, 428 S.W.3d at 588. Here, while Mark’s stated reasons for destroying his mother’s sofa and his denials of wrongdoing were unpersuasive, they were not, as his counsel asserts, “incoherent ... word salad.” While Mark mentioned that he was “off his meds,” Celexa and Adderall, the court was presented with no evidence or testimony regarding the effect of those medications. His behavior, if odd, did not rise to the level of irrational; he testified coherently, provided direct responses to each question, stated the reasons for his actions, and provided alternative explanations for some of the State’s allegations against him. He stated- that he had received the teims and conditions of his probation, had gone over them with his attorney, and that he understood the nature of the current revocation proceedings. There is no evidence to suggest incompetency other than the fact that he had an unusual speech pattern, rambled, and testified to irrelevant matters. This is insufficient, under Porta, to require the court to sua sponte halt the proceedings and order a competency evaluation. Therefore, Mark cannot avail himself of the narrow exception established in Porta and Speedy to the general rule that the appellate court will not address arguments raised for the first time on appeal. Gilliland v. State, 2010 Ark. 135, at 10, 361 S.W.3d 279, 285. Because Lewis failed to raise the issue of competency below, and because the record does not support the conclusion that the trial court was obligated to raise it sua sponte, we affirm.
| ^Affirmed.
Kinard and Gruber, JJ., agree.
. The revocation petition and the amended petition did not allege that Mark had violated the terms and conditions of his probation by using or possessing drugs or drug paraphernalia. However, the court included such a finding in its ruling from the bench. Mark neither made any argument to the trial court about the fact that the petition contained no drug allegations nor argued this point on appeal. Therefore, we do not address it. | [
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Jim Hannah, Chief Justice.
Appellant Stacey Poindexter appeals from a divorce decree entered by the Garland County Circuit Court that granted a motion by appellee Ryan Poindexter to change the parties’ infant son’s name from Seth Malcolm Poindexter to Seth Joseph Poindexter. Stacey argues that the circuit court erred in finding that the child’s middle name should be changed because Ryan failed to show that it would be in the child’s best interest to change his middle name. This case was certified to this court as an issue requiring clarification or development of the law; hence, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(b)(5). We reverse and remand.
Facts
Stacey filed a complaint for divorce on February 19, 2003. In her complaint, she stated that she and Ryan had one child, Noah Elliot Poindexter, and that she was pregnant with another child due on March 21, 2003. In her complaint, Stacey requested, among other things, custody of the children and support. Subse quently, Stacey was awarded temporary custody of Noah, and Ryan was given alternating weekend visitation with Noah. The circuit court also ordered that Ryan begin paying child support for Noah and, beginning the Friday after the second child was born, Ryan was to pay child support for both children.
On March 25, 2003, Stacey gave birth to a second child, whom she named Seth Malcolm Poindexter. Subsequently, on June 22, 2003, Ryan filed a Petition to Establish Paternity, alleging that although the second child was born during the marriage, he might not be the child’s father. The circuit court issued an order providing that Stacey, Ryan, and Seth were to submit to paternity testing. The results of the DNA test, filed with the circuit court on August 25, 2003, established that the probability that Ryan was the father of Seth was 99.995%.
At the final divorce hearing conducted on September 10, 2003, Ryan made his first request that the circuit court change the child’s name from Seth Malcolm Poindexter to Ryan Joseph Poindexter. At the hearing, Ryan testified that prior to the birth of the child, he and Stacey had agreed that the child would be named Ryan Joseph Poindexter. Ryan related that the parties agreed that the child’s middle name would be Joseph, in honor and remembrance of Ryan’s deceased brother Mark Joseph Poindexter.
Stacey denied that she and Ryan had ever agreed to name the child Ryan Joseph Poindexter. In addition, she stated that the significance of the name Malcolm was in honor of her grandfather, who was also named Malcolm. Ryan admitted that he and Stacey had discussed other names for the child, including the name Seth Malcolm; however, he testified that he and Stacey had agreed on the name Ryan Joseph. Ryan stated that in the event the circuit court was inclined to change only one name, he would request that the circuit court change the child’s middle name from Malcolm to Joseph.
At the hearing, Ryan denied Stacey’s claims that he had physically abused her and their son Noah. Ryan admitted that he had only seen Seth twice, the day the child was born and the day of the paternity testing, and he acknowledged that Stacey had offered other times for visitation. However, Ryan testified that he declined to visit Seth because the visits would take place at Stacey’s parent’s home, where he would “get harassed” because Stacey’s parents were “sarcastic” and “rude” to him.
At the conclusion of the hearing, the circuit court ordered that the child’s name be changed from Seth Malcolm Poindexter to Seth Joseph Poindexter. The circuit court made no finding concerning whether the name change would be in the best interest of the child.
Name Change of a Minor
As an initial matter, we note that this court has not had occasion to address disputes concerning the first names and middle names of minors. However, we are guided by our cases involving disputes over a child’s surname. Ultimately, the controlling consideration in any change in status is whether the change is in the child’s best interest. See Huffman v. Fisher, 337 Ark. 58, 987 S.W.2d 269 (1999) (Huffman I). In Huffman I, we held that when considering a petition to change the surname of a minor child, the circuit court should consider at the least the following factors to determine whether the surname change would be in the child’s best interest:
(1) the child’s preference; (2) the effect of the change of the child’s surname on the preservation or development of the child’s relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed surnames; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and (6) the existence of any parental misconduct or neglect.
Huffman I, 337 Ark. at 68, 987 S.W.2d at 274. Where a full inquiry is made by the circuit court of the factors set out above and a determination is made with due regard to the best interest of the child, the circuit court’s decision will be upheld so long as it is not clearly erroneous. Huffman I, 337 Ark. at 69, 987 S.W.2d at 274.
We now turn to the circuit court’s rationale for changing the child’s middle name in the present case. At the hearing, subsequent to the circuit court’s announcement that the child’s middle name would be changed, Stacey’s counsel made the following request:
Your Honor, the plaintiff testified as the name Malcolm being a family name and her grandfather’s name, and we just ask that the Court reconsider allowing her to insert — add the name Joseph but leave Malcolm so that the child’s name would be Seth Joseph — even put Joseph first Malcolm — Poindexter, so that the grandfather’s name —
The circuit court denied the request, stating:
Actually, I had thought about that, as a hyphen type name, I really did think about that. Of course, I also thought about changing the child’s name to David, because I’ve always liked that name. And I even — you all, I don’t care ifyou tell your clients or not, I even said Michael or Susan would be — I mean, that’s what we’re talking about. . . .
. .. Yeah, it’s important, I understand. You want the baby named after your grandpa. I can understand. You want the baby named after your brother. The two of you should be able to sit down and work that out, but you didn’t and you couldn’t. You left it to me, a complete stranger, to make that decision for your child. You left it to the people of the State of Arkansas. Is there a good reason? No, there’s not. Malcolm, Joseph, David, you know. Yeah, what tipped the balance, to be honest with you, it’s probably because of the deceased brother. I can’t think of any other good particular reason to name a kid Joseph, other than that’s my son’s name, your son’s name. And why I didn’t do the hyphen, ’cause I thought of that. I thought that’s the easy way out for me, you know, give him both names. I’ll tell you what would happen. You want to know what would happen? I guarantee you, and you lawyers know this is true. You’ve done enough of this. One of ’em would call him Malcolm, and the other one would call him Joe. They would, because they’re not going to rise above this, or are they?
* t- t-
It is apparent that the circuit court failed to consider whether the name change was in the best interest of the child. Accordingly, we reverse and remand. In determining whether the name change is in the child’s best interest, the circuit court should consider the factors established in Huffman I. We are mindful of the fact that some of the Huffman I factors refer specifically to the child’s surname. When considering those factors, the circuit court should substitute the word “name” for the word “surname.” Thus, in cases involving disputes over a child’s first name or middle name, the circuit court, in determining the child’s best interest, should consider at least the following factors:
(1) the child’s preference; (2) the effect of the change of the child’s name on the preservation and development of the child’s relationship with each parent; (3) the length of time the child has borne a given name; (4) the degree of community respect associated with the present and proposed names; (5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed name; and (6) the existence of any parental misconduct or neglect.
Reversed and remanded.
In this case, the child’s first name is not at issue. Ryan does not appeal the circuit court’s decision not to change the child’s first name from Seth to Ryan.
We note that the court of appeals recently relied upon the Huffman I factors to address the issue of changing a child’s entire name. See Sheppard v. Speir, 85 Ark. App. 481, 157 S.W.3d 583 (2004). | [
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PER CURIAM
hOn December 14, 2015, appellant Ronnie Johnson pleaded' guilty to two counts of robbery and was sentenced to an aggregate sentence of 480 months’ imprisonment in the Arkansas Department of Correction. On January 14, 2016, Johnson filed a pro se petition for writ of error coram nobis, a petition for correction of illegal sentence in an illegal manner, a motion for evidentiary hearing, and a notice of fraud/fraudulent practices, alleging that he was induced, misled, misguided, and misinformed' by counsel into pleading guilty and that counsel failed to present a defense and did not “test the State’s case[.]” Specifically, Johnson claimed that counsel was ineffective for failing to obtain video-surveillance evidence of one of the two robberies taken from an E-Z Mart and that he would not have pleaded guilty had counsel not “committed the prejudicial errors that ha[ve] tainted his case.” He further argued that, because he was induced into pleading guilty, his sentence is illegal. The trial court denied Johnson’s request for relief, finding that Johnson failed to state how he was induced into pleading guilty; that there was no proof of coercion |2offered; that Johnson was not entitled to an eviden-tiary hearing; and that Johnson’s sentence was not illegal. Now before us is Johnson’s motion for transcribed record and for extension of time to file a brief.
iWhen it is clear from the record that the appellant cannot prevail if an appeal of an order that denied postconviction relief were permitted to go forward, we dismiss, the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012 Ark. 91, 2012 WL 664259. As it is clear from the record that Johnson could not prevail on appeal, the appeal is dismissed. The dismissal of the appeal renders the motion moot.
The standard of review of an order entered by the trial court on a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Newman v. State, 2014 Ark. 7, at 13-14, 2014 WL 197789. An abuse of discretion occurs when the trial court acts arbitrarily or groundlessly. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852. The trial court’s findings of fact, on which it bases its decision to grant or deny the petition for writ of error co-ram nobis, will not be reversed on appeal unless clearly erroneous or clearly against' the preponderance of the evidence. Newman, 2014 Ark. 7, at 13-14. There is no abuse of discretion in the denial of error-coram-nobis relief when the claims in the petition were groundless. Nelson, 2014 Ark. 91, 431 S.W.3d 852.
A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coramnobis proceedings are attended by a strong | ¡¡presumption that the judgment of conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Neuman v. State, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available to address certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
While Johnson attempts to couch his video-surveillance claim in terms of a coerced-guilty plea, which would provide a basis for relief in a coram-nobis ' proceeding, the actual basis for his claim is ineffective assistance of counsel with the underlying argument that, due to counsel’s deficiency in not obtaining the E-Z Mart video surveillance, he would not have pleaded guilty to robbery. This court has repeatedly held that ineffective-assistance-of-counsel claims are not cognizable in error-coram-nobis proceedings and that such ^proceedings are not a substitute for raising ineffective-assistancé-of-eounsel claims under our postconviction rule, Arkansas Rule of Criminal Procedure 37.1. White v. State, 2015 Ark. 151, at 4, 460 S.W.3d 285, 288.
Although Johnson contends he was coerced by his counsel’s statement to “take this deal or else” and that counsel “induced [him] to affirmatively answer! ] that he was ‘satisified[ ]’ with the services of ‘counsel ]’,” he did not allege that he suffered any specific mistreatment. See Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. Johnson did not demonstrate that his plea was obtained through intimidation, coercion, or threats because the coram-nobis petition did not allege that the plea was the result of fear, duress, or threats of mob violence as previously recognized by this court as cognizable for coram-nobis relief. Gonder v. State, 2016 Ark. 140, 489 S.W.3d 135, reh’g denied (Apr. 21, 2016); Noble v. State, 2015 Ark. 141, 460 S.W.3d 774. Simply put, Johnson’s allegations do not rise to the level of coercion, which is defined as “compulsion of a free agent by physical, moral, or economic force or threat of physical force.” White v. State, 2015 Ark. 151, at 5, 460 S.W.3d 285, 288-89 (quoting Black’s Law Dictionary 315 (10th ed. 2014)). Accordingly, the trial court properly denied coram-nobis relief.
To the extent Johnson argued that his judgment was illegal on its face, the claim also fails. Fenian v. State, 2015 Ark. 424, at 2, 2015 WL 7066411 (per curiam) (An appeal from an order that denied a petition for postconviction relief, including a petition under Arkansas Code Annotated | ^section 16-90-111, will not be permitted to go forward where it is clear that there is no merit to the appeal.). There is a provision in section 16-90-111 that allows the trial court to correct an illegal sentence at any time because a claim that a sentence is illegal presents an issue of subject-matter jurisdiction. Williams v. State, 2016 Ark. 16, 479 S.W.3d 544 (per curiam). While the time limitations on filing a petition under section 16-90-lll(a)(b)(l) on the grounds that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c) (2015), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282 (per curiam).
Johnson contended his sentence was illegal on its face because he was induced by his counsel to plead guilty and because counsel was ineffective for failing to secure the E-Z Mart surveillance video. The claims advanced by Johnson in his petition did not allege an illegal sentence that is jurisdictional in nature; rather, the grounds for relief were the type to have been raised at trial, on appeal, or, to the extent the claims were intended as allegations of ineffective assistance of counsel, in a timely filed petition for postconviction relief pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. Williams, 2016 Ark. 16, 479 S.W.3d 544. Furthermore, eonclusory allegations—such as Johnson’s claims regarding the E-Z Mart video surveillance or his counsel’s statement to “take this deal or else”—that are unsupported by facts and provide no showing of prejudice are insufficient to warrant postconviction relief. See Chatmon v. State, 2016 Ark. 126, at 7, 488 S.W.3d 501, reh’g denied | «(April 21, 2016). Based on the foregoing, the appeal is dismissed, rendering the motion for transcribed record and extension of time to file brief moot.
Appeal dismissed; motion moot.
. Although the trial court’s order states that Johnson entered a plea of guilty to two counts of robbery and one count of theft of property, the January 4, 2016 file-marked sentencing order indicates that Johnson pleaded guilty to two counts of robbery and that one count of aggravated robbery and three counts of theft of property were nolle prossed.
. Johnson pleaded guilty to two counts of ■ robbery, only one of which occurred at the EZ Mart.
. When a petitioner under the Rule enters a plea of guilty, the Rule 37.1 petition must be filed in the trial court, pursuant to Rule 37.2(c)(i), within ninety days of the date of entry of judgment. | [
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Per Curiam.
Appellant Shane Calaway appeals the denial of sanctions under Ark. R. Civ. P. 11 (2004) against Appellee Barbara Dickson. This case was submitted for decision on January 27, 2005. Upon reviewing the materials included in Mr. Calaway’s abstract and addendum, it is apparent that the hearing held on appellant’s motion for sanctions is not abstracted in accordance with our rules. Instead, a copy of the transcript from the Rule 11 hearing is improperly included in the addendum. Our rules clearly state that the addendum shall contain “true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal.” Ark. Sup. Ct. R. 4—2(a)(8) (2004). The appellant’s abstract of the transcript of testimony of witnesses and colloquies between the court and counsel should be included in the abstract. Ark. Sup. Ct. R. 4-2(a)(5).
Supreme Court Rule 4-2(b)(3) explains the procedure to be followed when an appellant has failed to supply this court with a sufficient brief. The rule provides:
Whether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonably or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4—2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
Ark. R. Sup. Ct. 4-2(b)(3) (2004).
We hereby order the appellant to submit a substituted brief that contains an abstract of the hearing denying his motion for Rule 11 sanctions. Appellant is directed to file the substituted brief within fifteen days from the entry of this order. Mere modifications of the original brief will not be accepted. See Ark. Sup. Ct. R. 4-2(b)(3). According to Rule 4-2(b)(3), if appellant fails to file a complying abstract and addendum within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.
After service of the substituted brief on the appellee, the appellee shall have an opportunity to file a responsive brief in the time prescribed by the Supreme Court Clerk, or to rely on the appellee’s brief previously filed in this appeal.
Rebriefing ordered. | [
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RITA W. GRUBER, Judge
b This is the second appeal by appellant Florida Oil Investment Group, LLC, (Flor ida Oil) in a lawsuit brought by appellee Goodwin & Goodwin, Inc. (Goodwin), to foreclose a materialmen’s lien on property owned by Florida Oil. In the first appeal, Florida Oil appealed the circuit court’s order foreclosing the materialmen’s lien of Goodwin and awarding attorney’s fees .to Goodwin. We reversed the circuit court’s order—holding that the lien was invalid and, consequently, that attorney’s fees were not authorized—and remanded for proceedings consistent with our opinion. Florida Oil Inv. Grp., LLC v. Goodwin & Goodwin, Inc., 2015 Ark. App. 209, 463 S.W.3d 323. On remand, Florida Oil filed a motion for attorney’s fees under Arkansas Code Annotated section 18-44-128(b)(Repl. 2015), which the circuit court denied. The sole issue on appeal is whether the circuit court erred in denying the motion. We hold that thé circuit court did err in denying Florida Oil’s fee request, and | ¿we reverse its order,
For purposes of this appeal, the basic facts are these. Goodwin, a general contractor, performed work that included installing utilities, roofing, plumbing, and landscaping oh certain property in Sebastian County referred to herein, and in our previous opinion, as the Fort Chaffee site. At the time the work was done, Fort Chaf-fee Redevelopment Authority (FCRA) owned the property. When Goodwin had completed the work and had been paid only part of the bill, despite its demand for complete payment, it served a notice of intent to file lien on FCRA—and on the entity for whom it allegedly performed the work. On February 23, 2012, Goodwin filed a lien for the unpaid balance on the Fort Chaffee site. On May 17, 2012, Florida Oil purchased the property from FCRA, and on March 1, 2013, Goodwin filed this lawsuit. The circuit court entered judgment on May 13, 2014, foreclosing the lien against the Fort Chaffee site and awarded attorney’s fees to Goodwin under Ark. Code Ann. § 18-44-128(a). We reversed the- circuit court’s judgment on April 1,2015.
After we remanded the case to the circuit court, Florida Oil filed a motion for attorney’s fees and costs pursuant to Ark. Code Ann. § 18-44-128(b) as the prevailing party in the lawsuit. The relevant statute provides in its entirety as follows:
(a) When any contractor, subcontractor, laborer, or material supplier who has filed a lien, as provided for in this chapter, gives notice thereof to the owner of property by any method permitted under § 18-44-115(b)(5) and the claim has not been paid within twenty (20) days from the date of service of the notice, and if the contractor, subcontractor, laborer, or material supplier is required to sue for the enforcement of 13his or her claim, the court shall allow the successful contractor, subcontractor, laborer, or material supplier a reasonable attorney’s fee in addition to other relief to which he or she may be entitled.
(b) If the owner is the prevailing party in the action, the court shall allow the owner -a reasonable attorney’s fee in addition to any other relief to which the owner may be entitled.
Ark. Code Ann. § 18-44-128 (emphasis added). The' “owner” of property under this subchapter includes “the owner of the legal title to property.” Ark. Code Ann. § 18-44-106.
The circuit court found that section 128(b) does not authorize “every” owner who is successful in a suit brought to ■enforce a materialmen’s lien on its property to recover attorney’s fees. Rather, the circuit court determined that' section 128(b) refers only to those owners who received notice of intent to file lien before it was actually filed. Thus, according to the circuit court, since Florida Oil was not notified of the intent to file lien because it did not own the property at that time, Florida Oil is not an owner that can recover attorney’s fees under section 128(b). The court found this in spite of the fact that Florida Oil was the owner of legal title to the property at the time the lawsuit was filed, was the only defendant named in the lawsuit, and was the “prevailing party” in the lawsuit. The circuit court reasoned that an owner of property who purchases after a lien has been filed is on notice of the lien and thus “presumably” incorporates the risk of a lawsuit into its purchase price for the property.
The issue before this court is whether the circuit court properly construed section |4128(b). The correct application and interpretation of an Arkansas statute is a question of law, which this court decides de novo. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC, 2012 Ark. 157, 2012 WL 1222196, at *9, 400 S.W.3d 701, 707. It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Id. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Moreover, we construe lien statutes strictly, as they are in derogation of common law. Simmons First Bank of Ark. v. Bob Callahan Servs., Inc., 340 Ark. 692, 696, 13 S.W.3d 570, 573 (2000). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Id.
This court does not incorporate its view on public policy when it interprets a statute: those decisions are for the legislature when it enacts a statute. The myriad risks assumed by those involved in property-acquisition negotiations are also beyond the scope of this opinion. The sole issue before us is whether section 128(b) authorizes Florida Oil to recover attorney’s fees in this case. We hold that it does. In no uncertain terms, the statute provides, “If the owner is the prevailing party in the action, the court shall allow the owner a reasonable attorney’s fee[J” The statute does not limit recovery to those owners who received notice of the intent to file lien, to those who owned at the time the lien was filed, or to those who owned the property before the lawsuit was filed. It applies to an “owner” who is a “prevailing party.” We must construe the statute strictly, taking nothing as intended that is not clearly expressed. Simmons First Bank of Ark., 340 Ark. at 696, 13 S.W.3d at 573. Florida Oil is and has been the owner of the legal title to the Fort Chaffee site since the lawsuit was initiated. See Ark. Code Ann. § 18-44-106. There is no dispute that Florida Oil is the prevailing party. Thus, the court “shall allow” Florida Oil a reasonable attorney’s fee under section 128(b). Given our holding that Florida Oil is entitled to attorney’s fees under Ark. Code Ann. § 18-44-128, it is unnecessary to address its argument under Ark. Code Ann. § 16-22-308.
Accordingly, we reverse and remand for the circuit court to enter a judgment consistent with this opinion.
Reversed and remanded.
ABRAMSON and VIRDEN, JJ., agree.
. Goodwin had no formal agreement with this entity, and the entity had no interest in the Fort Chaffee site. See Florida Oil Investment Group, supra, for a further explanation of the underlying facts.
. Although Florida Oil did not request fees pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999) (as the prevailing party in a breach-of-contract action), the circuit court also found that fees were not recoverable under this statute. Florida Oil argues on appeal that fees are recoverable under either Ark. Code Ann. § 18-44-128 or Ark. Code Ann. § 16-22-308.
. We direct the circuit court to our supreme court's decision in Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990), for guidance in determining a reasonable attorney’s fee. | [
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Annabelle Clinton Imber, Justice.
Mary Rodriguez appeals from the Faulkner County Circuit Court’s order terminating her parental rights as to two of her children, Rosalinda and Imelda Rodriguez. We affirm the circuit court.
Rosalinda and Imelda are the children of Mary and Arturo Rodriguez. Arturo resides in Mexico, but Mary, a citizen of the United States who was born in Ohio, currently resides in Damascus, Arkansas. On August 24, 2001, the Arkansas Department of Human Services (DHS) placed a 72-hour hold on Rosalinda and Imelda for their safety and protection due to the possible threat of Mary returning to Mexico with the children. Rosalinda and Imelda were removed from Mary’s custody after DHS filed a petition for emergency custody. An affidavit by a DHS employee averred that Mary was not providing the children with a proper education, as Mary home schooled the children with a questionable curriculum that she called “Phonics.” Additionally, the affidavit stated that the house was “full of fleas, mice, rodents, [and other] animals, and was piled with trash,” and one child suffered an ear infection that remained untreated because Mary was afraid of taking the child to the doctor for fear of the records being used by DHS to trace and locate the children.
On August 27, 2001, the Juvenile Division of the Faulkner County Circuit Court entered an emergency order, placing custody of the children with DHS. Following Mary’s waiver of a probable cause hearing, the circuit court entered a probable cause order on September 25, 2001. In the order, the court awarded temporary custody to Paula Sullivan, the children’s older half-sister; directed DHS to develop an appropriate case plan for the children and family; and authorized DHS to arrange supervised visitation with Mary and to provide a Spanish interpreter during the visits so as to assure that no inappropriate communications occurred between Mary and the children. In a review order entered on December 5, 2001, the circuit court ordered Mary to undergo a psychological evaluation by Dr. Paul DeYoub, a clinical psychologist. Another review order dated February 27, 2002, found that the case plan, services, and placement of the children met their needs and interests. In addition, the court concluded that DHS no longer had to provide a Spanish interpreter for visitation, that DHS was relieved of providing services to Mary other than visitation, and that Mary was prohibited from making phone calls to Paula Sullivan’s home where the children resided. A permanency planning hearing was scheduled for April 9, 2002. On August 30, 2002, following its determination that DHS had complied with the terms of the case plan by making reasonable efforts to deliver reunification and permanency services to Mary, the circuit court accepted DHS’s amended permanency plan to terminate her parental rights. Shortly thereafter, on September 17, 2002, DHS petitioned the circuit court to terminate Mary’s parental rights; but, meanwhile, the circuit court placed the children in the temporary custody of relatives who reside in other states. On November 22, 2002, the circuit court terminated the parental rights of Mary and Arturo.
Mary initially appealed to the Arkansas Court of Appeals. The court of appeals reversed the circuit court’s order terminating Mary’s parental rights, holding that the circuit court “erred in determining that Mary’s due process rights afforded by the statutorily-required case plan had not been violated, even though the case plan was not introduced into evidence.” The court of appeals reasoned that it was unable to review whether Mary’s due process rights were violated because DHS failed to introduce the case plan as part of the record below. The court of appeals further held that admission of the psychological report, prepared by Dr. DeYoub, was reversible error. Finally, the court of appeals found that the circuit court relied on the report to make judgmental statements and to reach conclusions before the report was admitted into evidence. This case comes to us by a grant of petition for review pursuant to Rule 2-4 of the Arkansas Rules of the Supreme Court.
Upon a petition for review, we consider a case as though it had been originally filed in this court. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). We recently set forth our standard of review in parental rights-termination cases:
Arkansas Code Annotated section 9-27-341 (b)(3) (Supp.1999) requires an order terminating parental rights be based upon clear and convincing evidence. Larscheid v. Arkansas Department of Human Services, 343 Ark. 580, 36 S.W.3d 308 (2001) (citing Baker v. Arkansas Dept. of Human Servs., 340 Ark. 408, 12 S.W.3d 200 (2000)). Our law is well settled that when the burden of proving a disputed fact in chancery court is by clear and convincing evidence, the question that must be answered on appeal is whether the chancery court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. (citing J.T. v. Arkansas Dept. of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997); Anderson v. Douglas, 310 Ark. 633, 839 S.W.2d 196 (1992)). Clear and convincing evidence is that degree of proof that will produce in the fact finder a firm conviction as to the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of 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. Gregg v. Arkansas Dep’t of Human Servs., 58 Ark.App. 337, 952 S.W.2d 183 (1997). Cases such as this are reviewed de novo on appeal. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999).
Dinkins v. Arkansas Dept. of Human Serv., 344 Ark. 207, 40 S.W.3d 286 (2001). See also Wade v. Arkansas Dept. of Human Sen., 337 Ark. 353, 990 S.W.2d 509 (1999).
In the brief that Mary submitted to the Arkansas Court of Appeals, she raised only two points of error: first, that she was denied due process because DHS failed to comply with Ark. Code Ann. § 9-27-402(c)(5)(A)(2004); second, that the circuit court erred in admitting Dr. DeYoub’s report into evidence. The briefs submitted to this court, however, are significantly different in that Mary has included four additional points on appeal.
We accept petitions for review pursuant to Rule 2-4 of the Arkansas Rules of the Supreme Court. This rule clearly states that, “[w]hen the Supreme Court grants a petition for review, the Clerk shall promptly notify all counsel and parties appearing pro se. Within two weeks of the notification, fourteen additional copies of the briefs previously submitted to the Court of Appeals shall be filed with the Clerk.” Ark. Sup. Ct. R. 2-4(e) (2004) (emphasis added). In addition, our rule allows parties, after permission is granted, to file supplemental and reply briefs, but those may not exceed 10 pages in length. Ark. Sup. Ct. R. 2-4(f). While we did grant the parties permission to file supplemental and reply briefs and we granted Mary permission to file a substituted brief in order to cure deficiencies in her abstract and addendum, Ark. Sup. Ct. R. 4-2(b) (2004), this does not give Mary permission to raise points on appeal that were not originally submitted to the court of appeals for review. Accordingly, we decline to consider any point on appeal that was not originally submitted to the court of appeals.
In her first point on appeal, Mary contends that she was denied due process because DHS failed to comply with Ark. Code Ann. § 9-27-402 (c)(5)(A). This section states in pertinent part:
(c) When the juvenile is receiving services in an out-of-home placement, the case plan must include at a minimum, in addition to the requirements in subsections (a) and (b) of this section:
(5) (A) The specific actions to be taken by the parent, guardian, or custodian of the juvenile to eliminate or correct the identified problems or conditions and the period during which the actions are to be taken.
Ark. Code Ann. § 9-27-402(c)(5)(A). More specifically, Mary asserts that DHS failed to specify in the case plan the actions she needed to take to achieve reunification with her children, thereby denying her due process of law. In rebuttal, DHS suggests that Mary abandoned her due process argument on appeal because her mere assertion of a due process violation is not sufficient to preserve the point for appellate review.
First, this court cannot determine whether Mary’s due process rights were violated based on the case plan’s lack of specificity because we have no case plan in the record to review. While there is evidence in the record that a case plan existed, it is not included in the record before us. In the notice of appeal, Mary designated the “entire record” for the purpose of this appeal. Rule 3-1 (n) of the Rules of the Arkansas Supreme Court specifically states what is meant by the term “record” for purposes of appeal: “The term ‘record’ in civil cases, and as used in these Rules, refers only to the pleadings, judgment, decree, order appealed, transcript, exhibits, and certificates.” Ark. Sup. Ct. R. 3-l(n) (2004). Furthermore, according to the Rule 3-2, the record to be transmitted to this court by the circuit clerk shall “include all matters in the record as required by Rule 3-l(n).” Ark. Sup. Ct. R. 3-2 (2004). Thus, the “entire record” could be properly prepared and transmitted by the circuit clerk under our rules without including the case plan even though the plan had in fact been filed in accordance with Ark. Code Ann. § 9-27-402 (c)(5)(A).
We have consistently said that it is the duty of the appellant to bring up an adequate record for our review. Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996); City of Benton v. Arkansas Soil & Water Conservation Comm’n., 345 Ark. 249, 45 S.W.3d 805 (2001)(citing Hankins v. Dept. of Fin. & Admin., 330 Ark. 492, 954 S.W.2d 259 (1997)). Failure to do so precludes our review. Id. As noted earlier, it is entirely possible that the case plan at issue here was filed but not included in the record because it was not introduced and admitted into evidence. If Mary believed that the case plan lacked specificity, it was her responsibility to support her claim by introducing the plan into evidence. The basis of such a claim would necessarily be the contents of the challenged document. In any event, even if the case plan was not properly filed below, the record before us does not reflect an objection to the lack of a filed case plan. Furthermore, Mary has cited no case law in support of her due process claim. Assignments of error unsupported by convincing argument or authority will not be considered on appeal, unless it is apparent without further research that the point is well taken. Hodges v. Lamora, 337 Ark. 470, 989 S.W.2d 530 (1999).
Mary’s second point on appeal is her claim that the court erred in admitting the report ofDr. DeYoub into evidence. While Mary initially objected to the report’s admissibility as hearsay, the report was subsequently admitted into evidence without objection as part of a court report at the permanency planning hearing.
To preserve an objection for appeal, a timely and appropriate objection must be made. Leavy v. State, 314 Ark. 231, 862 S.W.2d 832 (1993). When no objection is made, the argument that the evidence is inadmissible is not preserved for appeal. Id. However, even when a proper objection is initially made, to properly preserve the argument for appeal, the appellant must renew that objection when the appellee subsequently attempts to introduce the same evidence. See Baker v. State, 334 Ark. 330, 974 S.W.2d 474 (1998); Mills v. State, 321 Ark. 621, 623, 906 S.W.2d 674 (1995). Given the subsequent admission of the report by DHS, without objection by Mary, we hold that this issue was not preserved for our review on appeal, and we affirm the circuit court.
Affirmed.
Mary and both the children are bilingual in Spanish and English.
The children’s sister, Wendy Doran, resides in Louisiana; Mary’s sister, Judy Keller, resides in Michigan.
These four additional points are as follows:
1. The trial court erred in admitting hearsay testimony of witnesses, irrelevant testimony of witnesses, and irrelevant exhibits.
2. The trial court erred in terminating the parental rights of appellant when no evidence was presented in the State’s case in chief at the termination of parental rights hearing.
3. The trial court erred in denying appellant a hearing on the issue of placement prior to removing her children from the jurisdiction of the State ofArkansas to allow guardianships to be established in another jurisdiction.
4. The trial court erred in finding that there was sufficient evidence to terminate the parental rights of the appellant. | [
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PHILLIP T. WHITEAKER, Judge
| Nlie subject of this appeal is a parcel of property in Jefferson County. The parties to this dispute are siblings. Appellants Avery Alexander and Carolyn Vassal- contend that the Jefferson County Circuit Court erred in reforming a deed to a portion of the property; in addition, the appellants challenge the circuit court’s decision to award attorney’s fees to appellee Curtis Alexander. We affirm in part and reverse in part.
I. Background
C.G. Alexander and Jessie Alexander were the parents of fourteen children, including Avery, Carolyn, and Curtis. In 1967, C.G. and Jessie acquired a tract of land that encompassed roughly eighteen acres from George and Lillie Alexander. In 1968, C.G. and |2Jessie conveyed a small parcel at the northern edge of that tract of land to Clayborn and Elizabeth Carroll. In 1990, Curtis decided to build a new house for his parents on a parcel of property adjacent to, and to the west of, the parcel that C.G. and Jessie had conveyed to the Carrolls. Curtis contracted with L.J. Ran-dle to build the home. In order to accomplish the construction, C.G. and Jessie issued a deed to Curtis and his sister, Olga. Unknown to C.G., Jessie, Curtis, and Olga at the time, however, the deed contained an erroneous property description. It contained the same legal description as the property that C.G. and Jessie had deeded to the Carrolls in 1968, instead of the legal description of the adjacent parcel on which the house was built. Curtis then executed a construction mortgage and promissory note to Randle for the construction of the home. Unknown to Curtis and Randle, these documents also contained the same erroneous property description from the deed. Randle completed construction of the home in 1992. It is undisputed that C.G. and Jessie lived in the home after its completion until their deaths.
In 1996, Randle sued Curtis for nonpayment on the promissory note and for foreclosure on the mortgage. Randle obtained a default judgment against Curtis. In the process of this litigation, notice of the erroneous property description arose for the first time. As a result, Randle filed an unjust-enrichment action against Curtis, C.G., and Jessie and was awarded a judgment in November 2000.
In 2010, several events of significance occurred. Jessie died intestate in January 2010, | sand C.G. died intestate five months later in June. In between these two events, in March 2010, Avery recorded a quitelaim deed conveying C.G.’s real estate to Avery and Carolyn as joint tenants in common. The same day, an affidavit of death terminating C.G, and Jessie’s tenancy by the entirety was recorded. Avery took these actions based on a general durable power of attorney- purportedly executed by C.G. in April 2008.
The instant litigation began in November 2011. Curtis filed suit seeking two forms of relief: (1) reformation of the 1990 deed from his parents to him and Olga in order to reflect the correct legal property description; and (2) an order of the court setting aside the March 2010 quitclaim deed. With respect to the latter relief, Curtis alleged that Avery had abused his power of attorney by conveying C.G.’s property “to himself and his sister in an attempt to exclude the remaining siblings from inheriting the remainder of the property.” Avery and Carolyn filed an answer generally denying Curtis’s allegations and reserving the right to plead further, including pleading affirmative defenses. They subsequently filed an amended answer asserting the áffírmative defense of laches, contending that Curtis had “stood idle [sic ] by for nearly twenty-two years before he filed his claim to reform the deed.”
After a trial, the circuit court entered judgment granting-Curtis both of his requests 14for relief. As to the reformation of the 1990 deed, the court found that none of the parties contested the fact that the deed contained an erroneous description. .The court further found that, despite Avery’s pleading of the affirmative defenses of laches and adyerse possession, he presented no proof to support those defenses. Accordingly, the court granted Curtis’s request to reform the deed, and the judgment set forth the correct legal description thereof. As to the 2010 quitclaim deed, the court first found that the power of attorney that Avery used to quitclaim the property to himself and his sister was invalid. As a result, the court found the quitclaim deed itself to be void. The circuit court also awarded Curtis attorney’s fees, travel expenses, and costs totaling $5841.88.
Avery timely appealed. On appeal, however, Avery does not challenge the circuit court’s decision to reform the deed, .nor does he argue that the circuit court erred in finding the power of attorney to be void. Rather, he argues that the court lacked jurisdiction to enter the order in the absence of all necessary parties and that the court erred in finding that he presented no proof of his affirmative defense of laches. In addition, he argues that the circuit court erred in awarding Curtis attorney’s fees.
II. Discussion
A. Necessary Parties
In his first argument on appeal, Avery notes that there are fourteen chil dren in the Alexander family, but Curtis chose to sue only Avery and Carolyn. He therefore complains | Bthat the circuit court erred in rendering'a decision without having all necessary parties before the court. Avery never sought to join his siblings, however, nor made mention at any point in the circuit-court proceedings that they were necessary or indispensable parties. This court will not address an argument concerning whether all necessary parties were joined when that argument was not made in the circuit court and is being raised for the first time on appeal. See Vibo Corp. v. State ex rel. McDonald, 2011 Ark. 124, at 9, 380 S.W.3d 411, 420; Milberg, Weiss, Bershad, Hynes & Lerach, LLP v. State, 342 Ark. 303, 310-11, 28 S.W.3d 842, 847 (2000); Meister v. Reddmann, 241 Ark. 854, 410 S.W.2d 769 (1967).
B. Evidence of Laches
Avery next contends that the circuit court erred in finding that he presented no proof on his affirmative defense of laches. This is essentially a challenge to the circuit court’s evidentiary ruling. We will not reverse a circuit court’s evidentia-ry ruling absent an abuse of discretion. Howard v. Adams, 2016 Ark. App. 222, at 4, 490 S.W.3d 678, 682.
At trial, Avery attempted to argue that Curtis should have been aware of the defect in his property description since the 1996 default judgment against him and thus should have acted sooner. The circuit court, however, limited Avery to presenting evidence of matters that had occurred since he purportedly acquired the property via the quitclaim deed in 2010.
On appeal, Avery does not specifically contend that the circuit court abused its discretion in limiting his evidence to matters that occurred after 2010. Instead, he points to evidence he presented of events that happened prior to that date—such as the 1996 default judgment against Curtis and the fact that C.G. and Jessie had to pay off the balance of the |fihouse—and asserts that those facts demonstrate that his parents detrimentally relied on another party’s conduct and were prejudiced as a result. See, e.g., Williams v. Arnold, 2015 Ark. App. 715, at 9, 479 S.W.3d 56, 62 (setting forth the elements of laches). Avery misses the point. For example, Avery argues that the circuit court “obviously ignored the legal proceedings had against Curtis wherein judgment was entered against him in 1996.” The circuit court did not “ignore” those proceedings; it ruled that they were irrelevant. Here, Avery does not expressly challenge the court’s ruling regarding relevance and admissibility. In the absence of compelling argument that the circuit court abused its discretion on this evidentiary matter, we affirm.
We also note that Avery does not challenge the circuit court’s ultimate conclusion that Curtis’s deed should be reformed. Indeed, Avery agreed at trial that Curtis’s deed contained an incorrect legal description. Courts of equity have the authority to reform deeds when the evidence is clear, convincing, and decisive and when there has been a mutual mistake in drafting the instrument. Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993); Falls v. Utley, 281 Ark. 481, 665 S.W.2d 862 (1984). The evidence necessary to justify a reformation based on mutual mistake need not be undisputed. Falls, supra; Kohn v. Pearson, 282 Ark. 418, 670 S.W.2d 795 (1984). Our test on appeal is whether the trial court’s decision was clearly erroneous. Hope v. Hope, 333 Ark. 324, 969 S.W.2d 633 (1998). Given Avery’s concession that the deed from C.G. and Jessie to Curtis contained a mistake in the legal description, we affirm the circuit court’s order reforming that deed.
|7III. Attorney’s Fees
At the conclusion of its order reforming the deed, the circuit court made the following findings:
This matter was previously set for trial on August 27, 2012. All parties appeared. Prior to the start of trial, the defendants moved for continuance. The plaintiff had already traveled from California. The Court granted the continuance, but reserved the issue of reimbursement to plaintiff for his travel expenses. The Court finds that plaintiff is entitled to the sum of $3,341.88 and judgment is granted against the defendants, Avery Alexander and Carolyn Vassar, for this sum. ($2,234.00 mileage, $693.00 for hotel, and $414.00 for meals).
The defendants testified that the only reason they conveyed the land to themselves was to avoid probate and protect the interests of their brothers and sisters in C.G.’s property. However, Avery testified that after five (5) years of litigation, they had yet to convey the property to their siblings and acknowledged that Curtis had to sue them and incur legal expenses. For these reasons, the Court grants plaintiff judgment against Avery Alexander and Carolyn Vassar for an additional sum of $2,500 for plaintiffs attorney’s fees and costs.
The court cited no authority for its award of attorney’s fees. In his final point on appeal, Avery argues that this ruling was in error.
Arkansas courts follow the American rule, which requires every litigant to bear his or her attorney’s fees absent statutory authority or a contractual agreement between the parties. Stokes v. Stokes, 2016 Ark. 182, at 10, 491 S.W.3d 113, 120; Carter v. Cline, 2013 Ark, 398, 430 S.W.3d 22; Griffin v. First Nat’l Bank of Crossett, 318 Ark. 848, 888 S.W.2d 306 (1994). Arkansas Code Annotated section 16-22-308 (Repl. 1999) permits an award of fees to a prevailing party in certain civil actions:
In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrament, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject 1 ^matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.
A trial court’s decision whether to award attorney’s fees for a breach of contract will not be set aside absent an abuse of discretion. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995).
In Stokes, supra, the supreme court held that, in actions such as quiet-title proceedings and actions to set aside deeds, the appellate courts must look to the pleadings to determine the nature of a claim and to decide whether the claim sufficiently concerns a breach of a contract. The court noted as follows:
We ... acknowledge that the fees are permitted when a breach-of-contract action seeks equitable remedies such as specific performance. See, e.g., Childs v. Adams, 322 Ark. 424, 909 S.W.2d 641 (1995). But this court has stated that the statute does not authorize fees when the claim merely has some connection to a contract. See, e.g., City of Little Rock v. Hudson, 366 Ark. 415, 236 S.W.3d 509 (2006).
Stokes, 2016 Ark. 182, at 11, 491 S.W.3d at 121. In Stokes, the litigation was a quiet-title action. Although the parties used terms such as “failure of consideration” and “breach of a condition imposed by the warranty deed,” -the supreme court determined that those terms did not determine the nature of the lawsuit. Because the quiet-title action did not actually raise a breach-of-contract claim, the supreme court held that attorney’s fees were not authorized. Id.
In this case, Curtis’s complaint referenced the warranty deed between his father and him, but he never alleged that there had been a breach of the contract. Instead, he merely sought reformation of the deed to reflect the correct legal description to the property. In addition, he asked for Avery’s quitclaim deed to be set aside. In neither of these prayers for 19relief did Curtis allege that a contract had been breached. Because he made no claims for any sort of contract-related relief, section 16-22-308 did not apply, and the circuit court erred in awarding attorney’s fees.
Affirmed in part; reversed in part.
Virden and Glover, JJ., agree.
. Appellant Tina Alexander is Avery Alexander’s wife.
. Curtis explained at trial that his parents issued the deed because they all understood that "you need to own the property to build a house” on it.
. No estate was ever opened for C.G. or Jessie,
. Avery and Carolyn also pleaded adverse possession as an. affirmative defense, noting that C.G. and Jessie had been in possession of the real property continuously for more than seven years and had satisfied the other requirements of adverse possession. They have abandoned any argument pertaining to adverse possession on appeal, however, and we do not discuss the matter further.
.Curtis elicited testimony from both Avery and Carolyn that they agreed that the legal description on Curtis's deed was incorrect. | [
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Betty C. Dickey, Justice.
This is an original action under •the Arkansas Supreme Court Procedures Regulating Professional Conduct (Procedures). The Executive Director of the Arkansas Supreme Court Committee on Professional Conduct (Ligón) filed an action for disbarment against Michael Anthony Price, based on two specific complaints, that of: (1) Timothy Stallings, a former client; and, (2) Federal Judge Susan Weber Wright, involving Price’s representation of Anthony J. Vance. After Committee Panel A voted to proceed with disbarment, this court appointed retired Circuit Judge, Jack L. Lessenberry, to sit as special judge pursuant to Procedure 13(A). Judge Lessenberry’s findings of fact and conclusions of law, as well as his recommendation for sanction have been filed with this court pursuant to Procedure 13(D). We conclude that those findings of fact and conclusions of law are not clearly erroneous and accept Judge Lessenberry’s report and the order is hereby issued.
The Committee served Price with a formal complaint, under Section 9 of the Procedures, alleging violations of the Model Rules of Professional Conduct (Model Rules), based on the complaints of Timothy Stallings and Federal Judge Susan Weber Wright. In addition to the two formal complaints, Panel A also had information of Price’s previous disciplinary sanctions including complaints from Judge James Mixon, Cleotis Gatson, and David Scott Curtis. Finally, the panel had other information, including that of a loan Price fraudently obtained from Marsha Hampton. After hearing testimony and considering the evidence, Committee Panel A voted by a majority paper ballot to initiate disbarment proceedings.
This court then appointed Jack Lessenberry special judge, pursuant to Section 13(A) of the Procedures, and on April 3, 2003, he began a five-day hearing on the complaints. The judge first addressed a file-marked letter, dated a day earlier, in which Price asked to take inactive status under Rule 25 of the Rules of Professional Conduct, saying he did not have the “capacity to defend myself in these proceedings.” Judge Lessenberry denied his request, finding that Price had violated numerous Model Rules, and recommended his disbarment. The findings of fact, conclusions of law, and recommendation of sanction were then filed with this court, along with a transcript of the proceedings. Procedures, Section (D). The special judge’s findings of fact are accepted by this court unless they are clearly erroneous. U. This court imposes the appropriate sanction as warranted by the evidence. Id. There is no appeal from this court except as may be available under federal law. 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 committed. Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). The court must view the evidence in a light most favorable to the respondent, resolving all inferences in favor of the respondent. Id. Disputed facts and determinations of the credibility of witnesses are within the province of the fact-finder. Id. The purpose of disciplinary actions is to protect the public and the administration of justice from lawyers who have not discharged their professional duties to clients, the public, the legal system, and the legal profession. Neal v. Hollingswoth, supra. Applying the clearly erroneous standard of review mandated by the Procedures, we now consider Price’s assertion that the special judge erred when he recommended disbarment.
Stallings Complaint
The first complaint was that of Timothy Stallings, who testified that he was in the Arkansas Partnership Program at the State Hospital when he hired Price, on the recommendation of another patient, to help him move to a less-restrictive environment nearer his home in Hot Springs. Stallings’ girlfriend, Summer Emley, sent Price $1,250 by Western Union on August 21, 2001, to get a doctor to testify at the hearing scheduled September 5, 2001. While Price attended the hearing, he brought no doctor, and, in fact, suggested that a public defender represent Stallings, which was done. After the hearing, Price said he would refund Emley’s money, but failed to do so. Stallings did not hear from Price again until March 7, 2002, when Stallings called Price and told him he no longer needed his services. Later, on April 17, 2002, Stallings received a letter from Price stating that he had located a doctor.
In this complaint, Price was alleged to have violated Model Rules 1.3, 1.4(a), 1.4(b), 1.15(a), 1.16(d), 3.2, 5.5(a), 7.3(a), 8.4(a), and 8.4(d). Judge Lessenberry found Price violated these rules with the exception of Model Rules 5.5(a) and 7.3(a).
Special Judge Lessenberry found that Price violated Rule 1.3, Diligence, which states:
A lawyer shall act with reasonable diligence and promptness in representing a client.
Price argues that he acted with reasonable diligence and promptness, that Stallings’ cross-examination and Price’s own direct testimony reveal that he made diligent inquires, but that he had no success obtaining a psychiatrist. Price admitted delay, but claims he tried to contact approximately sixty (60) psychiatrists during a six (6) month period in an effort to find a forensic psychiatrist to evaluate his Arkansas Partnership Program clients. There is, however, no evidence in the record showing Price actually employed a doctor to examine Stallings. If he did, it was after Stallings had released him as his attorney. Therefore, the judge did not err in finding that Price failed to act with reasonable diligence and promptness in representing his clients.
Rule 1.4(a), Communication, provides:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
Judge Lessenberry concluded Price violated this rule because “the record supports perhaps one visit of respondent [Price] with Stallings over a long period.” The violation of Rule 1.4(a) is well-supported by the record, which indicates Price made no effort to contact Stallings between Price’s brief non-appearance at the September 5, 2001 hearing, and Price’s letter of April 17, 2002 letter saying he had located a doctor to evaluate Stallings. Under Model Rule 1.4(b):
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Judge Lessenberry concluded that Stallings’ “appeared to have a good grasp of what was going on and what he expected of [Price].” Because Price failed to explain the delay in finding a doctor, or any other matter to Stalhngs, he violated this rule.
Price admitted that he never had a trust account, so clearly, he violated Rule 1.15(a), Safekeeping of property, which provides in part:
(a) All lawyers shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.
(1) Funds of a client shall be deposited and maintained in one or more identifiable trust accounts in the state where the lawyer’s office is situated, or elsewhere with the consent of the client or third person. The lawyer or law firm may not deposit funds belonging to the lawyer or law firm in any account designated as the trust account, other than the amount necessary to cover bank charges, or comply with the minimum balance required for the waiver of bank charges.
Price concedes that he did not have an IOLTA trust account, but that “he maintained [a] separated, segregated account into which he deposited unearned flat fees in the cases like Stallings.” Again, Price never hired a doctor to evaluate Stallings and never refunded any of the money Emley paid for that purpose. Therefore, the judge’s findings are not clearly erroneous.
Model Rule 1.16(d), Declining or terminating representation, states:
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
Price violated Rule 1.16(d) in that once Stallings informed him that he no longer required his services, Price failed to refund the money that Emley paid him for a doctor to evaluate Stallings.
Model Rule 3.2, Expediting litigation, states that:
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Price failed to make any efforts to expedite the Stallings’ matter. Price’s failure to timely locate a doctor to evaluate Stallings is obviously not in the interest of Stallings, who wanted to be transferred to a less-restrictive facility closer to home.
Judge Lessenberry found no evidence to support the allegation that Price violated Rule 5.5(a), Unauthorized practice of law:
A lawyer shall not:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.
Ligón argues that the judge “must have overlooked page 11 ofExhibit 4-A. This is a trial exhibit of pleadings from the Judge Wright/Vance complaint, containing ... an affidavit from the Supreme Court Clerk’s office showing Mr. Price failed to pay his 2002 law license fee by the March 1 deadline. His law license went into administrative suspension status then and remained there until May 13, 2002, when he paid his 2002 license fee.” Ligón points to the testimony of Beti Gunter and Timothy Stallings, who testified Price dealt with Stallings as late as March 7, 2002, or April 17, 2002. However, Ligón directs this court to an affidavit on file in the Judge Wright complaint, not the Stallings’ complaint. Judge Lessenberry’s finding that there was “no evidence to support the allegation of misconduct,” is not clearly erroneous.
The judge also found no evidence that Price violated Model Rule 7.3(a), Direct contact with prospective clients:
(a) A lawyer shall not solicit, by any form of direct contact, in-person or otherwise, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.
The testimony of Stallings clearly indicated that he had heard of Price through Edward King, another resident at the Arkansas Partnership Program, not that Price had solicited Stallings as a client.
The judge found that, cumulatively, Price is guilty of violating Model Rule 8.4(a), Misconduct, which states:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another.
Price argues that there is insufficient evidence that he either attempted to violate any of the Model Rules or induced anyone else to do so. We disagree. Finally, Model Rule 8.4(d) states that it is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice.
Again, having been found to have violated other Model Rules, Price also becomes guilty of this violation.
Judge Susan Weber Wright Complaint
The second complaint was that of Federal District Judge Susan Weber Wright, who testified she was assigned Anthony J. Vance vs. St. Vincent Infirmary Medical Center, in which Price represented Mr. Vance. St. Vincent filed a motion to compel responses to interrogatories and requests for production, but Price did not respond. The following is a chronology of events:
April 17, 2002, Judge Wright granted a motion to compel and directed Price to respond, but Price filed no response;
May 9, 2002, St. Vincent filed a motion to dismiss;
May 31, 2002, St. Vincent filed a motion for summary judgment;
June 5, 2002, Judge Wright denied the motion to dismiss without prejudice, giving Price until June 14, 2002, to respond to the motion to dismiss, and to timely respond to a motion for summary judgment;
June 17, 2002, Price told Judge Wright’s secretary he had been ill and would file that day asking for more time to respond;
July 1, 2002, Judge Wright’s law clerk telephoned Price, who assured her he would file something by July 2, 2002;
July 8, 2002, Judge Wright’s law clerk called and left a message for Price;
July 9, 2002, Price returned the phone call, and again, promised to file something;
July 16,2002, A show cause order was entered, giving Price ten (10) days to explain why he should not be removed as counsel;
July 19, 2002, Price signed for the certified mail containing the show cause order.
July 31, 2002, Judge Wright removed Price from the case and directed him to immediately provide Vance with a copy of the order, continued the trial to an unstated date, and stayed any action on the summary judgment motion until Vance obtained another attorney;
September 24, 2002, Judge Wright responded to an undated letter from Vance, indicating Price had telephoned him on September 19, 2002, informing him of the order;
December, 2002, Judge Wright received a letter from Vance requesting his case be dismissed because he did not have the money to hire another attorney; and,
December 19, 2002, Judge Wright entered a voluntary dismissal without prejudice.
Based on Judge Susan Weber Wright’s complaint, Price was alleged to have violated Model Rules 1.1, 1.16(d), 3.2, 3.3(a), 3.4(c), 5.5(a), 8.4(c), and 8.4(d). Judge Lessenberry found that Price violated Model Rule 1.1:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Price argues that the record is “replete with evidence that respondent had a general intention to comply with Judge Wright’s orders but between bouts with hypertension and competing disciplinary activity, respondent simply dropped the ball in the Vance case.” Price did not provide competent representation to Vance by repeatedly failing to file responsive pleadings.
In Judge Wright’s order of July 31, 2002, Price was removed as attorney and was directed to provide his client with a copy of the order by September 16, 2002, so that Vance would know of the matters pending, obtain other representation, or proceed pro se. Vance wrote Judge Wright a letter stating that Price had telephoned him on September 19, 2002, three days later than Judge Wright’s July 31 order directed Price to do. Price clearly violated Rule 1.16(d), Declining or terminating representation, which states:
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
Further, Price did not make reasonable efforts to expedite the Vance case, nor did he respond to any orders or pleadings. Model Rule 3.2, Expediting litigation, states:
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Judge Lessenberry found that Price violated Model Rule 3.3(a)(1), Candor toward the tribunal, which provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal.
Price talked with a secretary in chambers and with Judge Wright’s law clerk by telephone, giving repeated excuses for delay and promising that pleadings would be forthcoming, but he failed to file any. Price knowingly made false statements to Judge Wright’s staff in June and July about filing pleadings.
The judge found that Price violated Model Rule 3.4(c), Fairness to opposing party and counsel, that a lawyer shall not:
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
Price contends that the record shows his diminished capacity to comply because of illness and personal hardships, but does not deny he failed to respond to discovery, to an order granting a motion to dismiss, to a summary judgment motion, and to a show cause order from the court. Price’s claims of illness and personal hardship are not justification for his repeated fadings to obey Judge Wright’s order.
Model Rule 5.5(a), Unauthorized practice of law, states:
A lawyer shall riot:
(a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.
Denise Parks, by an affidavit states that Price failed to pay his 2002 law license fee by the March 1 deadline. Price’s law license went into administrative suspension status and remained there until May 13, 2002, when he paid his 2002 license fee. During this time Price practiced law representing Mr. Vance.
Judge Lessenberry found that Price violated Model Rule 8.4(c) and (d), Misconduct, which provides a lawyer shall not:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice.
Judge Lessenberry did not err in finding Price’s conduct in failing to file pleadings as deceitful or prejudicial to the administration ofjustice.
Other Evidence
Judge Lessenberry was presented with evidence at the disbarment hearing that Price had violated other Model Rules that were not included in the petition for disbarment. In this appeal, Price objects “to all the findings of Model Rules violations covered in pages 17 through 22 of the special judge’s report,” without specificity or authority to support Price’s attempts to overturn the findings and conclusions.
Judge James Mixon testified that he conducted a bankruptcy hearing where Price failed to produce records as ordered. Judge Mixon believed Price had received funds from a bankrupt client and had failed to report such payment. Price lied to Judge Mixon, saying that that he had an attorney trust account when he did not. Judge Lessenberry found Price “violated Model Rules.”
Cleotis Gatson filed a complaint against Price, and the Committee found Price guilty of violating Model Rules 1.3, 1.4(a), and 1.4(b), and imposing a reprimand and a fine of $750. Price violated 1.3, 1.4(a), 1.15(a), 1.16(d), 3.2, 8.4(a), and 8.4(c), in his representation of David Scott Curtis, who had been committed to the Arkansas Partnership Program. David Ray Curtis paid Price $600 to get his son a doctor to evaluate David Scott, in order to get his son moved closer to home. When Price was fired for failing to obtain a doctor’s services, he failed to refund the money to the Curtis family.
Judge Lessenberry found that no violation of a Rule was alleged in the petition for disbarment regarding a personal loan Price obtained through Marsha Hampton. However, the judge found that Price’s letter to Hampton contained such misstatements and omissions as to meet the essential elements of the crime of fraud by deception, and violated Model Rule 8.4(c). Finally, Judge Lessenberry found that Price had not complied with continuing legal educational requirements for two years, nor had he ever maintained an attorney trust account since entering private practice in 1999.
Comparability and Proportionality
Price argues that because Judge Lessenberry’s findings clearly lack the required comparability and proportionality analysis in determining the appropriate sanctions, this court should reject the recommendations. However, neither Price’s abstract nor his addendum contain any mention of comparability or proportionality analysis. This court does not consider issues lacking citation of authority. Cambiano v. Arkansas State Board of Law Examiners, 357 Ark. 336, 167 S.W.3d 649 (2004); Holcombe v. Marts, 352 Ark. 201, 99 S.W.3d 401 (2003). Neither the petitioner nor this court is required to search the record to find where Price might have raised the issue at trial.
Judge Lessenberry effectively analyzed the thirty-five factors that lent themselves to consideration of comparability and proportionality. Section 17 of the Procedures divides violations of the Model Rules into two separate categories of misconduct: serious misconduct and lesser misconduct. Procedures 17(B) and (C). Serious misconduct warrants a sanction of terminating or restricting a lawyer’s license to practice law, whereas the lesser misconduct does not. Neal v. Hollingsworth, 342 Ark. 566, 992 S.W.2d 771 (1999). Conduct will be considered serious misconduct if any of the following considerations set forth in Procedure Section 17(B) apply:
(1) The misconduct involves the misappropriation of funds;
(2) The misconduct results in or is likely to result in substantial prejudice to a client or other person;
(3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer;
(4) The misconduct is part of a pattern of similar misconduct;
(5) The lawyer’s prior record of public sanctions demonstrates a substantial disregard of the lawyer’s professional duties and responsibilities; or,
(6) The misconduct constitutes a “Serious Crime” as defined in these Procedures.
When Model Rules have been violated by either serious or lesser misconduct, a penalty phase proceeds where the defendant attorney and the Committee’s Executive Director are allowed to present evidence and arguments regarding aggravating and mitigating factors to assist in determining the appropriate sanction. Neal, supra. Aggravating factors developed by the American Bar Association Joint Committee on Professional Standards and adopted by this court in Wilson v. Neal, 332 Ark. 148, 16 S.W.3d 228 (2000), are:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with [the] rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
(g) refusal to acknowledge [the] wrongful nature of [the] conduct;
(h) vulnerability of [the] victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution; and,
(k) illegal conduct, including that involving the use of controlled substances.
Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith effort to make restitution or to rectify [the] consequences of [the] misconduct;
(e) full and free disclosure to [the] disciplinary board or cooperative attitude towards [the] proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including alcoholism or drug abuse when;
(1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability;
(2) the chemical dependency or mental disability caused the misconduct;
(3) the respondent’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and,
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
(j) delay in [the] disciplinary proceedings;
(k) impositions of other penalties or sanctions;
(l) remorse; and,
(m) remoteness of prior offenses.
Wilson v. Neal, supra; Model Standards for Imposing Lawyer Sanctions §§ 9.22 and 9.32 (1992).
Judge Lessenberry specifically discussed the mitigation offered by Price, and the aggravating factors he found in the record, before arriving at a recommendation of disbarment. Price claims his disabilities combined with some comparability and proportionality analyses, should result in either his transfer to inactive status until his disability no longer exists or a sanction considerably less than disbarment.
In In Re Wilson, 81 N.J. 451, 409 A.2d 1153 (1979), the New Jersey court held that the misappropriation of client or law firm funds will almost invariably result in disbarment. The New Jersey court later established the Jacob Standard, holding disbarment is all but certain in misappropriation cases unless there had been a “demonstration by competent medical proofs that respondent suffered a loss of competency, comprehensive or will of such magnitude that could excuse egregious misconduct that was clearly knowing, volitional and purposeful.” In Re Greenberg, 155 N.J. 138, 714 A.2d 242 (1998).
Here, Price admittedly failed to maintain an attorney trust account and failed to refund monies owed clients. Price has offered no medical evidence of his mental or physical conditions in mitigation, nor any significant support for his character from the community or legal profession. Therefore, the analysis of Judge Lessenberry is not clearly erroneous.
American with Disabilities Act
Price argues that “it is obvious from the record as a whole that respondent would not have violated so many model rules ‘but for’ a severe emotional impairment which is cognizable under the Americans with Disabilities Act. 42 U.S.C. Sections 121101-12213 and 12131 — Title II of the Act covers disbarment proceedings. In Re Rose, 776 P.2d 765-56 (Cal. 1989).”
According to Price, this is essentially what Section 25 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law allows. The approach protects the public, punishes the disabled lawyer as much as one can do that in good conscience, but at the same time promotes the rehabilitation of an attorney who has fallen on hard times.
First, at 776 P.2d 765, which Price cites, is the case of In Re Laura Beth Lamb, decided August 7, 1989, which contains no mention of the Americans With Disabilities Act. Second, the ADA was not enacted until 1990, with the passage of Public Law No. 101-336. In In Re Lamb, the California court accepted a disbarment recommendation “for an otherwise talented lawyer whose single act of misconduct was impersonating her husband as she took and passed his California bar exam.”
In the case at hand, Judge Lessenberry found that there was “insufficient creditable evidence that the respondent was impaired to the extent that he was not capable of defending himself or that the violations of the Model Rules were caused by the respondent’s depression.”
In Slaten v. State Board of California, 46 Cal.3d 48, 757 P.2d 1 (Cal. 1988), a California court held that the attorney’s alleged mental problems, even if they had been sufficiently established, would be entitled to little weight in mitigation of his numerous acts of misconduct. The purpose of disciplinary proceedings is the protection of the public and the need for protection is the same whether or not the attorney is mentally impaired. Further, in Florida Bar v. Clement, 662 So.2d 690 (Fla. 1995), a Florida court held that “the ADA did not prevent it from disbarring a disabled attorney who suffered from bipolar disorder and had been accused of misuse and misappropriation of client funds. The court in that case held that the ADA did not preclude disbarment because his conduct was not causally related to his disability and, even if it were, the attorney would not be protected under the ADA because he was not a ‘qualified’ individual with a disability.”
In this case, the only proof Price offers in the record of a disability is his reference to a diagnosis of dysthymia, or dysthymic disorder, based on the information in a letter given to him by Kristen Agar, a licensed certified social worker who saw him for an assessment on two occasions. However, the letter also stated that there were other things that needed to be done before an actual diagnosis could be made. Therefore, Price did not establish a disability under the ADA.
Motion to Conform
Ligón argues to this court that Judge Lessenberry erred in denying a motion to conform the petition for disbarment to the proof adduced at trial, and that ruling should be reversed. We disagree. Ligón contends that his evidence at trial fell into four (4) basic divisions:
That developed and known by December 10, 2002, when the Petition for Disbarment was prepared and filed;
That which came into knowledge of Petitioner up to February 20, 2003, the date of the lengthy deposition of Price, which information was explored with him in detail there, e.g. Carolyn Elliott’s two matters;
Information that Petitioner received or developed from February 20 to March 31, 2003, when Price dumped two boxes of his client files on Petitioner, e.g. Dr. Culpepper’s unpaid medical liens in three client cases; and,
Information received or developed from March 31 through trial, e.g., the contents and details of many of Price’s client files and Ms. Litdes’ revelation at trial of her financial arrangement with Price.
Ligón contends that he made a prompt and good faith effort to give Price notice of whatever information and documents that came into his knowledge and possession at each of these stages. According to Ligón, “one must understand and recognize that new complaints often continue to come in to the Office of Professional Conduct on attorneys against whom formal complaints have been filed, and especially against attorneys who the public learns are the subject of disbarment proceedings.” Ligón goes on to say that his office “could have spent time and energy filing amended petition after amended petition, but to do so would put form over substance.”
At the end of Ligon’s case, Ligón moved, as provided by Rule 15, “to amend the pleadings, the petition for disbarment in this case, to conform to the proof that’s been placed into the record.” Price objected. Judge Lessenberry did not err in denying petitioner’s motion to conform the petition for disbarment to the proof adduced at trial.
During the course of the proceedings, a prosecution witness would be called to testify about an incident not set out in the petition for disbarment, and Price would object. Failing to include incidents in the petition for disbarment, then moving at the conclusion of testimony to amend the petition to conform with the proof appears to be a strategy this court finds improper. It is essential that an attorney be given fair notice in a disciplinary proceeding of the charges to be brought against him in order to achieve due process. 7 Am. Jur. 2d., Attorneys at Law § 106. The judge found that “ [i]f there was only one instance and the respondent was given an opportunity to talk with the witness, granting the motion might be proper. Here there were several new issues interjected in the prosecution. Therefore, the motion to amend to conform with the evidence must be denied.” There was sufficient time for petitioner to amend the petition for disbarment to include the information provided by these witnesses.
Past Misconduct
Ligón argues that the Special Judge erred in holding that it is inappropriate for Petitioner to recite past misconduct of a respondent attorney in the petition for disbarment, and that ruling should be reversed. Again, we disagree. According to Ligón, “[a] Committee panel ballot vote on a complaint is a ‘snap-shot in time’ on that one matter.” The Committee panel members vote on the rule violations in the complaint, and only if one or more rule violations are found by a majority vote are the panel members provided with information concerning prior discipline of the respondent attorney.
In this case, after finding rules violations in the Stallings and Judge Wright complaints, the panel would have then had his entire disciplinary history available as it deliberated the sanction to recommend on those two cases. Ligón states that “as a result of this procedural directive, the Office of Professional Conduct has been drafting disbarment petitions to include all aggravating factors it knows of at the time the petition is drafted and filed. This procedure gives the respondent attorney notice of aggravating evidence the petitioner will present at trial and a chance to respond or object to it. Since all disbarment proceedings are bench trials, the judge should be able to disregard recitations of aggravating factors from a petitioner, and any mitigating factors from a respondent in any response to the petition or any other pleading.”
While this court agrees that special judges are able to disregard certain information, matters used at trial and not included in the petition for disbarment are not to be allowed in that particular disbarment proceeding unless the pleadings are amended and notice given to respondent attorney. There was ample evidence that Price violated numerous Model Rules, as set forth in the Stallings complaint and Judge Wright’s complaint, which were the only two Committee complaints receiving a majority vote to initiate disbarment proceedings. Therefore, the other complaints and past misconduct should not have been included in the petition for disbarment. This same evidence, however, may be relevant as aggravating factors to be considered in determining a sanction. Section 13(B) Procedures Regulating Professional Conduct.
Order of Disbarment Issued.
Thornton, J., not participating.
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Tom Glaze, Justice.
This is an attorney malpractice case in which appellant Arkco Corporation (“Arkco”) sued appellee, attorney Jess Askew, for failing to perfect Arkco’s appeal in a civil case out of Phillips County. In 1995, Arkco retained Askew to represent it in a lawsuit it filed against W.T. Paine in Phillips County Chancery Court (“the Paine case”). The trial court in the Paine case announced in mid-December of 1996 that it was going to rule against Arkco. However, before a judgment was filed in Paine’s favor, Arkco filed a bankruptcy petition in federal bankruptcy court on December 24, 1996. The notice of removal to bankruptcy court was filed with the state court at 8:15 a.m. on December 31, 1996; the state court judgment in the Paine case was file-marked and entered at 11:15 a.m. on that same day.
On January 15, 1997, Askew filed, in the state proceedings, what he characterized as “protective” post-trial motions in the state court. Askew noted in those motions that the state court’s orders were invalid due to the removal of the case to bankruptcy court, but that they were being filed “to protect the record in this case.” On March 12, 1997, Askew also filed a timely notice of appeal from the December 31, 1996, order in the Paine case, making Arkco’s record due in ninety days, or on June 10, 1997. Later in March, Arkco’s bankruptcy case was dismissed, though the bankruptcy court did not immediately remand the case to the state court.
On June 6, 1997, the eighty-sixth day after the filing of the notice of appeal, Askew filed a motion in the Paine case in state court to extend the time to lodge the record on appeal; the trial court signed that order on June 9, 1997, but the order extending the time was not entered until June 12, 1997, two days after the deadline for filing the record had expired. When Askew attempted to tender the record to the supreme court clerk’s office on September 12, the clerk rejected the record as untimely.
On October 3, 1997, the bankruptcy court entered an order of remand, sending the Paine case back to the state court. The remand order purported to return the proceeding to the state court “effective from the date of the earliest decree of the state court,” which was December 31, 1996. However, the bankruptcy court remanded the case “nunc pro tunc [to] December 30, 1996.” Apparently, that court’s intent was to return the case so as to validate the state court’s December 31, 1996, order, which had been entered after the removal of the Paine case to bankruptcy court.
On May 20, 2002, Arkco filed a malpractice action against Askew, alleging that Askew failed to timely appeal the Paine case, thereby causing Arkco to lose its right to appeal that case. On September 12, 2003, Askew filed a motion for summary judgment, arguing that he was not negligent in failing to perfect the appeal, because the order appealed from — i.e., the December 31, 1996, state court order — was void, since the state court lacked jurisdic tion to enter that order once the case had been removed to bankruptcy court. See, e.g., Allstate Ins. Co. v. Bourland, 296 Ark. 488, 758 S.W.2d 700 (1988); Harris v. State, 41 Ark. App. 207, 850 S.W.2d 41 (1993) (generally, any judicial action taken by a state court, after removal is effected but before remand by the federal court, is null and void). In his summary-judgment motion, Askew further asserted that the appeal from the state court decree was unnecessary and was done out of an abundance of caution and only for “protective purposes.” Because the judgment was void, he argued, there was no judgment from which to appeal. Thus, he claimed, whether he timely lodged the appeal from an invalid judgment was immaterial.
The trial court agreed with Askew and partially granted his summary-judgment motion at a December 12, 2003, hearing, finding that Askew was not negligent in failing to perfect Arkco’s appeal in the Paine case. At that same hearing, the court informed the parties that it was going to recess for the holidays from December 19, 2003, until January 5, 2004. On December 16, 2003, Arkco’s counsel, Tim Dudley, contacted Askew’s attorney to advise that Arkco had decided to seek an interlocutory appeal of the court’s order granting partial summary judgment. As a result, Dudley modified that original precedent that Askew had submitted in order to include a Rule 54(b) certificate; Dudley asked Askew to approve the amended precedent and return it before December 18. The trial court then signed the precedent on December 18, 2003, and the order, partially granting summary judgment and certifying the matter for appeal under Ark. R. Civ. P. 54(b), was entered on December 19, 2003.
Arkco’s notice of appeal from that order would therefore have been due within thirty days, or on or before January 19, 2004. Arkco failed to meet this deadline, and instead waited until January 26, 2004, to file a motion for extension of time to file its notice of appeal, wherein Arkco alleged that it had not received a file-marked copy of the order partially granting summary judgment. Over Askew’s objection, the trial court granted Arkco’s motion for extension of time on the grounds that the court had not sent out a notice to counsel for Arkco that the order had been filed. The court gave Arkco an additional fourteen days to file its notice of appeal, and Arkco filed its notice of appeal on February 5, 2004.
In its appeal to this court, Arkco argues that the trial court erred in granting Askew’s motion for summary judgment, because the bankruptcy court’s nunc pro tunc order of remand was not appealed; therefore, Arkco submits it had no avenue to either appeal or collaterally attack the state court judgment. Askew, on the other hand, has filed a motion to dismiss Arkco’s appeal, contending that the trial court improperly granted Arkco[s .motion for extension of time to file its notice of appeal.
We first consider Askew’s motion to dismiss Arkco’s appeal. In his motion, Askew asserts that Arkco made no showing of reasonable diligence in seeking to become informed about the entry of the trial court’s order; accordingly, he claims, the court should have denied Arkco’s request for additional time to file its notice of appeal. Askew argues that, because Arkco knew that the order had been signed by the judge before December 19, 2003, it should have known it would have been filed in the clerk’s office either the day it was signed or shortly thereafter. Further, Askew contends, if Arkco and its attorney did not know that the order had been filed, such lack of knowledge was due to a failure to monitor the status of the case. In addition, Askew asserts that, even if Arkco could have reasonably believed that the order was not going to be entered until sometime around January 5, 2004, there was no reason to have waited until January 26, 2004, to check on the status of the order’s filing.
Ark. R. App. P. — Civ. 4 (2004) governs the time for filing a notice of appeal and extensions thereof; that rule provides in relevant part as follows:
Upon a showing of failure to receive notice of the judgment, decree, or order from which appeal is sought and a determination that no party would be prejudiced, the circuit court shall, upon motion filed within 180 days of entry of the judgment, decree, or order, extend the timeforfiling the notice of appeal for a period of 14 days from the day of entry of the extension order.
Rule 4(b)(3) (emphasis added).
This rule was amended on January 22, 2004; prior to that time, it had provided the trial court with discretion to extend the time for filing the notice of appeal. See Ark. R. App. P. — Civ. 4(b)(3) (2003) (“Upon a showing of failure to receive notice of the judgment . . . the circuit court may . . . extend the time for filing the notice of appeal”). The Reporter’s Notes to the 2004 version of the rules points out that the word “shall” replaced “may,” “thereby requiring the circuit court to extend the time under the circumstances described in this provision.”
In Arnold v. Camden News Publishing Co., 353 Ark. 522, 110 S.W.3d 268 (2003), this court held that the trial court did not abuse its discretion in refusing to grant an appellant’s motion for extension of time to file her notice of appeal, because the appellant had not exercised due diligence to apprise herself of the status of the trial court’s order and whether or not that order had been entered. Although the rule itself did not contain the due diligence verbiage, this court held that the trial court was “applying a standard that this court has consistently interpreted as being part of the rule, that a lawyer and litigant must exercise reasonable diligence in keeping up with the docket.” Arnold, 353 Ark. at 528 (emphasis added). In acknowledging that this due diligence requirement was not an explicit part of the rule, the Arnold court wrote as follows:
[I]t is only logical and reasonable that parties assume some modicum of obligation to exercise diligence in keeping up with the status of their case, particularly when they know that a precedent has been submitted and approved by both sets of counsel and is simply waiting approval by the court. It is, in fact, mandated by the Model Rules of Professional Conduct that attorneys exercise due diligence on behalf of their clients. See Model Rules of Professional Conduct 1.3.
Id. (emphasis added).
In his motion to dismiss Arkco’s appeal, Askew argues that, despite the amendment to Rule 4(b)(3), the due diligence requirement must still be read into the rule. He relies on the language in Arnold, cited above, that it is “only logical and reasonable that parties assume some modicum of obligation to exercise diligence” in keeping up with the court’s docket. Askew also asserts that the amendment to Rule 4(b)(3) did not do away with this reasonable diligence requirement, because, according to the Arnold court, the diligence requirement had been considered part of the rule prior to the Arnold decision.
We agree with Askew. As discussed above, the court has “consistently interpreted” the rule as containing a diligence requirement, and “once this court has interpreted its rules or statutes, that interpretation subsequently becomes a part of the rule or statute itself.” Arnold, 353 Ark. at 528 (emphasis in original). The diligence requirement on the part of the attorneys is unaffected by the substitution of “shall” for “may,” as those words speak to the trial court’s duty, rather than to the attorney’s responsibilities. It is not apparent from the plain language of the 2004 version of the rule that the amendment was intended to relieve attorneys of their burden to comply with their professional responsibilities, as those responsibilities are described, not only in Arnold, but also in Rule 1.3 of the Model Rules of Professional Conduct (“A lawyer shall act with reasonable diligence and promptness in representing a client”). Tellingly, the Comments to Rule 1.3 provide the following:
Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed.
The amendment to the rule changes only the trial judge’s burden and duty; when the court is faced with an attorney who has acted diligently but who has nevertheless not received notice of the entry of an order, that judge shall grant an extension. It is mandatory. The amendment simply does not, however, relieve an attorney of acting diligently. Unfortunately, Arkco’s attorney failed to exercise due diligence in keeping up with the court’s docket to determine whether the December 19, 2003, order had been entered. Had Arkco’s attorney followed up on the entry of the order, and shown that he otherwise met the requirements of Rule 4, the trial court would have been under an absolute obligation to grant his motion for extension of time. However, because Dudley offered no proof that he acted diligently, the trial court erred in granting his motion.
Arkco’s notice of appeal was untimely, and an untimely notice of appeal deprives this court of jurisdiction to consider the matters raised on appeal. See U.S. Bank v. Milburn, 352 Ark. 144, 100 S.W.3d 674 (2003); Rossi v. Rossi, 319 Ark. 373, 89.2 S.W.2d 246 (1995). Therefore, we grant Askew’s motion and dismiss Arkco’s appeal.
Special Justices Hefley, McKissic, and Vittitow join this opinion.
Brown, Imber, and Thornton, JJ., not participating.
The thirtieth day after December 19,2003, was January 18,2004; howeverjanuary 18 fell on a Sunday, extending the deadline to the next business day. See Ark. R. Civ. P. 6(a).
In response to Askew’s motion, Arkco argues that Askew did not file a notice of appeal from the trial court’s order grantingArkco’s motion to extend the time to file its notice of appeal. Arkco contends that this deprives this court of jurisdiction to consider Askew’s motion to dismiss the appeal. See, eg., Brown v. Minor, 305 Ark. 556, 810 S.W.2d 334 (1991) (notice of cross-appeal is necessary when an appellee seeks something more than it received in the lower court). However, in Boothe v. Boothe, 341 Ark. 381, 17 S.W.3d 464 (2000), this court noted that, in some circumstances, cross-appeals have been addressed even when no formal notice was filed. Citing Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W2d 500 (1993), the Boothe court noted that, while a failure to file a cross-appeal would ordinarily end the matter, when an appellee does not seek any relief he did not receive in the lower court, the court would address the issues raised. Here, Askew is not seeking anything in this court that he did not receive from the lower court; he is ultimately only asking this court to affirm the trial court’s grant of partial summaryjudgment in his favor. Therefore, no notice of appeal or cross-appeal was necessary on his part, which allows us to address his motion.
The Reporter’s Notes also assert that the effect of this amendment was to overrule Arnold, supra. However, the Reporter’s Notes are not precedent for this court. See Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999).
The Arnold court also distinguished the federal rules of appellate procedure, noting that, although our appellate Rule 4 had been amended to “incorporate some features of Rule 4 of the Federal Rules of Appellate Procedure,” the federal rules required the clerk to send entered precedents to counsel of record. Arkansas’ rules contain no such requirement, the Arnold court pointed out, and it therefore remains the duty of the parties to make themselves aware of the status of their cases. Arnold, 353 Ark. at 528. | [
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