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Kirby, J.
This appeal is prosecuted by appellant from a judgment of conviction for violation of an ordi nance of the city of Pine Bluff for peddling without having obtained a license therefor.
Paragraph 30 of § 1,300 of Lyle’s Digest of the ordinances of the city of Pine Bluff, reads as follows:
“It shall he unlawful for any person to engage in, exercise or pursue any of the following vocations without having first obtained and paid for a license therefor from the proper city authorities, the amounts of which license are fixed as follows, to-wit:
“No. 30. For peddling any other article not otherwise provided for, three dollars per month.
“No. 32. For peddling apparel, dry goods, notions, household goods, and any other article not otherwise specifically provided for, five dollars per month, or fifty dollars per annum. ’ ’
It appears from the testimony that appellant was selling cigars in the city of Pine Bluff for his firm, a wholesale house in Little Rock that had paid its regular occupation taxes there, his usual method being to carry a supply of cigars in a truck or car from Little Rock to call on his regular customers in Pine Bluff and sell them such merchandise as they needed to be delivered upon sending the orders back to Little Rock, except in cases where the merchant or dealer was out of some particular brand of cigars and requested that a box of that kind be left with him until the order could be shipped. In cases of a sale to new customers the salesman would solicit the business of the customer and upon receiving the order he usually left with him a box of the particular brand of cigars sold until the order could be shipped and delivered, no money being paid however for the partial delivery, the whole amount being collected for the shipment after delivery thereof, in the regular course of business. No sales were made except to retail dealers.
It is insisted that appellant in making the sales of cigars was only a traveling salesman or drummer, and not a peddler within the terms of the ordinance; and that ordinance was in effect but an attempt to levy an occupa tion tax upon the business of appellant’s wholesale house contrary to law.
The Constitution gives the General Assembly the power to tax hawkers and peddlers, and in pursuance of such powers the Legislature has defined the term as follows: “Whoever shall engage in the business of selling-goods, wares, or merchandise of any description, other than articles grown, produced or manufactured by the seller himself, or by those in his employ, by going from house to house, or place to place, either by land or water, to sell, the same is declared to be a peddler or hawker.” Section 9793, Crawford & Moses’ Digest.
No exception is made in this section of drummers or commercial travelers, but same applies to “whoever shall engage in the business of selling goods, wares or merchandise, etc.,” in the manner prohibited, and the majority is of opinion, in which the writer does not concur, that the method employed by the salesman in disposing of the cigars, delivering part of the merchandise sold at the time of the sale from stock carried with him for immediate use by the purchaser and to new customers until the whole order could be delivered, is such an engaging-in the business of selling- goods, wares and merchandise within the meaning of the statute as comes within its prohibition. See State v. O’Brien, 188 N. C. 452, 124 S. E. 848. The act construed in the case of State v. Fetter, 65 Conn. 287, 32 Atl. 394, relied upon 'by appellant is different from our own statute defining peddlers, and is of little weight in its construction.
Neither is this ordinance an attempt to charge an occupation tax within the meaning of the law, nor did it constitute a violation of the statute, § 7618, Crawford & Moses’ Digest, providing that no person, firm, individual or corporation shall pay a license fee in more than one city in the State, unless it maintains a place of business in more than one city, which was not the case here. We find no error in the record, and the judgment is affirmed.
McHaNBY, J., dissents. | [
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Bunn, C. J.
This cause, in some of its aspects, was once before on appeal in this court. Our decision on that appeal is reported in 66 Ark. 201, the case being styled “E. Payne, Appellant, against W. H. Rittman, Appellee.” The questions before us then wei'e: First, whether or not the governor’s appointment of E. Payne, the appellant, to fill the vacancy in the office of marshal of Stuttgart, a city of the second class, was valid; and, secondly, had the circuit court jurisdiction to hear and determine a contested election for that office! We field, in effect, that the governor’s appointment was invalid, and that the power to fill such vacancy rests in the city council, the language of the decision being as follows, to-wit: “It will be observed that, while authority is conferred by statute upon a city of the second class to order special elections to fill vacancies in the office of city alderman, nothing is said in that connection as to the office of city marshal. But a majority of this court holds that the authority to fill vacancies belongs to municipalities generally, and that these general powers are expressly conferred by statute in this state upon all its municipal corporations.” “Municipalities,” as here used, means the city or town councils, through which municipal action is expressed and had. This cause was remanded with directions to the circuit court to overrule the demurrer as to its jurisdiction of the contested election, and to proceed to try the same. The defendant, on the ease being remanded, filed his answer, in which he not only answered the notice of contest, but also set up the fact that the election had been held on the notice of the mayor only, without any authority of the city council on the subject. The city council having the sole right to fill'the vacancy, that should have been done by previous ordinance or resolution. The mayor had no power in the matter, and any acceptance of the mere result of the election cannot be regarded as giving any validity to the election itself. The trial court found that the election was held by direction and notice of the mayor. There was, therefore, no legal election, and it is unnecessary to go into the inquiry as to who was elected.
Judgment reversed, and cause dismissed. | [
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Hart, J.,
(after stating the facts). It will be remembered that the attorneys entered into a contract with the plaintiffs for a contingent fee, that is to say, they were to receive a certain percentage of the amount recovered over $500. The plaintiffs, without consulting their attorneys and without their knowledge, compromised the suit with the railroad company and received in settlement the sum of $5,000. Pursuant to the agreement, the defendant moved to dismiss the cause of action, and the attorneys objected on the ground that their fee had not been provided for in the settlement. They filed their intervention, and the court allowed them the sum of $2,250, being the sum provided for in their contract. Their right to recover depends upon the construction to be given to Act No. 293 of the Acts of 1909, which is entitled “An Act to Provide for an Attorney’s Lien and its Enforcement.” The act reads as follows:
“Section 1. The compensation of an attorney or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceed ing, or the service of an answer , containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action, claim, or counter-claim which attaches to a verdict, report, decision, judgment or final order in his client’s favor and the proceeds thereof in whosoever hands they may come; and the lien can not he affected by any settlement between the parties before or after judgment or final order.
‘ ‘ Section 2. The court before which said action was instituted, or in which said action may be pending at the time of settlement, compromise, or verdict, upon the petition of the client or attorney, shall determine and enforce the lien created by this act.” Acts of 1909, page 893.
This act came up for construction in the case of the St. Louis, Iron Mountain & Southern Railway Company v. Blaylock, 117 Ark. 504. There the court held that the attorney did not have any interest in his client’s cause of action, and for that reason the client might dismiss his cause of action, or might settle with the opposite party without consulting his attorney, but that when there were any proceeds from the litigation, derived by settlement, compromise, or final judgment, the attorney has a lien thereon, of which he can not be deprived by the parties to the lawsuit, by any settlement they may make.
In the subsequent case of the St. Louis, Iron Mountain & Southern Railway Company v. Kirtley & Gulley, 320 Ark. 389, the court recognized that this statute was taken from New York and applied the rule that the construction of a borrowed statute is adopted with it unless contrary to the settled policy of the State adopting the statute. In that case it was held that the acceptance of an honest settlement by the client liquidated the amount of the attorney’s fees. So it may be taken as settled under the ruling in that case that if Hays & Ward are entitled to recover at all in the present proceedings, the amount allowed is correct.
The act again came up for construction in the case of McDonald, Admr., v. Norton, Admr, 123 Ark. 473. In that case the court held that the plain meaning of the statute is that an attorney of record shall have a lien upon his client’s cause of action from the commencement of the suit'thereon; that this lien continues upon the cause of action until merged, and then it attaches to the thing into which the cause of action is merged.
In the case of Peri v. New York Central Railway Company, 152 N. Y. 521, 46 N. E. 849, the court said:
‘ ‘ This language is very comprehensive, and creates a lien in favor of the attorney on his client’s cause of action, in whatever form it may assume in the course of the litigation, and enables him to follow the proceeds into the hands of third parties, without regard to any settlement before or after judgment. This is a statutory lien, of which all the world must take notice, and any one settling with a plaintiff without knowledge of his attorney does so at his own risk. Coster v. Greenpoint Ferry Co., 5. Civ. Pro. R. (N. Y.) 146, affirmed without opinion, 98 N. Y. 660. It is urged by the defendant’s counsel that this construction of the section is against public policy, as the law favors settlements; that the plaintiff’s attorney might refuse to disclose his lien, and thereby stand in the way of settlement, and compel parties to litigate who desired to compromise their differences. This criticism overlooks the fact that the existence of the lien does not permit the plaintiff’s attorney to stand in the way of a settlement. The client is still competent to decide whether he will continue the litigation, or agree with his adversary in the way. The lien operates as security, and if the settlement entered into by the parties is in disregard of it and to the prejudice of plaintiff’s attorney, by reason of the insolvency of his client, or for other sufficient cause, the court will interfere and protect its officer by vacating the satisfaction of the judgment, and permitting execution to issue for the enforcement of the judgment to the extent of the lien, or by following the proceeds in the hands of third parties, who received them before or after judgment impressed with the lien.”
(1) The statute under consideration plainly says that the attorney has a lien upon his client’s cause, of action which attaches to a verdict, report, decision, judgment or final order in his client’s favor, and the proceeds thereof in whosoever hands they may come, and that the lien can not be affected by any settlement between the parties before or after judgment. This gives the attorney a lien for that percentage of the proceeds which his contract with his client entitled him to receive and an express statutory liability of a legal character was thereby created.
(2) The second section of the act provides a remedy for the enforcement of the lien in the same court before which the original action was instituted or in which the action may be pending at the time of the settlement or compromise. It was not necessary that the railroad company should again be served with process because the attorneys became a party to the original action by force of the statute, and the case might continue as a special proceeding to enforce the attorney’s lien. This is on the same principle that the purchaser at a commissioner’s sale in chancery becomes a party to the proceedings as far as his rights as purchaser are concerned and must thereafter take notice of all subsequent proceedings which affect his rights. The statute under consideration provides the remedy for the enforcement of the attorney’s lien and the enforcement of the lien in the manner provided by statute is a special proceeding which was witbin the power of the Legislature to adopt. The constitutionality of similar statutes has been attacked because they allow the enforcement of the lien by petition or special proceeding in a law court thereby depriving the defendant of the right of trial by jury. In answer to this argument it has been said that the constitutional right of trial by jury applies only to rights that existed at common law before the adoption of the Constitution, and does not apply to new rights created by the Legislature since the adoption of the Constitution.
In re King, 168 N. Y. 53, 60 N. E. 1054; O’Connor v. St. Louis Transit Co., 198 Mo. 622, 8 Ann. Cas. 703; Wait v. Atchison, etc., R. Co., 204 Mo. 491, 103 S. W. 60; Standidge v. Chicago Railways Co., 254 Ill. 524, 98 N. E. 963, Ann. Cas. 1913 C-65.
(3) The act created a lien upon the cause of action in favor of the attorney, and requires the defendant to take notice of the lien and respect it. The parties to the suit have the right to make a settlement, hut in making such settlement, the act requires that they shall take into consideration the fact that the attorney has a lien upon the cause of action and provides for its enforcement in the action to the end that the parties may not ignore his lien, and deprive him of his rights under his contract.
(4-5) Counsel for the defendant also insists that that portion of the judgment attempting to charge the roadbed and equipments of defendant with a lien to secure the judgment of appellees is without authority of law. The action of the court in this respect is based upon section 6661 of Kirby’s Digest. That section, among other things, provides that every person who shall sustain loss or damage to person or property from any railroad for which liability may exist at law, shall have a lien on the railroad, its belongings, equipments, etc., for said loss or damage. It is conceded that under this statute the plaintiffs in the original case, Mr. and Mrs. Burris, would have a lien on the roadbed and equipments of defendant for any judgment obtained by them, but it is insisted that the statute is not broad enough to bring the attorney’s lien under its provisions. The statute giving the attorney a lien upon his client’s cause of action was passed subsequent to this statute and must be construed with reference to it. The section of our statute giving the lien to an attorney is remedial in character and must be liberally construed to effectuate the purpose sought to be accomplished by its enactment. The statute provides that the light to the lien in favor of the attorney can not be affected by any settlement between the parties before or after judgment. The lien created in favor of the attorney is not a general lien, but is a specific lien on the subject-matter of the controversy. As we have already seen, it can be preserved only by permitting judgment in favor of the attorney where a settlement has been made without his consent between the parties before judgment, The attorney’s lien was given to protect his compensation by charging it against the judgment or proceeds of settlement which had been secured to his client by his services. So if the attorney is entitled to have judgment awarded against the defendant for the amount of his compensation where there has been an honest settlement between the parties, we think it follows that this judgment should be a lien upon the roadbed and equipments of the railroad company, or else the very purpose of the statute will be defeated. We think the statute creates a lien in favor of the attorney on his client’s cause of action in whatever form it might assume in the course of the litigation, and enables him to assert his lien in the same manner that his client could assert against the roadbed and equipments of the railroad company.
It follows that the judgment will be affirmed. | [
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Smith, J.
This action was instituted by the appellee bank against appellants, for the purpose of enforcing a vendor’s lien on certain town lots, which was reserved in the deed of conveyance. The consideration for this deed was four notes, each for $150, payable to the order of P. P. Jones, the vendor, and signed by A. C. Harrison, the purchaser. These notes were dated September 25, 1913, and were due, respectively, January 1,1914, July 1, 1914, January 1, 1915, and July 1, 1915. The deed from Jones to Harrison was of even date with the notes, and was filed for record on November 27, 1914.
Jones borrowed $489.96 from the bank and made a note therefor, due ten days after date, and, upon the maturity of this note, he proposed, as a consideration for an extension of time, to deposit the four notes given him by Harrison, as collateral to his own note, and this was done.
Witherspoon & Barton recovered a judgment against Jones, upon which an execution was issued, and they became the purchasers of the lots in question at the sheriff’s sale under, this execution on November 28, 1914, for the sum of $580, and received from the sheriff a certificate of purchase reciting that fact. Upon failure by Jones to pay his note to the bank, this suit was brought for the purpose of foreclosing the vendor’s lien reserved in favor of Jones in his deed to Harrison. It was alleged in this complaint that Witherspoon & Barton were asserting some interest in these lots, and they were made parties to this proceeding, and there was a prayer, as against them, that they be required to set out their interest in the lots. Separate answers were filed by both Witherspoon & Barton and by Harrison. In these answers it was alleged that Jones had sold the lots in question to Harrison, who had defaulted in his payments, whereupon it had been agreed between Jones and Harrison that the deed should not be placed of record, but should be destroyed, and the notes cancelled, and that no authority existed for recording the deed, and that Jones and the officers of the bank had conspired together to defraud both Wither-spoon & Barton and Harrison, and had placed the deed of record for that purpose. That Harrison had surrendered the possession of the lots, and Jones was in possession of them at the time of the delivery of the collateral notes to the bank, and that the bank was not an innocent purchaser of the notes, and that the notes had never been assigned to it. Issue was joined upon these allegations.
We need not consider the effect of the agreement, if one was made, between Jones and Harrison for the cancellation of the deed. It may be said, however, that, if there was an agreement for the destruction of the deed, it was never carried out, for the deed was not destroyed, but was delivered by Jones to the bank along with the notes which constituted the consideration for its execution. Harrison was notified when the first of these notes fell due, but he did not pay it, nor did he respond to the notice, and he made no demand for his notes, and the proof does not show that the bank was advised of any agreement between Harrison and Jones in regard to their cancellation.
The chancellor found that the bank was an innocent purchaser of the notes, and if this was true, its rights are not affected by any agreement between Jones and Harrison for the destruction of the deed of which it was not advised. Both Jones and the cashier of the bank testified that the notes were endorsed by Jones to the bank at the time they were deposited by Jones as collateral for the extension of his note to the bank. This would have accorded with the usual custom in such matters, and, upon a consideration of all the evidence in the case, we are unable to say that the finding of the court below to this effect is clearly against the preponderance of the evidence.
Witherspoon & Barton purchased at their own execution sale, and the amount of their bid is a credit upon their judgment, and they, therefore, take the title subject to the prior equities of other parties. Sturdivant v. Cook, 81 Ark. 279.
If the bank was, in fact, an innocent purchaser of the notes, and we can not say that the chancellor’s finding to that effect is clearly against the preponderance of the evidence, it follows that it is entitled to the benefit of the lien reserved in the deed from Jones to Harrison under section 510 of Kirby’s Digest, which provides that “the lien or equity held or possessed by the vendor of real estate, when the same is expressed upon or appears from the face of the deed or conveyance shall inure to the benefit of the assignee of the note or obligation given for the purchase money of such real estate, and may be enforced by such assignee.”
It follows, therefore, that the decree of the court below, ordering the foreclosure of the vendor’s lien in favor of the bank, should be affirmed, and it is so ordered. | [
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Mehaffy, J.
In 1903 the railroad company, at that time the St. Louis, Iron Mountain & Southern Railway-Company obtained a right-of-way deed from John Swaf-ford and his wife, Roxie Swafford, to a right-of-way over certain lands in Boone County, Arkansas. It after-wards built its railroad across the Swafford land, but the evidence does not show at what date. In building its railroad it made a cut of about 100 feet deep and, appellees allege, 300 feet wide. The evidence does not show the width of the cut, but it does show that it is 125 feet deep in some places, and it would necessarily be very wide.
The cut divided the land belonging to Swafford so that 50 or 60 acres was on one side of the road, and the balance on the other. This was the home of the Swaf-fords, and it was necessary to get to portions of the farm, to cross the railroad tracks where this cut was made.
The railroad company, at the time it made the cut and built its road, built a viaduct on a public road which crossed the railroad tracks immediately in front of the Swafford home. This viaduct was maintained and used by the St. Louis, Iron Mountain & Southern Railway Company, and its successor, the appellant, until 1930. In 1930 the State Highway Department made some changes in State Highway No. 43, and built a concrete viaduct across the railroad tracks a considerable distance from the place where the old wooden viaduct crossed the track. When the concrete viadnct was built, the appellant destroyed the wooden viaduct, thereby making it practically impossible for the Swaffords to g'et from their home to the land which was on the other side of the railroad track, without travelling- two or three miles.
This suit was broug-ht by appellees to recover for damages to their land caused by the destruction of the wooden viaduct.
The appellant answered denying all the material allegations of the complaint, alleging that the county court of Boone County had ordered a destruction of the viaduct, and that it acted in obedience to that order, and that it had entered into a contract with the Highway Department, which contract was introduced in evidence.
The appellees introduced evidence as to the destruction of the viaduct and the damage caused to their farm. They claim the farm was damaged in the sum of $2,000. There was a verdict and judgment for $1,000, and the case is here on appeal.
At the time the viaduct was built, the road leading across the track to appellees’ house was a public road. The evidence shows that it is a county road. It has never been, and is not now, according to the evidence, a part of the State highway system. The Highway Department has never had any jurisdiction or control over it.
Section 6681 of Kirby’s Digest, which is now section 8483 of Crawford & Moses’ Digest, provides that whenever any railroad company has constructed or shall hereafter construct a railroad across any public road or highway of this State, now established or hereafter to be established, such railroad company or corporation shall be required to so construct the railroad crossing" that the approaches of the railroad bed shall be kept at no greater than a certain elevation, and further provides that at any crossing of any public highway such railroad may be crossed by1 a good and safe bridge, to be built and maintained in good repair by the railroad company or corporation owning or operating such railroad. It was therefore the duty of the railroad company, when it built its road and made the cut, to build a good and safe bridge, and maintain it in good repair. It did this and maintained the bridge until 1930, when it destroyed it.
The law provides for the bridge over the tracks at crossings like this, and no order of the county court or contract with the Highway Department would affect ap-pellees ’ right to recover if they had been damaged by the destruction of the bridge by appellant.
Section 22 of article 2 of the Constitution of Arkansas reads as follows: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor.”
Our Constitution provides that the owner of property may recover, although his property has not been taken nor appropriated, if it has been damaged.
It was the duty of the appellant under the law to maintain the bridge, and the destruction of it, according to the evidence, necessarily damaged the appellees.
Appellant filed motions for continuances because, while'it relied on the order of the county court, it discovered that there had been an appeal taken to the circuit court, and the circuit court had held that the order of the county court for the destruction of the bridge was void. The appeal was taken without notice to appellant, and it did not discover the order of the circuit court, it alleged, in time to prepare for its trial.
The court did not err in refusing to grant a continuance, because neither the order of the county court nor circuit court could deprive the appellees of the right to damages if their property had been injured, and no order that any court would make would render ineffective the provision of the Constitution above quoted.
It is therefore unnecessary to set out the order of the county and circuit courts, and the evidence with reference thereto. No matter what the order might- have been, if appellees’ property was damaged by the appellant’s destruction of the bridge, they had a right to recover.
Appellees contend that at the time they conveyed the right-of-way to the railroad company it was agreed that the bridge would be built and maintained, and that this was a part of the consideration for the right-of-way.
Mrs. Swafford testified that the bridge had been maintained for many years, she thought ever since 1908, and that the cut was 75 feet deep, and at some places 125 feet deep. It had been so maintained for many years when appellees spent considerable money improving their house, with the understanding and belief that said bridge would continue to be maintained.
On cross-examination appellant’s attorney asked Mrs. Swafford: “You allege in your complaint that when the railroad company purchased the right-of-way, they agreed to build the bridge, is that true?’’ Answer: “Yes.” She also testified that she had always understood it that way. Swafford himself died before the trial, and, of course, they could not have his testimony.
The undisputed facts show that this was a county road, running right up to appellees’ house; that the bridge was built when the cut was made; that it was constantly maintained for many years, and the jury had a right to believe Mrs. Swafford when she testified that the building and maintaining of the bridge was a part of the consideration for the right-of-way.
As a general rule, parol evidence is inadmissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed in the written instrument. To this rule, however, there are exceptions. We recently quoted with approval, as stating the rule, the following: “It seems, according to the American cases, that the only effect of a consideration clause in a deed is to estop the grantor from alleging that the deed was executed without consideration, and that for every other purpose, it is open to explanation, and may be varied by parol proof.” Whitlock v. Barham and Duncan, 172 Ark. 198, 288 S. W. 4; Texas Co. v. Snow, 172 Ark. 128, 291 S. W. 826; Rowland v. Ward, 178 Ark. 851, 12 S. W. (2d) 785; Jackson County Gin Co. v. Mc Quistion, 177 Ark. 60, 5 S. W. (2d) 729; Vinson v. Wooten, 163 Ark. 170, 259 S. W. 366; Newell Contracting Co. v. Elkins, 161 Ark. 625, 257 S. W. 54.
But, even if there were no evidence of a consideration other than that expressed in the deed, the fact that the law, at the time, required them to build the bridge; that it was built and maintained for many years, and that it is still the duty under the law to maintain a bridge on a public road, would make it liable for the destruction of' the bridge if such destruction damaged the property of the appellees.
In the view we take of the matter, it is wholly immaterial whether the railroad company had notice of appeal to the circuit court, and it is also true that appellees’ rights could not be affected by any order of the court or any order or contract with the Highway Department.
Finding no error, the judgment is affirmed. | [
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"Ward, J.
Appellant Pinkert instituted this action in chancery court to quiet his title to certain vacant lots and to remove as a cloud on his title an adverse claim asserted by appellee Baird. Appellee answered setting forth his claim of title to the same property and in the alternative asked that the court require appellant to reimburse him for all improvement and general taxes he had paid on said lots since 1939. To the latter plea appellant interposed the three year statute of limitation. The trial court found that appellant had good title to the lots and confirmed his title to the same, and from this portion of the decree appellee has not appealed. The trial court further held that appellee was entitled to judgment against appellant for the amount of all taxes paid by him, and for a lien on the lots to secure payment of same. From this portion of the decree appellant prosecutes this appeal.
Since no question is presented here as to the title to the property, the facts relative thereto may be briefly stated. On December 15, 1938 appellee received from the City of Little Bock a deed to lots 1, 2 and 3, Block 19, Capitol Hill Extension to the City of Little Bock and since that date, up to and including the year 1953, appellee has paid improvement and general taxes on said lots in the amount of $1,941.68. On May 26, 1944 appellant received a deed to the same lots from W. I. Stout, trustee, who in turn had received a deed through Sewer Improvement District 94.
Appellant concedes that appellee is entitled to be reimbursed for all taxes paid on said lots for three years prior to the institution of this suit, but strongly insists that appellee is barred by the three year statute of limitation from recovering for taxes paid previously thereto. In support of this contention appellant relies on Brookfield v. Rock Island Improvement Company, 205 Ark. 573, 169 S. W. 2d 662, 147 A. L. R. 451, stating that it settles the question here presented. We are unable to agree with appellant in this contention.
Briefly stated the facts and the holding in the Brookfield case, supra, are as follows: Rock Island sued Brookfield “alleging that, under a bona fide claim of title, it had paid taxes for many years on lands owned by Brookfield. It asked judgment for such taxes, with interest, for a lien on the land to secure the payment of the judgment, and for a foreclosure of such lien.” Brookfield plead the three year statute of limitation. The trial court gave judgment in favor of appellee for taxes paid over a period of 18 years, with interest, and declared a lien on the land. On appeal we held that, notwithstanding there was sufficient evidence to show that Rock Island had paid the taxes in good faith, claiming to be the owner of the land, the three year statute of limitation barred a recovery for all amounts paid more than three years before the suit was instituted.
The Brookfield case, supra, was cited and followed in Lincoln National Life Insurance Company v. Huff, 210 Ark. 833, 197 S. W. 2d 927, wherein the facts were essentially the same as in the Brookfield case.
After a careful review of other decisions of this court, we have, with some hesitancy, concluded that the facts in the above cited cases are distinguishable from the facts in this case, and that they are therefore not controlling here.
It will be noted that in the Brookfield casé, supra, and the Huff case, supra, the party seeking to recover for taxes paid on land in good faith under color of title was the same party who instituted the action. In such cases the holding seems to be that the three year statute of limitation will apply in favor of the adverse party. These holdings are apparently based on the theory that the plaintiff’s cause of action [for the recovery of taxes] accrued when the taxes were paid and that his right of action to recover the same must be brought within three years after payment. We have held however that the situation is different where the plaintiff comes into a court of equity to have his title quieted to certain lands against one who has, under color of title, paid the taxes for many years, and is met by a request by the defendant for a repayment of ¿11 taxes paid by him on the land. In such instances we have held that before the plaintiff can invoke equity he must do equity by repaying all taxes. This is on the theory that the plaintiff has been benefited to the extent of the tax payments which he would have had to make had they not been made by the defendant.
The Brookfield case, supra, was thus distinguished in the case of Turner v. Grove Land and Timber Company, 208 Ark. 921, 188 S. W. 2d 121, where it was specifically referred to. In speaking of the Brookfield case the court said:
“The defendant pleaded the three year statute of limitation. We held the trial Court was in error iu not sustaining the plea. But the opinion, by express language, states the facts to be that the plaintiff had paid taxes on land owned by Brookfield. It could not, therefore, become the beneficiary of equitable relief in a proceeding it instituted, when met by the legal defense of limitation. ’ ’
In applying the equitable doctrine mentioned above the court also said: ‘ ‘ Our view is that the Court properly imposed the condition that, as a prerequisite to his plea for equitable dispensation, Turner ivas required to reimburse the defendant for money necessarily applied to protect its property, full benefits of which went to the plaintiff to prevent forfeiture.” Just as in the case under consideration Turner prevailed in the trial court on the question of title and was ordered to refund to the Timber Company all taxes it had paid on the land [for more than three years]. On appeal the decree of the trial court was sustained.
In Walsh v. Buckner, 209 Ark. 320, 190 S. W. 2d 447, the Turner case, supra, was referred to and followed although it was not discussed at length. There, again, appellant filed a petition in chancery court to confirm title to [among other lands] the NE^4 of the SE1/^, Section 18, Township 3 South, Range 10 West, and the trial court upheld his title. In that case Buckner was allowed to recover all taxes paid since 1918 — a period of approximately 20 years. This court there cited the Turner case as authority for requiring Walsh to reimburse Buckner for all the taxes which he had paid.
In the case under consideration appellee in good faith and under color of title paid the improvement and general taxes on the lots in question over a period of approximately 14 years which otherwise appellant would have had to pay. Appellant invoked the aid of the chancery court to cancel appellee’s deed as a cloud on his title. As an incident to the trial court’s granting the relief prayed for by appellant it required appellant to do equity by reimbursing appellee for all the taxes which he had paid. After a careful consideration of the decisions of this court in the above cited cases we have concluded that the decree of the trial court was correct and that the same should be and the same is hereby affirmed. | [
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Minor W. Millwee, Associate Justice.
Appellees are the owners of certain hotels and bathhouses located outside the boundaries of Hot Springs National Park but within the city of Hot Springs, Arkansas, and are engaged in the business of giving baths in the therapeutic waters of the government-owned hot springs. Appellants are the officers and members of the “Arkansas Board of Massage, ’ ’ created pursuant to Act 180 of 1951, which is known as the “Massage Registration Act.”
Appellants brought this suit alleging appellees were employing many persons as masseurs and masseuses who were unqualified to engage in the practice of massaging because of their failure to obtain a certificate of registration in compliance with Act 180, and that such employment was in violation of Section 3 of said act. None of said employees were made defendants to the suit, it being alleged that individual criminal action against them would be so numerous that adequate relief could not be obtained against the irreparable injury which it was further alleged the public would suffer by failure of appellees to comply with the act. Appellants asked that appellees be enjoined from further violation of Sec. 3 (b) of said act.
Appellees demurred to the complaint on the following grounds: 1. The complaint does not state facts sufficient to constitute a cause of action. 2. Plaintiffs have no legal capacity to sue. 3. There is a defect of parties plaintiff. 4. There is a defect of parties defendant. The chancellor sustained the demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action against appellees and overruled it as to other grounds urged. Upon appellants ’ failure to plead further, the complaint was dismissed. The appellant board members have appealed and part of the appellees have cross-appealed from the action of the court in refusing to sustain the demurrer on the additional grounds of,appellants’ incapacity to sue and a defect of parties defendant.
The question on direct appeal is whether the complaint stated a cause of action against appellees for violation of Section 3 (b) of Act 180 of 1951 [Ark. Stats., Sec. 72-1203 (b)] which reads:
“It shall be unlawful for any person or persons to operate or conduct any Massage Establishment which does not conform to the sanitary regulations herein contained, or which may be adopted by the Board created herein, or to employ any person or persons as an operator or instructor who does not hold a certificate of registration, or to open and conduct a Massage Establishment or School in a place of residence in the State of Arkansas.” (Italics supplied.)
It should be noted that the complaint does not charge that appellees failed to conform to sanitary regulations contained in the act, nor that they conducted a massage establishment or school in a “residence.” So the real issue is whether the only other prohibition in Sec. 3 (b) makes it unlawful for appellees to employ any person as a masseur or masseuse who does not hold a certificate of registration, as appellants contend, or whether it merely makes it unlawful for them to employ any person as an “operator” of a massage establishment or an “instructor” in a massage school if such person does not hold a certificate of registration, as appellees insist. We think the chancellor correctly adopted the latter view.
To adopt appellants’ contention, we must construe the word “operator” as having been used by the Legislature as synonymous with the words “masseur or masseuse. ’ ’ While it has various meanings, the Legislature obviously used the word “operator” in the subsection in the same sense that the word “operate” is used therein; and that is that an operator is “one who operates” a massage establishment, just as an “instructor” is one who instructs at a massage school. This is the first and general definition given the word in Webster’s New International Dictionary. This view is fortified by consideration of other sections of the act which define the terms, “masseur and masseuse,” “massage establish ment,” “massage school” and “massage,” but do not define “operator” or “instructor.” Section 11 of the act makes it unlawful for any person “to own, manage or operate any massage school or establishment, ’ ’ unless certain sanitary requirements are met.
Even if there were some ambiguity in the meaning to be placed on the wording of Section 3 (b), we would reach the same conclusion. The act is in derogation of the common law and is highly penal with a maximum penalty of a jail sentence of six months and a fine of $500 upon conviction for violation of its provisions. Under our well settled rule it must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. State v. International Harvester Company, 79 Ark. 517, 96 S. W. 119. As this court said in Holford v. State, 173 Ark. 989, 294 S. W. 33: “There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature.” See also, Giles v. State, 190 Ark. 218, 78 S. W. 2d 70.
Since we have concluded that the trial court correctly dismissed the complaint against appellees on the ground that it did not state facts sufficient to constitute a cause of action against them, we find it unnecessary to determine the moot question as to whether the court erred in refusing to sustain the demurrer on other grounds as contended by some of the appellees on cross-appeal.
Affirmed.
Justice Ward dissents.
In Ladwig v. Nance, 223 Ark. 559, 267 S. W. 2d 314, we held that Act 180 had no application to bathhouses located within the Hot Springs National Park. | [
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Robinson, J.
This is a suit brought by appellee Ethel Lee Winfield against appellant American Fidelity Fire Insurance Company to collect on a policy of fire insurance covering an automobile which was destroyed by fire.
The insurance company contends that notice and proof of loss were not given according to the terms of the policy. The cause was tried before the court sitting as a jury and there was a judgment for the policyholder in the sum of $700.00. It is further maintained by appellant that the judgment is excessive.
Appellee lives on a farm, owned by C. B. Walker, which is about one and a half miles south of Whitmore, Arkansas. In July of 1952, she bought an automobile from the McCall Chevrolet Company in West Memphis. The purchase was financed through the Mid-Continent Finance Company, and that company procured the policy of insurance. Appellee never had any contact with the insurance company except through the finance company, and the policy was sent to her by the finance company. For its services in connection with the sale of the policy, the finance company was paid a portion of the premium by the insurance company.
On the 4th day of July, 1953, Walker, appellee’s landlord, borrowed her car to go down in the fields to inspect his crops. While on this trip the car caught fire and was destroyed. Mr. Walker, in behalf of appellee, undertook to notify the insurance company of the loss. He wrote to the finance company from whom appellee had received the policy in the first instance. Receipt of this letter was acknowledged. It appears from the evidence that he also wrote to the insurance company by sending a letter in accordance with the terms of the policy to the Central States Insurance Agency, 1 Brentwood Street, Clayton, Missouri. In this letter he requested that forms be furnished to make proof of loss. Although the insurance company contends this letter was not received, it was never returned to the sender.
Where a letter is properly mailed, it is presumed that it is received by the party to whom it was addressed, and that it reached him in due course of mail. Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S. W. 913; Ann. Cas. 1912D, 1062.
In Travelers Insurance Company v. Thompson, 193 Ark. 332, 99 S. W. 2d 254, this Court quoted from the Southern Engine & Boiler Works case as follows: ‘ ‘ ‘ This presumption could he rebutted by testimony that it was not in fact received, but the positive denial by plaintiff that same was received would not be sufficient, as a matter of law, to nullify the presumption of its receipt. Such testimony simply left the question as to the receipt of the letter for the determination of the jury under all the testimony adduced at the trial. ’ ’ ’
Walker testified to the effect that he properly mailed the notice in accordance with the terms of the policy. This testimony, coupled with the presumption that it was received by the addressee, constitutes substantial evidence to sustain the court’s finding that the notice was in fact received by the company.
It being determined that the company received notice of the loss, the next question that arises is: Did the insurance company’s failure to acknowledge receipt of the notice of loss relieve the policyholder from furnishing proof of loss within the 60-day period provided by the policy?
When appellee received no reply to the letter written to the insurance company, she engaged an attorney to look after her interests. The attorney wrote to the insurance company at 7 Brentwood Street, Clayton, Missouri, the address given as the office of the insurance company’s agent, but the name of the insurance company was given as the addressee instead of the agency. This letter was .unclaimed and returned to the attorney. He then notified the finance company as follows: “On July 7th, you wrote Mr. Walker that this claim should be taken up with the insurance carrier involved. A letter written by me to the address shown on the policy has been returned. Unless you can put me in touch with the company at once and some adjustment can be made of this loss, it will be necessary for Ethel to sue American Fidelity Insurance Company.”
The finance company, which, had received part of the premium in the first instance as its commission in selling the policy to appellee, merely replied to the attorney that they thought an American Fidelity Insurance Company policy had been mailed to appellee. We do not reach the point, however, as to whether the finance company was acting as agent for the insurance company, because Walker’s testimony was sufficient to make a jury question as to the insurance company’s being notified directly.
The insurance company did not acknowledge receipt of the notification, and proof of loss was not furnished within the 60 day period as provided by the policy; but, in the circumstances, the company is not in a position to declare a forfeiture by reason of the failure of the policyholder to furnish proof of loss. On the subject of acts constituting waiver of proof of loss, it is said in Apple-man’s Insurance Law and Practice, Volume 5, § 3633: “It has been stated that unless there is a bona fide attempt by the company to adjust a loss, there is a refusal to pay. Therefore, the mere effect of silence or inaction might be sufficient to excuse compliance. ’ ’
In Ward v. Pacific Fire Insurance Company, 115 S. C. 53, 104 S. E. 316, it is said: “While there was no express or unequivocal denial of liability during the period of time prescribed in the policy within which proofs of loss were to be and might have been furnished, yet defendant’s silence, in the light of facts and circumstances, clearly warranted the inference that liability was and would be denied, as it was in fact denied, and plaintiff was warranted in so believing and in acting accordingly. . . . The company received the notice of loss in due time, and, in fairness, it should have notified plaintiff that he must furnish proofs of loss, as required by the policy, if it intended to pay the loss.”
In the case at bar, the court, sitting as a jury, found from substantial evidence that the company received notice of the loss. Having received such notice, and failing to acknowledge it or request proofs of loss, the company could not declare a forfeiture because proofs of loss were not furnished.
As to the value of the car, Ben Few, Jr., an expert, testified that in his opinion the automobile was worth somewhere between $695.00 and $795.00. There was no other testimony on evaluation. The testimony given by Few was substantial evidence of a value of $700.00.
Affirmed.
Justices McFaddiN and George Eose Smith dissent. | [
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Paul Ward, Associate Justice.
This appeal challenges the permanent order of the Chancery Court of Sebastian County, Fort Smith District, which restrained Local Union No. 29 of Fort Smith from picketing the place of business of the Daniel Plumbing & Gas Company, Inc., while it was engaged, as a sub-contractor, in installing plumbing and pipe fittings for a new factory building being erected in Fort Smith for the Eastern Metal Products Corporation.
On March 16, 1955 the Daniel Company filed a complaint containing, in substance, the following material allegations: The Daniel Company is a corporation duly organized and existing under the laws of this state with its principal place of business at Beebe, Arkansas; The appellants are officers and representatives of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 29; On or about February 8, 1955 the Daniel Company was awarded the contract for the installation of the necessary plumbing in the factory building above mentioned; On March 10, 1955 one of appellants, W. C. Atwell, placed a picket at said building site and continues to picket said site; On said date the Daniel Company was employing both union and nonunion employees, and there is and has been no dispute between the Daniel Company and any of its employees over wages, hours or working conditions; The Daniel Company has not refused to negotiate with the union and has not discriminated against organized labor or said union; Said picketing is unlawful and is intended to obtain a closed shop, either contractually or non-eontractually, in violation of the constitution of this state, and is intended to coerce the Daniel Company into unlawful discrimination against its employees who are not members of said union; As a result of the picketing all union employees of the Daniel Company and other contractors engaged in erecting said factory building have ceased working, and; Unless said picketing is restrained the Daniel Company will suffer irreparable damage. The prayer was for a temporary restraining order.
After a temporary restraining order -was issued on March 18, 1955, the union, on April 9, 1955, answered that said temporary restraining order denies to them their right of free speech as guaranteed by the Federal Constitution; and the issuance of a permanent restraining order would likewise deprive them of the right of free speech.
The general factual background out of which this controversy arises is, summarily stated, as follows: The Daniel Company is a corporation located at Beebe. Its president is John B. Thurman of Little Rock and its active manager or superintendent is E. B. Daniel who lives at Beebe. Merl Daniel, the 28 year old son of E. B. Dan iel, acts as superintendent on specific jobs. The Daniel Company obtained a contract from J. S. Davis & Sons who in turn had the general contract for building a new factory building for the Eastern Metal Products Corporation at Fort Smith. The latter part of February 1955 young Daniel, as field superintendent of the Daniel Company, went to Fort Smith for the purpose of installing the plumbing equipment in said building, and had unloaded some material at the construction site. He got the job under way about the first of March 1955 and soon thereafter employed a Mr. Rice who was a union plumber living in Fort Smith and one other non-union plumber who lived at Beebe. Young Daniel was himself a plumber and did manual labor on the job as such.
After Rice had been working on the job for two days an agent of the union, Mr. Atwell, came on the job and stated to young Daniel that he wanted to negotiate to have Rice’s Avages raised to the extent of $1.00 an hour. While Rice had been working he Avas paid at the rate of $2.75 per hour which was the prevailing union Avage scale for plumbers in Fort Smith, and Rice had made no demand for a wage increase. When Young Daniel told Atwell that he had no authority to negotiate for wage raises, AtAvell immediately left and Rice walked off the job promptly thereafter. About an hour and twenty minutes later Rice Avas back picketing Daniel’s place of operation. As a result of this all union men working for appellee and the general contractor Avalked off the job.
Set out below is a summary of the pertinent testimony of the witnesses.
Felix Vosel, a witness for appellee, is an employee of the J. S. Davis & Sons Construction Company which has the general contract for erecting the building in question. I have been such employee for 17 years. The Daniel Company started assembling its material about the 23rd or 24th of February 1955 but had not at that time started work on the job. About that time I saw Mr. Atwell, an agent for Local 29, at the construction site and he asked me who had unloaded the materials for the Daniel Company, and I told him I did not know. I asked him what he was going to do about it and he replied that they were going to close the job down for 90 days.
Lee Davis a witness for appellee. I have lived in Port Smith for 50 years and am a member and senior partner of the J. S. Davis Lumber Company, Construction Division, and we have a contract to erect the factory building in question. Our contract amounting to approximately $400,000 was awarded last fall. I am a member of and a contributor to the Port Smith Industrial Foundation which promoted the securing of the Eastern Metal plant for Port Smith, and as such attended a meeting of the Foundation Committee at the Chamber of Commerce building the latter part of February 1955. This meeting was called at the request of Mr. Folsom and Mr. Atwell [members of Local 29]. Besides those men at this meeting there were presidents of three local banks, Mr. Frank Shaw [an attorney] and Mr. Jack Rose [attorney for the union], and possibly some others. When Mr. Folsom was asked to state the purpose of the meeting he objected to my having a lawyer and a stenographer present. Mr. Folsom was informed that I had as much right to have an attorney there as he and his friend had, hut he refused to talk because the stenographer was there to take notes on the meeting. I finally agreed to dismiss the stenographer. He then stated that “they were there in the interest of securing the work for Fort Smith Men.” Mr. Atwell stated that he wanted to see Fort Smith men get the work, and I said you mean union men and, he said no, I don’t mean union men; Mr. At-well made a sign (pointing with his thumb) and said “Well we will take care of him over there.” I inferred that he was pointing to the court house since things have happened as they did and because all of the men Daniel brought in here were turned down on getting a license. Daniel had 11 men take the examination for license and all of them failed. Mr. Atwell is the business manager of Local 29 of the Plumbers and Steam Fitters Union. Mr: Daniel was not present at the meeting and had not come on the job at that time, and neither was any representative of the Daniel Company present. Under our general contract we have been employing nnion common labor and paying the nnion scale of wages. When the picketing started all my union men quit work and walked out. As far as I know the Daniel Company was employing both union and non-union plumbers and common laborers. None of our union employees have returned to work since the picket line was established, and our work is down and has been down since the 10th of March. The Daniel Company’s contract amounts to about 10% of the entire construction cost of the building.
Merl Daniel, field superintendent of the Daniel Company. I am 28 years old and live at Beebe, Arkansas and am a stockholder in the Daniel Plumbing and Gas Company, Inc. Avhich is a corporation; my father is secretary and treasurer of the company and John B. Thurman of Little Rock is the president. I am the field superintendent for our corporation in charge of the work at Fort Smith, but I had nothing to do with negotiating the contract with the corporation which it has with Eastern Metal Products Company. I am a licensed plumber and I work as such on these jobs including the one at Fort Smith. I unloaded a car load of soil pipe on February 23, 1955 — just took one day, and it was about a week after that before I got started work — around the first of March. I knew nothing of the meeting which has been described by Mr. Davis but learned about it later. Our firm usually employs both union and non-union men and I had both union and non-union journeymen plumbers on this job. I worked along trying to get the job started when the weather permitted until March 10th, and had both union and non-union journeymen plumbers on this job. I worked along trying to get the job started when the weather permitted until March 10th, and had been receiving material for the job. On that date Mr. Atwell came out on the job in the morning — it was the second time in my life that I had seen him. He said that all union contracts had been cancelled in town and that he was opening negotiations for new contracts and wanted to know if I would negotiate a contract with him; he said that he wanted a raise in pay from $2.75 an hour to $3.75 an hour. I had been paying the men on my job $2.75 an hour which was the prevailing union scale in Port Smith at that time. In employing men I made no distinction between union men and non-union men. Since coming to Port Smith I had the local newspaper carry an ad for help wanted. [A copy of the ad reads as follows: “Journeymen plumbers, $2.75 hour. Apply Daniel Plumbing and Gas Company. Eastern Metal Products job.”] This ad has run more or less continuously ever since I got to town. When I get the job fully going I will need about 8 or 10 men, but right now I need only 4, considering the weather and material. When anyone answered the ad I took their names and numbers so I could contact them later, and if local competent union or non-union plumbers apply I will employ them when I can and pay prevailing wages. I pay the same wages and have the same hours and conditions as prevail for union plumbers in Port Smith.
When Atwell came to see me and wanted a dollar an hour raise and I told him that I wasn’t in a position to negotiate until I saw my father and other members of the firm, Mr. Atwell said that would bring on more talk and immediately left. At the same time Mr. Rice (union employee) walked off with him — he had worked 2 days and one hour •— and in an hour and twenty minutes Rice was back carrying a picket sign, and, alternating with others, continued to do so. When I started to work I had working for me Mr. McEwing and Mr. Smith who lived in Beebe and a little later I employed Jack Rice the union plumber who lives in Port Smith. I also had a common laborer, Mr. Weese, who lives in Port Smith and since the picket has been up I have hired two others, and this is all the help I needed as my material was fouled up. I still have the ad running in the paper asking for applicants. Recently I haven’t called anyone to work for me because I haven’t needed them and I thought that others (union men) wouldn’t work anyway. I also have a Mr. Hamm and a Mr. Chambers working for me and they do not live in Port Smith. One or two men are working for me as plumbers pending an examination in Port Smith — they have a state license. I have made no investigation to find out if applicants were union or non-union men. I think Mr. Hamm has a nnion card. This is March 18th and the picket sign has been up since March 10th, and Mr. Atwell has made no overture to me and has not talked to me any further — I am willing to negotiate. I asked the employment office for some men — 2 or 3 came down (Rice was one of them and he had a union card). The employment office has not sent me any more men and won’t while the picket sign is up. I have never refused to negotiate v— I just had no authority to negotiate. Rice did not complain about wages.
Harvey Hopper, witness for Daniel. I have lived in Fort Smith 24 years — my business is plumbing and heating. The prevailing wage for journeymen plumbers is $2.75 an hour. The present contracts with Fort Smith contractors expire July 1, 1955. No one in Fort Smith pays more than $2.75 an hour which is the prevailing wage. The union is picketing no other place in Fort Smith.
W. C.' Ahvell, witness for union. I am business agent for Journeymen and Apprentices Local 29. Rice called me March 10th and said contracts had been can-celled and said he wanted me to represent him. I told Daniel all contracts had been cancelled. Daniel said “I am in no position to negotiate anything now.” I turned to Rice and said “Mr. Rice what do you want- to do” and he said “Well I asked you to represent me.” Although I am the negotiating agent for Local 29 I have not tried to bargain with Daniel since March 10th. All contracts with Fort Smith contractors have been can-celled. I did not ask for a closed shop. The purpose of the meeting -at the Chamber of Commerce was to get Fort Smith men on the job. If non-union men do work on a job the union men must get off or be subject to fining. We have cancelled no contracts in Fort Smith since March 9th, but are negotiating. None of our men get $3.75 per hour. All contracts in Fort Smith were can-celled March 9th by agreement. We couldn’t have can-celled the contracts before July 1, 1955, except by agreement. We' are not picketing any one else in Fort Smith. “Q. And now you mean to say that everybody in town that has a union contract has agreed for it to be can-celled? A. Yes, sir.” “We have contracts with Lutz Bros., L. D. Burris, Hayes Bros., G. O. Bell, John Rupp, Ralph O’Brien and George H. Donnas.” “Q. By this cancellation you are talking about, that is all have been by agreement with these other fellows, so you said?” “A. Yes sir — We are not picketing any one else in Fort Smith.”
After the temporary order was issued the following-testimony was later introduced.
Lester Burgess, for appellants, lives in Oklahoma— employed with Burris Heating and Plumbing Company. I am President of Union 29. Our union men take a secret oath which I am unable to recall. When the union needs men they call the “hiring hall” and Mr. Atwell and he sends out the men. He does not send out non-union men. There are no non-union men up there. Members of the union support the “hiring hall.” “Q. Therefore you are not interested in getting non-union plumbers any work? A. We are not interested because they do not belong to our organization.” The purpose of the picket line is usually a protest against some condition or wage. We picketed in this instance because we felt that Daniel was discriminating against our members because he wasn’t hiring the men we sent to him. The purpose of the picket line was to try to get some of our men to work. “Q. In other words, you are saying, in a round about way, that the purpose of it was to shut the job down, isn’t it? A. Well it worked that way, I suppose, Yes.” Daniel was bringing men in from over the state but didn’t hire our men. All Fort Smith contracts were can-celled by mutual agreement. “Q. You mean to say that you contacted each of these union contractors and he agreed that his contract would be cancelled? A. Yes, sir. Q. Do you remember who they were? A. Well I believe that it was Burris Heating and Plumbing Co., Herb Andrews Plumbing Co., Hayés Bros., and Joe Bender.” I know that contracts were cancelled with Lutz, Burris, Hayes Bros., Bell, Rupp, O’Brien and George Donnas, Atwell was authorized to send out the letter of March 9th cancelling the contracts.
G. 0. Bell — Lived in Port Smith since 1922, 64 years old, is in the plumbing business and has been for 24 years, operates G. 0. Bell Plumbing Co. — known as “union contractor” and has a contract with Local 29. I have been an officer in the union, president and on the board 30 years ago. I don’t remember ever getting a letter from Mr. Atwell attempting to cancel contract (after looking at the letter) this is the first I have heard about it. I have had no notice of cancellation. “Q. State whether or not by mutual agreement with Mr. Atwell, or the union, you agreed to the cancellation of the contract1? I haven’t talked to the man in a year — I have had no conversation with Atwell or the union about negotiating a new contract. ’ ’
Fred Luts, member of Lutz Bros. Plumbing Co. I have been in business 10 years in Fort Smith — 50 years old — am a union contractor —■ contract with Local Union. I received the letter in question. “Q. Is that the first notice you had that it was cancelled? A. The first notice that it was cancelled, yes sir. Q. Since that have you had any negotiations with reference to a new contract with Mr. Atwell or any member of the union? A. Not so far.”
John Thurman, president of Daniel Plumbing Co. I told Mr. Daniel to tell Mr. Atwell that if he wanted to negotiate to drop me a line and I would meet with him at any convenient time and be glad to talk with him.
W. G. Atwell, recalled. Since the temporary injunction I asked Merl Daniel if he would sit down and talk to us, he said he would let me know as soon as he got in touch with Mr. Thurman. I have never heard from him, he was in Florida.
After careful consideration of the record and also the arguments and citations presented by both sides we have concluded that this case presents to us a factual situation only. Stated another way, the question for con sideration relates to the weight and sufficiency of the evidence to support the Chancellor’s finding. So considered, it is onr further conclusion that the decision of the trial court is not against the weight of the evidence and that it must therefore be affirmed.
For clarity and convenience we classify appellants’ alleged excuses or reasons for picketing appellee’s place of operation as follows: (a) To secure work for Fort Smith labor both union and non-union; (b) To secure higher wages for Bice and perhaps other union employees of appellee; (c) Because appellee refused to employ union men, and; (d) Because appellee refused to negotiate.
It is onr opinion that the weight of the testimony accords with the Chancellor’s finding that appellants’ alleged excuses or reasons for picketing were not sustained or that they were non-existent.
(a) It was not a permissible objective for Local 29 to picket in order to force appellee to employ Fort Smith labor (including non-union labor) in preference to labor from other sections of the state. Such objective would tend to retard rather than promote the welfare of the union. In the case of Hughes, et al. v. Superior Court of California, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985, it was held unlawful to peacefully picket the owner of a store to force him to hire negro employees in proportion to their patronage. The reasoning employed there is, we think, applicable here. Moreover appellants’ witnesses admitted that the union was not interested in securing jobs for any one except its own members.
(b) We are not convinced by the testimony that the real purpose of the picketing was to secure higher wages for Rice. Rice was already receiving the prevailing union wages and had not expressed any dissatisfaction to appellee. All other union employees in Fort Smith were working for the same wage scale, although no other job was being picketed and although (as the testimony shows) the union was not negotiating for higher wages with at least some of the union contractors. In fact it was not shown by any union contractor that it was negotiating with appellant union. Statements were made that the union was negotiating with all Fort Smith contractors, but these uncorroborated statements were contradicted by two of the named contractors.
(c) We think the testimony justified the Chancellor’s finding that appellee did not discriminate against union laborers. When the picket was established on March 10th, appellee was just getting the job under way and needed, at that time, very few employees and particularly plumbers. It is not clear from the record just how many employees appellee had on the job at the stated time, but it does appear that they were divided fairly equal between union and non-union men. It is clear that appellee was employing two union men. It was stated that appellee did not call for any union men after March 10th, and that those who did apply for work were refused. In the first place the testimony does not disclose any specific instance where any union man so applied. Appellee admits it has not asked the (union controlled) “hiring hall” for any union workers since March 10th, but, as is clearly evident, it would have been a futile gesture. Not being able to know what Merl Daniel’s future plans were, it is possible that had the union waited a few days it might have been able to show discrimination but, in our opinion, none was shown to exist at the time the picket line was established.
(d) Likewise, we think, the testimony supports the finding that appellee did not refuse to arbitrate. Not only was it made clear that Merl Daniel had no authority to arbitrate, but he was given no reasonable chance to do so. It is not contended by appellants that Merl Daniel said he Avould not negotiate or that he was unwilling to do so. This was merely a hasty conclusion which Atwell drew and hastily acted upon. This conclusion, we think, was unjustified. It would not be justified in ordinary business relations and we know of no special reason why it should be here.
The remaining question is: Does the evidence sustain the Chancellor’s conclusion that Local 29 was picketing for a closed shop in violation of Amendment 34 of the Arkansas Constitution? We think it does.
It must be assumed that the able and experienced representatives of the union had some definite objective in establishing the picket line, otherwise their actions must be considered senseless. If, therefore, appellánts were unable to establish any other reason for picketing in this instance, then it is not unreasonable to deduce that the real purpose was to obtain a closed shop. Portions of the testimony lend support to this deduction.
It is not disputed that Atwell stated, approximately a week before appellee’s job actually began, that it would be closed down for 90 days. The incident at the Chamber of Commerce Hall is some indication that the union was planning to exert some kind of pressure or influence in behalf of its members. One union officer stated union members took a secret oath, the violation of which could subject them to penalties. Appellee made an unsuccessful effort to obtain the contents of this oath. Appellants’ testimony was evasive and unsatisfactory concerning when and how contracts with Port Smith contractors had been cancelled. Appellee’s testimony in that connection raises a suspicion that appellants’ whole contention in this regard may have been a subterfuge to justify the action they took. The testimony of appellant’s witness, Burgess, may have significance relative to the real objective of the picket line. At least the Chancellor had a right to so consider it in connection with all the other facts and circumstances.
“Q. Does your constitution and rules discipline a union man who works with a non-union man.
A. Quite possibly does.
Q. Well I believe you also stated that the other main purpose was to obtain union labor throughout?
A. Well that kindly follows along with it.
Q. The whole idea of your union and your reason for existence is to obtain contracts where only union people will be employed, isn’t it?
A. That is true but you will find in there a statement that any violation of state law cancels any portion of that.
Q. But your principal objective is to use every means you can to have the employers employ your members isn’t it?
A. Well certainly.
Q. No others.
A. (No answer)”
Appellants stoutly maintained throughout that they were not picketing for a closed union shop, but this entire record is a reminder of the old adage that offtimes actions speak louder than words.
Without relying entirely or especially on any one fact or circumstance mentioned above, it is our opinion that the record as a whole justifies the Chancellor’s decision that Local No. 29 established the picket line in question to force appellee to employ only union men, contrary to Amendment 34 of the Arkansas Constitution.
Affirmed.
Justices George Bose Smith and BobiNsoh dissent. | [
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Sam Robinson, Associate Justice.
Appellee Archie Sparrow filed this suit for specific performance, seeking to compel appellant Morris to deliver possession of a certain horse, which Sparrow claims Morris agreed to give him as part consideration for work done by Sparrow. The appeal is from a decree requiring the delivery of the horse.
Morris owns a cattle ranch near Mountain Yiew, Arkansas, and he also participates in rodeos. Sparrow is a cowboy, and is experienced in training horses; occasionally he takes part in rodeos. He lives in Florida; while at a rodeo in that state, he and Morris made an agreement that they would go to Morris ’ ranch in Arkansas and, later, the two would go to Canada. After arriving at the Morris ranch, they changed their plans and decided that, while Morris went to Canada, Sparrow would stay at the ranch and do the necessary work. The parties are in accord that Sparrow was to work 16 weeks for a money consideration of $400.00. But, Sparrow says that as an additional consideration he was to receive a brown horse called Keno, owned by Morris. However, Morris states that Sparrow was to get the horse only on condition that his work at the ranch was satisfactory, and that Sparrow failed to do a good job. Morris paid Sparrow the amount of money they agreed was due, but did not deliver the horse.
At the time Sparrow went to Morris’ ranch, the horse in question was practically unbroken; but during his spare time, Sparrow trained the horse and, with a little additional training, he will be a first class roping horse.
First there is the issue of whether Sparrow can maintain, in equity, a suit to enforce, by specific performance, a contract for the delivery of personal property. Although it has been held that equity will not ordinarily enforce, by specific performance, a contract for the sale of chattels, it will do so where special and peculiar reasons exist which render it impossible for the injured party to obtain relief by way of damages in an action at law. McCallister v. Patton, 214 Ark. 293, 215 S. W. 2d 701. Moreover, specific performance is authorized by Ark. Stats., § 68-1468, which provides: “Where the seller has broken a contract to deliver specific or ascertained goods, a court having the powers of a court of equity may, if it thinks fit, on the application of the buyer, by its judgment or decree direct that the contract shall be performed specifically, without giving the seller the option of retaining the goods on payment of damages. . . .” Certainly when one has made a roping horse out of a green, unbroken pony, such a horse would have a peculiar and unique value; if Sparrow is entitled to prevail, he has a right to the horse instead of its market value in dollars and cents.
Morris claims that the part of the agreement whereby Sparrow was to receive the horse was conditional, depending on Sparrow doing a good job, and that he did not do such a job. Both parties were in Chancery Court and the Chancellor had a better opportunity than this Court to evaluate the testimony of the witnesses; we cannot say the Chancellor’s finding in favor of Sparrow is against the preponderance of the evidence.
Finally, it is appellant’s contention that there was an accord and satisfaction between the parties which now precludes appellee Sparrow from recovering the horse. After the 16-week period expired, according to the undisputed evidence, Morris owed Sparrow a balance in money of $167.00. The parties met at a bank at Mountain View where Morris gave Sparrow a check for that amount and made a notation on the check, ‘ ‘ labor paid in full. ’ ’ Sparrow cashed the check, but he says that he only accepted it in payment of the money due, and that Morris still owes him the horse. Morris says the check was payment in full for everything he owed Sparrow; that the agreement about the horse was contingent on Sparrow doing a “good job,” and that he had failed in that respect.
Does the notation on the check, ‘ ‘ labor paid in full, ’ ’ conclusively show a settlement in full, or an accord and satisfaction, which bars Sparrow from enforcing the agreement as to the horse? We do not think so. In the first place, there was no dispute between the parties as to the amount of money due. Further, it does not appear that, at the time the check was delivered to Sparrow at the bank, it was clear that Morris did not intend to deliver the horse as agreed. In fact, while still at the bank, Morris agreed to turn the horse over to Sparrow, but wanted to do so on condition that Sparrow would not sell or dispose of him; Sparrow refused to accept the horse on that condition. Moreover, the check was for the correct amount of money, and if Sparrow had refused the check at that time, eventually he would have had to accept a cheek for that same amount, regardless of the disposition of the question about the horse. It is clear that the check was accepted by Sparrow only as payment in full of the money due, without considering the question about the borse. Sparrow testified that he first learned that Morris did not intend to make an unconditional delivery of the horse when they were “down at the bank and he paid me in full. ’ ’ Obviously, Sparrow was referring to payment in full of the money due; at no time did he recede from the position that he was entitled to the horse. If there had been a disagreement between the parties as to the amount of money owed by Morris, and Sparrow had knowingly cashed a check marked “payment in full, ’ ’ perhaps he would have been bound by the notation on the check; but such is not the case here. The Court said, in Worcester Color Co. v. Henry Wood’s Sons Co., 209 Mass. 105, 95 N. E. 392: “It is not every use of the words ‘in full to date,’ or equivalent phrase, which constitutes an accord and satisfaction in connection with the payment of a controverted claim. Many cases have arisen where the conditions have been such as to make it a question of fact whether there has been an accord and satisfaction, even though these words have been used where a payment has been made. . . .” See also notes 31 A. L. R. 1055, 75 A. L. R. 923. Here, it appears that Sparrow, in accepting a check marked ‘ ‘ labor paid in full, ’ ’ accepted it only as payment in full of the money due, about which there was no controversy.
Affirmed. | [
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Ed. P. McFaddin, Associate Justice.
This is a petition for writ of procedendo ad judicium ; and necessitates consideration of a situation wherein the accused demands a trial in Arkansas even though he is presently incarcerated in another State.
Petitioner Prank E. Pellegrini filed in this Court his petition for a writ of procedendo ad judicium against Honorable Paul Wolfe, Judge of the Sebastian Circuit Court in the 12th Judicial Circuit of Arkansas. The duly verified petition alleged: (a) that petitioner was, and had been since November 13, 1953, confined in the Texas Prison System at Huntsville, Texas (serving a 15-year sentence for robbery by assault); (b) that on January 13, 1954 the Prosecuting Attorney of the 12th Judicial Circuit of Arkansas (Honorable Paul Gutenson of Sebastian County) sent a warrant/detainer to the Texas Prison System stating that Pellegrini was accused of robbery committed in Sebastian County, Arkansas on January 11, 1953 and should be delivered to Arkansas authorities ; (c) that Pellegrini is anxious for, and en titled to have, a speedy trial in Arkansas on the charge pending against him in Sebastian County; (d) that Pellegrini asked the United States District Court for the Western District of Arkansas to have him extradited to Arkansas for trial in the Sebastian Circuit Court but such relief was refused on the ground that the Arkansas Courts had jurisdiction; (e) that Pellegrini has asked the Sebastian Circuit Court to have him brought to trial in Arkansas for the said offense alleged to have been committed in this State, but the Sebastian Circuit Court has refused his request; (f) that the effect of the warrant/detainer filed by the Arkansas Prosecuting Attorney with the Texas Prison System is to prevent Pellegrini from receiving trusty privileges or parole privileges; and (g) that petitioner is entitled to either a speedy trial on the Arkansas charge, or is entitled to have the warrant/detainer recalled and the Arkansas charge dismissed. The prayer of Pellegrini’s petition was for dismissal of the information, or, in the alternative, that this Court require the Judge of the Sebastian Circuit Court to have proper steps taken to bring Pellegrini to trial on the information which the Prosecuting Attorney had filed against Pellegrini in Sebastian County.
Pellegrini filed his own pleading in this Court, and along with the pleading there was a petition and affidavit praying that he be allowed to proceed in forma pauperis. We allowed the petititon to be filed and appointed Honorable Heartsill Ragon of the Port Smith Bar, to represent Pellegrini in this proceeding. Mr. Ragon entered into the discharge of his duties and has filed a brief and a reply brief in this Court, and is hereby commended for the conscientious discharge of his duties. Pellegrini makes the contentions now to be discussed.
I. Petitioner’s Claim for Discharge. Section 43-1708, Ark. Stats., comes to us from § 169 of Chapter 45 of the Revised Statutes and has been many times before this Court. The section reads:
“If any person indicted for any offense, and committed to prison, shall not he brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”
Pellegrini says that if the information was in fact filed against him in Sebastian County in 1953 (as he has been advised by the Prosecuting Attorney) then more than two terms of Court have passed since such filing and Pellegrini claims he is' entitled to discharge under the above quoted Statute, citing, inter alia: Stewart v. State, 13 Ark. 720; Ware v. State, 159 Ark. 540, 252 S. W. 934; Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777; Bishop v. State, 209 Ark. 1013, 193 S. W. 2d 489; Ponzi v. Fessenden, 258 U. S. 254, 66 L. Ed. 607, 42 S. Ct. 309, 22 A. L. R. 879.
But the defect in Pellegrini’s contention for discharge rests in the fact that he has never pursued the correct procedure to bring himself within that Statute. From the Texas prison he is now trying to say to Arkansas: “I am ready for trial”; yet the fact remains that ever since 1953 he has been beyond the jurisdiction of this State and incarcerated by a Sister State. Even now he is asking Arkansas to use its Sovereign Request to extradite him from Texas in order to stand trial here. In Fulton v. State, 178 Ark. 841, 12 S. W. 2d 777, we held that a prisoner in the Arkansas prison could invoke the two-term-discharge Statute; but in Lee v. State, 185 Ark. 253, 47 S. W. 2d 11, we held that a prisoner in a Federal prison could not avail himself of the two-term-discharge Statute until he had first requested trial in Arkansas and until it was shown that Arkansas could have secured his extradition if request had been made. We used this language:
“Appellant made no effort to demand trial while he was imprisoned in the United States Penitentiary, which lie could have done; and the fact that the State could have procured his presence in her court for trial on the indictments and did not do so deprived him of no right he was entitled to; and the court did not err in denying his motion for a discharge from the indictments pending in her court. ’ ’
The case at bar is governed by the Lee case: Pellegrini is not now entitled to claim relief under the two-term-discharge Statute because he is only now bringing himself within the purview of the Statute.
II. Duty on Arkansas to Seek Extradition. In the alternative Pellegrini claims that Arkansas should now seek to extradite him from Texas for trial in this State ; and with this contention we are in agreement. As pointed out in Lee v. State, supra, Pellegrini has a right to ask Arkansas to bring him here for trial; and since such demand has now been made, the Arkansas Court (in this instance the Sebastian Circuit Court) should require the Prosecuting Attorney (if he desires to try Pellegrini) to seek extradition at the Executive level and to pursue the matter with due diligence.
Arkansas should request Texas to let Arkansas have Pellegrini for trial. If Texas refuses, then Arkansas has done all that is possible* and the two-year-discharge Statute will not inure to the benefit of Pellegrini. If Texas requires, as a condition for granting such extradition, that Pellegrini execute some kind of waiver, then, unless Pellegrini will accomplish such waiver, he has not brought himself within the purview of the Statutory provision relating to two-term-discharge. If Texas does agree to the extradition on conditions met, then Arkansas must extradite and try Pellegrini with dne diligence or Pellegrini will be entitled to have the charges dismissed and .the warrant/detainer cancelled.
The writ of procedendo ad judicium is granted, as herein stated.
Mr. Justice Robinson dissents.
See Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, wherein we had occasion to consider a writ of procedendo ad judicium and our authority to issue such a writ under our power of supervision.
The files reflect that the Texas prison officials then replied that Pellegrini could not be delivered to the Arkansas authorities until conclusion of his sentence, unless the Chief Executive of Texas should order otherwise.
See Art. II, § 10 of the Arkansas Constitution.
This section is sometimes referred to as the “two-term-discharge” Statute; and will be so referred to in this opinion.
Arkansas adopted the then Uniform Criminal Extradition Act in 1935 (Act 126 of 1935, see § 43-3001 Ark. Stats.). Texas adopted a later version of the Uniform Criminal Extradition Act by its Chapter 438 of 1951. See Vernon’s Anno. Code of Criminal Procedure, Art. 1008(a). For an Arkansas case considering our Criminal Extradition Act see Gulley v. Apple, 213 Ark. 350, 210 S. W. 2d 514. For a case somewhat like the one at bar see People v. Peters, 101 N. Y. Supp. 2d 755, in which certiorari was denied by U. S. Sup. Ct., 347 U. S. 906, 98 L. Ed. 1064.
Some of the Judges are in doubt as to whether the information filed by the Prosecuting Attorney in the Municipal Court of Fort Smith was ever pursued by being' docketed in the Circuit Court. We leave it to the Circuit Court to exercise its power over the Prosecuting Attorney and the Municipal Court in keeping with this opinion. | [
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George Rose Smith, Justice.
In 1968 the appellant, while on parole from the penitentiary in Illinois, was arrested in Arkansas upon a charge of forgery and uttering. By agreement with the prosecuting attorney he pleaded guilty, received an eight-year sentence to run concurrently with his Illinois sentence, and was returned to Illinois for further confinement. After serving 26 months there he was released, was brought back to Arkansas, and is now confined by the Department of Corrections here. By petition for postconviction relief he contends that he has served the full time contemplated by his agreement with the prosecuting attorney and is entitled to be released. This appeal is from an order denying his petition.
The facts are not in dispute. M. Burk Dabney, the deputy prosecutor who handled the case in 1968, filed with the clerk at that time a written statement of the agreement. He also testified at the postconviction hearing in the court below. According to Dabney, the agreement was that if Campbell served in Illinois less than the minimum time required for parole eligibility, he would be returned to Arkansas to serve out a minimum sentence here. If, however, Campbell served long enough in Illinois to be eligible for release under the Arkansas eight-year sentence, with time off for good behavior, he would not have to come back to Arkansas. Campbell’s version of the agreement is to the same effect.
After the entry of the Arkansas judgment on August 8, 1968, Campbell served 26 months in Illinois and was then brought back to Arkansas. He had served an additional month here when the postconviction petition was heard in the trial court.
From the undisputed facts it appears that Campbell has served sufficient time to satisfy the terms upon which he agreed to plead guilty. Under § 28 of Act 50 of the First Extraordinary Session of 1968, which was in force when Campbell was sentenced, he was eligible for parole at any time unless a minimum time to be served, of not more than one third of the sentence, was imposed. No such minimum was imposed in the August, 1968, judgment. Furthermore, § 14 of Act 50 also allowed statutory good time of eight days for each month served for the first five years of any term. Dabney so understood the statute, for he testified below: “Normally, we feel a defendant is entitled to parole after he has served a third of his time, and of course we have some time off for good behavior.” Act 50, supra, has since been repealed, but the present statute expressly recognizes its controlling effect with respect to sentences imposed while it was in force. Ark. Stat. Ann. § 43-2807 (c) (2) (Supp. 1971).
Campbell served 26 months in Illinois. He is also entitled to a credit for statutory good time at the rate of eight days for each of those months, which comes to about 6.8 additional months. His total time for parole eligibility was therefore 32.8 months when he was released from confinement in Illinois. Since one third of an eight-year sentence is only 32 months, Campbell served a sufficient time in Illinois to meet the conditions upon which he pleaded guilty. The rest of his sentence should accordingly be suspended, entitling him to be released by the Department of Corrections.
The judgment is reversed and the cause remanded for further proceedings, with an immediate mandate to be issued.
Fogleman, J., not participating. | [
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George Rose Smith, Justice.
This is a workmen’s compensation case. The appellee, while she was mopping a floor in the course of her employment at the Meadow-lake Nursing Home, fell and seriously injured her hip. As a result of the accident the rounded upper end of the claimant’s left femur was surgically removed and replaced with a prosthetic knob. When the case was heard by the referee the claimant was not working and testified that she was unable to work. The Commission made a finding of total disability and allowed compensation upon that basis. This appeal is from a circuit court judgment affirming the Commission’s award.
We find no merit in the appellants’ contention that there is no substantial evidence to support the Commission’s finding of total disability. The claimant is a 64-year-old woman with an eighth-grade education. She is not trained for any work except manual labor. Since the operation she must use crutches or a walker or a cane to move about. She cannot engage in the arduous activities that were incident to her work before the accident. The claimant’s own testimony is corroborated by other witnesses and by her doctor. Without detailing the proof at length, we think it enough to say that the Commission’s finding of total disability is amply supported by the record.
The appellants’ main contention for reversal is based upon the testimony of Dr. Grimes, the claimant’s physician, who evaluated her medical disability as a 40% impairment of the left leg as a whole. There is no medical testimony indicating any greater impairment. In Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W. 2d 573 (1972), we held that the Commission, in fixing a partial disability resulting from an injury scheduled in Ark. Stat. Ann. § 81-1313 (c) (Repl. 1960), cannot consider a wage-earning loss in addition to the physical functional loss. Upon the basis of that decision the appellants argue that the Commission erred in allowing anything more than the scheduled compensation for a 40% functional impairment of one leg.
That contention misconceives the basis for our holding in the Anchor Construction Company case. There we were considering only a partial disability under Subsection (c) of Section 81-1313, supra. That subsection provides fixed compensation which covers the functional loss and the wage-earning loss. But Subsection (a) provides a different rule with respect to total disability, which is to be determined “in accordance with the facts.” We held in McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W. 2d 502 (1966), that a scheduled injury may give rise to an award of compensation for total disability under Subsection (a). McNeely was not overruled by Anchor Construction, because the wording of Subsection (a) is more liberal than that of Subsection (c). The McNeely case is identical in principle with the case at bar and fully sustains the decision of the Commission.
Affirmed. | [
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George Rose Smith, Justice.
P. B. Porterfield, aged 90, died in July, 1971, survived by his widow, five sons, and a daughter. In this litigation two of the sons, the appellants, claim ownership of two certificates of deposit that were in their father’s possession at the time of his death. The probate court held the certificates to be part of the estate, there having been no completed gift to the appellants. We agree with the probate court.
On April 24, 1968, the elder Porterfield, then 87, went to his bank in Gurdon and purchased for cash the first of the two certificates, the pertinent language of which is as follows:
Savings Certificate of Deposit
No. 0107 Clark County Bank $12,500,000
Gurdon, Ark. April 24th, 1968.
P. B. Porterfield has deposited in this bank Twelve Thousand Five Hundred & no/100 Dollars, $12,500.00, payable to the order of Jesse Porterfield or Dildy Porterfield, Payee(s), in current funds on the return of this certificate properly endorsed 12 months after date, with interest at the rate of 5% per annum. . .
Automatically Renewable. Checks for interest will be mailed each 12 months.
No interest after three years from date. Non-negotiable.
/s/ Clayton Franklin
Authorized signature.
Not Subject to Check.
Three years later Porterfield purchased the second certificate, on a similar printed form, in the amount of $1,445.01, payable to Jesse Porterfield and Dildy Porter-field. Mr. Porterfield kept the certificates in a box in his home until his death. There is no contention that either certificate was delivered to the sons during their father’s lifetime.
The point is not altogether clear, but apparently the two sons knew nothing about the certificates until after their father’s death. In 1968, soon after the first certificate was acquired, Porterfield took the two sons to the bank, where they signed a signature card; but according to Clayton Franklin, the president of the bank, that transaction related only to Mr. Porterfield’s checking account, which contained about $800 at his death. Mr. Franklin also testified that during Mr. Porterfield’s lifetime the bank would not have permitted any of the three men to cash the certificates without all three signatures, but “if Mr. Porterfield died, in our way of thinking the money fell to the two remaining payees.”
The latter assumption by Franklin was incorrect, for the language necessary to create a survivorship interest in the sons did not appear in the certificates. Ark. Stat. Ann. § 67-552 (Repl. 1966); Washam v. First Nat. Bank, 248 Ark. 984, 455 S.W. 2d 96 (1970); Cook v. Bevill, 246 Ark. 805, 440 S. W. 2d 570 (1969). In fact, counsel for the appellants state candidly that there is no issue of survivorship in this case.
The question, then, is whether the proof shows completed inter vivos gifts of the two certificates. All the elements of such a gift must be shown by clear and convincing evidence. Mohr v. Hampton, 238 Ark. 393, 382 S.W. 2d 6 (1964); Bennett v. Miles, 212 Ark. 273, 205 S.W. 2d 451 (1947). In those cases we pointed out that there must be an actual delivery of the subject-matter of the gift to the donee or to some agent or trustee for him, “with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.”
Here the proof does not establish delivery, either to the two sons or to the bank as an agent to hold the funds for them. The donor's relinquishment of control must be immediate, unconditional, and beyond recall. Here Mr. Porterfield retained possession of the certificates of deposit, which by their own terms had to be returned to the bank as a condition to their payment at maturity. Furthermore, the bank would not have redeemed the certificates during Mr. Porterfield’s lifetime without his consent. Thus it appears beyond any question that the requisite unconditional relinquishment of control did not take place.
Moreover, the clear and convincing rule means that the gift must be established so definitely as to put the matter beyond any reasonable doubt. Here we think it decidedly unlikely that Mr. Porterfield intended to make an irrevocable gift of $12,500 (to mention only the first certificate) in 1968. Porterfield was not well-to-do. Apart from the $12,500 he had a small bank account, a few acres of land, and modest income under the federal Social Security laws. He was 87 years old. The sons were in their sixties, not dependent upon their father. The banker, Franklin, mentioned the fact that Mr. Porterfield, by putting his money into certificates of deposit, was able to obtain a greater rate of interest thah the bank had been paying upon his regular account. When the record is considered as a whole it cannot fairly be said that all the essential elements of gifts inter vivos have been established by clear and convincing proof.
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Conley Byrd, Justice. Appellee,
Corning Savings and Locan Association filed an application with appellant, Arkansas Savings and Loan Association Board for charter to operate a savings and loan association. Appellee’s ap plication was resisted by the Pocahontas Federal Savings and Loan. The latter, a federally chartered association had pending a federal application for a branch office at Corning. The Board found that appellee had met all the requirements for a charter except the showing required by Ark. Stat. Ann. § 67-1824 (3) — i.e., “There is a public need for the proposed association and the volume of business in the area in which the association will conduct its business is such as to indicate a successful operation.” The trial court reversed the three to two decision of the Board. On this appeal the Board contends that the trial court erred in finding that the decision of the Board was not based on substantial evidence.
To support its position the Board primarily relies upon the cross-examination of Dr. Barton Westerlund, an economist, Sam L. Manatt, Jr., a banker, and Mr. Carl Lacy, an accountant.
Dr. Barton A. Westerlund, an economist employed by the University of Arkansas’ Industrial Research and Extension Center testified to the growth of the City of Corning and the immediate surrounding area. Not only was there a population increase in the Corning area, as compared to a total County decrease of 11.7% for the period of 1960 to 1970, but other statistics showed a substantial increase in the average standard of living in the area. Electrical consumption was up 43%; agricultural employment had dropped from 2,150 to 1,450 persons while nonagricultural employment had increased from 3,575 to 4,575 persons. The Darling Company plant then under construction would add another 400 employees. According to his estimate the annual manufacturing employment payroll would increase from $2.5 million to $4.3 million when the Darling plant got into full production. In Corning proper there were 150 mortgages per year with an average value of $978,526.00. Dr. Westerlund estimated the average would go to $1,208,000.00. On cross-examination Dr. Westerlund admitted that for Clay County as a whole there was a decline in population for the period from 1960 to 1970.
F. B. Manatt, an Executive Vice President of the Corning Bank and a former State Representative, testified that there was a shortgage of rental property in Corning. He estimated that there was an average of three speculative residential homes per month being built in Corning and an average of two per month being built under contract. The bank deposits in the Corning Bank had increased by one million each year for the last few years. With respect to the need of a savings and loan and the service being performed by the savings and loan associations at Pocahontas, Piggot and Paragould, Mr. Manatt stated:
“I’d have to say that there’s two types of loans, the loans anybody would make; and the loans that you have to have an interest in the people or know something about them to make. This first class of loans has probably been taken care of. I’m talking about people starting out without credit; they’ve both got good jobs. These are the people I don’t think are being served.”
On cross-examination Mr. F. B. Manatt testified as to referrals they had made to other savings and loan associations. He estimated that during the first year of operation appellee would make home mortgage loans in the range of one million dollars. He estimated that during the last year there were home mortgage loans in the Western District of Clay County amounting to $2.4 million.
Daniel B. Howard, a certified public accountant with saving and loan auditing experience, estimated that upon a volume of $1.1 million in loans, appellee would make a profit the first year. Based upon the economic facts that he had been presented, he testified that in his opinion he had no question about the success of appellee. On cross-examination he admitted that his first year estimate was based upon an 854% interest rate and that a 7)4% rate would make a difference.
Sam L. Manatt, Jr., Executive Vice President of Corning Bank testified that there was a definite need for a savings and loan in Corning. His bank’s time deposits had jumped about three quarters of a million dollars in the last few months. He stated that the shoe plant employed 550 people and Busier Electric around 150. Both plants had expanded about two years ago. While acknowledging that he knew of no one who had been denied a home loan for lack of money, he described the house construction in Corning as a slow growth process.
Dr. Louis M. Amis, a member of North American Research and Development Corporation concurred in Dr. Westerlund’s appraisal. He pointed out that it is unusual to expect any kind of profit from the first year operation of a savings and loan institution. He stated that it would take from one to three years to reach a break even point in such an operation. He estimated that there would be an additional demand of $1,000,000.00 for home loans in the Corning area.
Carl Lacy, a C. P. A. with E. L. Gantt & Co. took the estimated expenses of appellee as given by Daniel B. Howard and after reducing that interest rate from 8Vz% to 7l/z% and adjusting other items of expense arrived at an estimated losss of $6,000.00 for appellee’s first year operation. In addition he estimated that a branch office could be operated moie economically and more efficiently than a brand new association. On cross-examination, Mr. Lacy stated that his projected loss of $6,000.00 for the first year was not vitally significant regarding first year operation.
Mr. Joe Martin, President and Manager of Pocahontas Federal Savings and Loan testified that they had a branch office at Walnut Ridge which was very successful. His bank had $897,831.00 of deposits in 197.1, from the Western District of Clay County. During the same time his association loaned $1,940,394.00 in the same area. On cross-examination he stated that one reason his association wanted a branch office at Corning was that the business is good. The other reason was to better service the area. In his opinion the Corning trading area was as good as the Walnut Ridge trading area. He described diem as similar.
Vernon King, the Vice President and Secretary and acting general counsel of Pocahontas Federal Savings and Loan, testified his association made home loans in the Western District of Clay County for the year of 1968, in the amount of $725,000; for 1969 in the amount of $940,000, and for 1970 in the amount of $1,326,000. He estimated his association’s proposed branch could made an additional $1,000,000 of outstanding loans at the end of three years operation. On cross-examination, he stated that in his opinion the community of Corning was a growing community very similar to Pocahontas and Walnut Ridge. According to him the whole area was going from a completely agricultural to a little more balanced economy. He also stated that he could not recall a foreclosure in the Corning area and that his association had never had a loss in principal and interest.
F. B. Manatt, upon rehearing, testified that Coming’s city budget had grown from $57,000 in 1963 to $140,000 plus in 1971. In 1955 there were 499 sewer and water connections and that in 1970 there were 1050. The gross income of the post office had grown from $9,160.40 in 1959 to $24,228.27 in 1971. The number of telephones had increased from 906 in 1960 to 1629 in 1971. The Corning Bank’s demand deposits had grown from $3.3 million in 1960 to 5.8 million in 1970. During the same period, time deposits had grown from $705,000 to $3.3 million.
E. W. Cochran, Mayor of Corning, pointed out that there were five supermarkets in Corning.
Bill Block, President of First Federal Savings and Loan of Paragould, testified as follows:
“As far as the economic success is concerned, I think perhaps I may be better able to answer that question than some of you because I have worked in and been a part of a very small savings and loan association. I want to give you some facts and figures in just a minute, but this leads me to believe it can be a success.
“I wouldn’t be so candid as to try to influence you gentlemen that this is going to be a huge financial success over night. It’s going to become a multimillion dollar association. I do not believe that. I believe they are going to have their problems just like the rest of us have had ours. I think they have their heads above water. It’s a proven fact they have the support of their community, and I believe they can be successful.
“I would like to point out some figures to you that I took from our annual report of 1962. This was the December, 1962, report of the First Federal Savings and Loan of Paragould. We had at the time a total of 264 mortgages for $1,285,000.00 and that’s all. We had depositors and our total deposits numbered 382. I was a little embarrassed to find out they are going to have almost that much at their opening. Our total deposits were $1,591,000.00. I give you those figures only to show you the nets that I think are the important ones.
“That year our gross operating income was $89,000.00 and our expenses were — and I have rounded these figures, gentlemen, so they will be easier — approximately $11,000.00. Our federal income tax was a thousand. We paid interest to our depositors which at that time was called dividends of $61,000.00. But we transferred to our reserves an undivided profit of $16,000.00. Now $16,000.00 for a total association of a million and a half to be transferred into reserves and so forth is not bad. We are still small, but we’re growing.
“I’d hate to go back to those days, but they are just beginning. They haven’t been there and they don’t know, but they can make it and I know they can because I’ve been there. Our association has been there.
"Many of the witnesses that have been testifying in favor of it have talked about, in effect, the population explosion. What are we, a country of 300 million now and there’s supposed to be another hundred million people by 1985 or something like this? People don’t want to live in the cities now. I’m not talking about the cities of Arkansas; I’m talking about Detroit and Philadelphia. Civil unrest and these type of things. They are moving. This is why Corning is able to get factories in here; why L. A. Darling has branched out and why the other one Mr. Manatt referred is possibly coming to Corning. They want a clean and decent «town to raise their children in, and I don’t blame them. I’m tickled to death to live in the one that I live in.”
Appellant here takes the view that the economy of the Corning area is expanding at a much slower rate than the economy of Arkansas generally and that the area has a high number of lower income persons, who may not have sufficient down payment for a new home or the requisite credit rating necessary to qualify for permanent financing. Based upon the foregoing premise, appellant expresses the opinion that a new association cannot cope with these problems any better, or perhaps not as well, as the present savings and loan associations in the area.
We cannot find any substantial evidence to support appellant’s position or findings. As we view the record it stands as uncontroverted; that the economy was changing from a completely agricultural to a little more balanced economy similar to Pocahontas and Walnut Ridge; that the Darling Company plant was moving into the area with a potential employment of 4Ó0 persons; and that the savings and loan associations with experience in the area wanted a local branch office to serve the neéds of the area.
The only other testimony was that of Carl Lacy to the effect that appellee would not necessarily operate at a profit the first year. When his testimony on cross-examination — to the effect that the first year loss was not vitally significant — is considered along with the undisputed testimony that it takes from one to three years to realize a profitable operation and that of Bill Block as to the profits his organization had made under similar circumstances, we cannot say that there was substantial evidence to show that the volume was insufficient to support a successful operation. To the contrary the evidence was all to the effect that the volume was sufficient to support a successful operation.
Furthermore, it has been suggested that the Board’s decision could be sustained on the basis that a branch office could be more economically operated than a brand new association. That is not a statutory ground for denying a charter.
Affirmed.
Holt, J., not participating.
Harris, C. J., and Fogleman, J., dissent. | [
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Frank Holt, Justice.
A jury convicted appellant of first degree murder and assessed his punishment at death by electrocution. On appeal the only contention is that the judgment on this verdict constitutes cruel and unusual punishment as forbidden by the United States Constitution and, consequently, his sentence must be reduced to life imprisonment. This contention is valid. Furman v. Georgia, 408 U.S. 238 (1972), Graham v. State, 253 Ark. 462, 486 S.W. 2d 675 (1972), and O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618.
The cause is remanded to the trial court for sentencing to life imprisonment which is the next highest available remedy. Ark. Stat. Ann. § 43-2308 (Repl. 1964).
Affirmed as modified and remanded. | [
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Carleton Harris, Chief Justice.
This is a Rule I case. Appellant, Delbert Treat, was convicted by a jury of the crime of assault with intent to rape on September 24, 1969, and sentenced to fifteen years imprisonment in the Arkansas Department of Correction. Following the jury verdict, appellant entered a plea of guilty to the crime of kidnapping and was sentenced to fifteen years imprisonment, the sentences to run concurrently. On January 17, 1972, appellant sought post-conviction relief and the court set the matter and conducted a hearing. At the conclusion of the evidence, the court denied relief, and from the judgment so entered, appellant brings this appeal. For reversal it is urged that there was a wide variance in the testimony of the prosecuting witness at the original trial and the post-conviction hearing, and a new trial should have been ordered on all issues involved. Further, the court committed error in refusing to let the defendant develop the testimony as to prior chastity of the prosecuting witness on the date in question, and finally, that the plea of guilty to the crime of kidnapping should have been set aside by the court because at the original trial (for rape) the prosecuting witness testified that appellant kept her covered with a gun at all times, and at the post-conviction hearing she testified that this was not true.
Kathy Johns, before marriage, Kathy Rosenberg, testified that she was twelve or thirteen years old at the time of the alleged rape. She said that her testimony at the original trial was not entirely correct, and was given because her mother told her to do so; “Well, she told me to tell what she told me to or else I would be sorry.” The testimony of Kathy at the original trial was not made a part of the transcript and accordingly we do not know the exact differences in her testimony at that trial and her testimony at the Rule I hearing. But it appears that the principal difference was that she originally testified that Treat kept a pistol on her at all times, while in the present hearing, she testified that he only held a gun or her for a short period after she first entered the car. According to the evidence, Treat had picked up Kathy and her older sister (age fifteen) as they were walking along the road and offered them a ride. They sat in the back seat and Treat pulled the pistol and ordered them to get in the front. After driving further, her sister got out of the car but she stayed, being afraid to leave. Kathy testified that she asked him to please put away the gun and he complied. A full discussion of the evidence is unnecessary since the testimony given in the Rule I hearing was sufficient to sustain the conviction. Kathy testified that she had intercourse with Treat twice, and that he did threaten her with the pistol soon after they first entered the automobile. Treat’s testimony is rather indefinite. At one point he stated that he was drinking heavily, and he did not know whether he had sexual relationships with the prosecuting witness, but he subsequently stated that he did have intercourse with her. He admitted drawing the pistol and later telling Kathy to take off her clothes, though he apparently did not have the pistol in his hand at that time. It appears to be the contention of Treat that Kathy consented to the act or acts of intercourse. The strongest evidence along this line came from Kathy’s testimony during the post-conviction hearing. From the record:
“Q. Now, did he force you to remove your clothing, or did you remove them voluntarily or on his request?
A. A little of both.
Q. How do you mean?
A. Well, he was pulling at my bathing suit strap and I was pulling it up but I finally gave up.
Q. Was he threatening you in any way?
A. He said a few times when my sister was there that he would kill us if we tried to jump.
Q. Why didn’t you get out of the car when your sister got out?
A. I was scared. I just didn’t know what to do, so I sat there.”
The evidence also indicated that Kathy did not put up much resistance to Treat. However, aside from the fact that she was a very young girl who normally would not be expected to resist in the manner of an adult, Treat, according, not only to Kathy’s testimony, but to his own, was guilty of the offense of which he was convicted. Ark. Stat. Ann. §41-3401 (Supp. 1971) provides three degrees of rape, first degree, second degree, and third degree. The statute declares one guilty of rape in the third degree when he engages in sexual intercourse with a female less than sixteen years of age and it provides that one is guilty of rape in the second degree when he engages in sexual intercourse with a female less than fourteen years of age (and the offense is committed whether or not the female consents). The punishment for second degree rape is three to twenty-one years imprisonment. Accordingly, the evidence established clearly that he was at least, guilty of an attempt to commit this offense. The penalty for assault with intent to rape is three to twenty-one years imprisonment.
In addition, we have held that recantation by a witness for the state of a portion of his or her testimony does not entitle the defendant to a new trial where such change does not render a different verdict probable, or unless the trial court is satisfied that the recanting testimony is true; further, the granting or denying of a new trial on the basis of newly discovered evidence is largely in the discretion of the trial court and unless the discretion is manifestly abused, the trial court’s action will be upheld, Clayton v. State, 186 Ark. 713, 55 S. W. 2d 88. See also Cooper v. State, 246 Ark. 368, 438 S. W. 2d 681.
It is urged that the court erred in refusing to permit appellant to cross-examine Kathy as to her prior chastity, or lack of it. Appellant argues that sperm was found inside the prosecuting witness, and that since the jury only found Treat guilty of assault with intent to rape, this was an indication that she had had intercourse with some other person just prior to the events herein set out. We do not agree that error was committed. In the first place, there is evidence, as previously set out, of a completed sexual act between the parties. In the next place, Criminal Procedural Rule I was never devised to be used as a substitute for appeal, and this allegation (which incidentally raises no question of violation of a constitutional right), if thought to contain merit, could have been set forth by appeal from the original conviction. In addition, Kathy was placed on the stand in the post-conviction hearing by appellant, and certainly was not a hostile witness.
Finally, it is contended that the court erred in not setting aside the plea of guilty to the charge of kidnapping, it being argued that the negotiated plea of guilty to this offense was brought about by the untrue testimony of the prosecuting witness which had been responsible for his conviction of assault with intent to rape; in other words, if he had not been found guilty by the jury, he would not have entered the plea of guilty. We find no merit in this contention. The record reflects that no complaint was made by appellant concerning his representation and that the attorney who originally represented him explained thoroughly the effect of the plea of guilty to the charge; further, that the attorney, who is incidentally a capable and experienced attorney, also discussed the plea with Treat’s family. The fact that the pistol was not held on Kathy the entire time does not preclude appellant’s guilt on the charge of kidnapping. Admittedly, the pistol was drawn on this young girl who testified that she did not get out of the automobile because she was afraid. We agree with the trial court that the acts mentioned constituted the offense, and though it has no bearing on the legal question involved, it is noted that it was ordered that the sentence given under the plea of guilty was to run concurrently with the sentence rendered in accordance with the jury verdict.
We find no merit in any of the contentions raised.
Affirmed.
In the post-conviction petition, Treat alleged some constitutional grounds for relief, but those are not included in the points for reversal; for instance, he asserted that he was beaten and threatened if he did not enter a plea of guilty; and that he was made to answer questions without counsel; at the post-conviction hearing however, he stated that he was not beaten, and that this assertion was placed in the petition by a fellow prisoner who prepared it, stating to him (Treat) "that would get me back to court’’.
“Q. Did he keep the gun out?
A. Yes.
Q. Did he hold it on you?
A. Yes.
Q. As he drove down the road?
A. Yes.
Q. When did your sister get out and why?
A. We was going to a friend’s house to go swimming and he let her out at the friend’s house.
Q. Did he still have the gun out then?
A. Yes.
Q. Did you want to get out?
A. Yes.
Q. Why didn’t you get out?
A. I was too scared to move.
Q. Why?
A. Because I am scared to death of guns.”
Ark. Stat. Ann. §41-607 (Repl. 1964). | [
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Conley Byrd, Justice.
At a time when appellee Archie Stringfellow could only have been charged with assault with intent to kill, Ark. Stat. Ann. § 41-606 (Repl. 1964), he made a voluntary confession concerning the assault to kill. After the victim died and after the giving of the confession, he was charged with first degree murder pursuant to Ark. Stat. Ann. § 41-2205 (Repl. 1964). The trial court ruled the confession inadmissible because Stringfellow had not been warned of the first degree murder charge. The jury found Stringfellow guilty of involuntary manslaughter and assessed his fine at $100.00. The State has appealed pursuant to Ark. Stat. Ann. §-43-2720 (Repl. 1964).
We agree with the State that the trial court erroneously held the confession inadmissible. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 L. ed. 2d 694, 10 A.L.R. 3d 974 (1968), which deals only with the criterion for determining the voluntariness of a confession, contains nothing that would make this confession inadmissible.
Because of the double jeopardy provision of our constitution, we cannot reverse and remand for a new trial, but for the orderly administration of justice we do declare that error was committed. | [
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George Rose Smith, Justice.
In appealing from convictions for burglary, assault with intent to kill, and assault with intent to rape, the appellant contends only that the trial court’s instruction defining reasonable doubt was erroneous. In an opinion delivered several months after the case at bar was tried we held the particular instruction to be bad. Laird v. State, 251 Ark. 1074, 476 S.W. 2d 811 (1972).
We cannot consider the appellant’s argument, for in the court.below there was no objection to the instruction. Price v. City of Trumann, 213 Ark. 50, 209 S.W. 2d 284 (1948). Although Act 333 of 1971 made it unnecessary for a party to save exceptions in criminal cases, it is still required that an objection be made or that the party make known to the trial court the action which he desires the court to take. Ark. Stat. Ann. § 43-2725.1 (Supp. 1971). That statute adopted the rule already prevailing in civil cases. Ark. Stat. Ann. § 27-1762 (Repl. 1962); Turkey Express v. Skelton Motor Co., 246 Ark. 739, 439 S.W. 2d 923 (1969). Hence the absence of an objection precludes the appellant from raising the point for the first time on appeal.
Affirmed. | [
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Conley Byrd, Justice.
The sole issue on this appeal is whether petitioner Walter J. Frank, Jr., is subject to the personal jurisdiction of the Sevier County Circuit Court under the provisions of the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. § 27-2501 et seq. (Supp. 1971). The matter is here on a petition for prohibition to Circuit Judge Bobby Steel who overruled petitioner’s objection to the jurisdiction.
The issue arises out of an action by C. Henry Platt filed against International Distributing Company, a Louisiana Corporation, Charles Ryan and petitioner. The allegations are that defendants through their agents knowingly misrepresented their products to Platt and that as a result thereof, he has incurred actual damages in the amount of $6,033.45, and that in addition to the recovery thereof, he is entitled to punitive damages in the amount of $3,900.00.
At the hearing on the motion to quash, it developed that Platt as a result of negotiations with Mr. Glenn Frandsen, an agent of International Distributing Company on December 16, 1969, signed at his home in Arkansas a proposal to purchase some goods to be shipped from International. This contract assigning an exclusive sales area to Platt was accepted by International at its home office in Monroe, Louisiana on December 19, 1969, over the signature of its president, the petitioner Walter J. Frank, Jr. Mr. Platt admitted that he had never talked to petitioner in person in the State of Arkansas and that he had never seen petitioner in the State of Arkansas. The parties stipulated that International Distributing Company is a corporation validly existing under the laws of the State of Louisiana, but not authorized to do business in Arkansas.
To sustain the asserted personal jurisdiction over petitioner, respondent relies upon Wichman v. Hughes, 248 Ark. 121, 450 S.W. 2d 294 (1970), and Nix v. Dunavant, 249 Ark. 641, 460 S.W. 2d 762 (1970). In those cases we had involved the question of personal jurisdiction over a party to a contract negotiated in Arkansas through an agent. In upholding personal jurisdiction in those cases and also in Pennsalt Chem. v. Crown Cork and Seal, 244 Ark. 638, 426 S.W. 2d 417 (1967), we pointed out that before a state can exercise such “long- arm” jurisdiction, it is essential that there be a showing that the defendant purposely availed himself of the privilege of conducting activities within the forum state. While under the facts, it would appear that International purposely availed itself of the privilege of conducting activities in this State sufficient to warrant the acquisition of jurisdiction over it, we do not find any facts that would warrant the acquisition of personal jurisdiction over petitioner who only acted in his representative capacity as president of International in accepting the contract. Respondent has cited no authority upholding extra-territorial jurisdiction over a corporate officer under these circumstances. Neither has our research revealed any such authority.
Respondent also suggests that petitioner is subject to service of process by virtue of Ark. Stat. Ann. § 64-1216 (Supp. 1971), which makes an officer of an unqualified foreign corporation personally liable on such corporate contracts unlawfully entered into in this State. Here again the facts do not support respondent because they show that whatever petitioner did, he did in the State of Louisiana. Thus the statute is not applicable to him.
Writ granted. | [
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Conley Byrd, Justice.
This action arises out of an ante-nuptial agreement between Dessie Hamilton and Leo nard Hamilton before their marriage in 1947. Pursuant to that agreement Leonard conveyed to Dessie a lot on Lake Hamilton which was erroneously described as Lot 9 of Block E, Point Lookout Subdivision. Dessie died in 1957 without issue and by her will devised Leonard a life estate in the Lake Hamilton lot with the remainder to her sister Eula Armstrong Smith. While Leonard was in possession of the lot, as life tenant, he discovered that the “Lot 9” description was erroneous. In January, 1969, he conveyed the Lot by its proper description “Lot 7” to his son and daughter-in-law, William and Delores Bolton. After Leonard’s death and the discovery of the 1969 conveyance, Eula Armstrong Smith brought this action against William and Delores Bolton and Leonard’s estate to have the 1969 conveyance set aside or in the alternative for damages. The Chancellor found that William and Delores were bona fide purchasers for value and because of the recording statute took superior title. However, he assessed the damages on the basis of the present market value of the property plus reasonable attorney’s fees. Leonard’s estate has appealed contending that under our decisions, such as O’Bar v. Hight, 169 Ark. 1008, 277 S.W. 533 (1925), the only damages recoverable for a breach of warranty is the consideration paid. We agree with the Chancellor.
The Chancellor in ruling against Leonard’s estate relied upon an exception to the rule set out in O’Bar v. Hight, supra. The exception as stated in Madden v. Caldwell Land Co., 16 Idaho 59, 100 P. 358, see also 20 Am. Jur. 2d p. 692, is to the effect that a vendor, after conveying good title, who subsequently conveys to another, who takes superior title by first recording his deed, stands in the same position of a vendor who breaches his contract and refuses to convey. Another similar exception to the rule stated by appellant is where the vendor has practiced a fraud. See Backus v. McCoy, 3 Ohio 211 (1827), Sellards v. Adams, 190 Ky. 723, 228 S.W. 424 (1921), and 20 Am. Jur. 2d Covenants, Conditions, etc. § 142. Under either exception, the Chancellor correctly assessed the damages at the market value.
Eula has cross-appealed from the Chancellor’s finding that William and Delores were bona fide purchasers for value. On the record, as abstracted, we cannot say that the Chancellor’s finding is contrary to a preponderance of the evidence.
Affirmed with all costs to be assessed against Leonard’s estate. | [
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Lyle Brown, Justice.
This case originated from an intersection collision between Worlick Howard, appellant, and a fire truck owned by the city of Paragould and insured by appellee, Tri-State Insurance Company. The sole point on appeal is that the trial court erred in giving AMI (Civil) 614 (sudden emergency).
The testimony as to the occurrence was very brief and was given by appellant and the truck driver. Appellant testified that he was proceeding on Highland Street; that he entered North Third Street; and that the stop signs were in his favor. “I never saw the fire truck before the accident. I did not know what hit me. The next I knew I was in the hospital.” The truck driver testified that he was answering a fire call and had his regulation lights and siren turned on. Of the impact he said: “I was not going over 25 miles per hour when the accident happened ... I looked to the right. I didn’t see anything and looked left and when I looked back I seen him and we hit just like that [instantaneously]”
We find not one iota of testimony of either driver finding himself in ah emergency situation and taking action accordingly. The giving of the instruction was therefore error. Smith v. Alexander, 245 Ark. 567, 433 S.W. 2d 157 (1968). An erroneous instruction which is likely to mislead the jury is prejudicial. Johnston v. Pennington, 105 Ark. 278, 150 S.W. 863 (1912). In the case at bar the jury was by other instructions advised as to the emergency status of a fire truck. The jury therefore may well have believed that the truck driver, under AMI 614, enjoyed some special privilege.
Reversed and remanded. | [
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Lyle Brown, Justice.
This felony-murder case has been before us on two previous occasions, both times resulting in reversals. Mosby and Williamson v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969); Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836 (1970). The case was tried another time but resulted in a mistrial. Mosby now appeals from a conviction at the fourth trial and advances eight points for reversal.
Robert E. Lovelace, a taxicab driver in Little Rock, disappeared on the night of June 3, 1968. A week later the cab and his body were found in Grant County. It was the theory of the State that appellant participated in the robbery of Lovelace in which the latter was killed. Additional facts may be gleaned from the cited opinions.
Point I. Appellant was denied a transcript of the proceedings which resulted in a mistrial. The same question was before the Supreme Court in Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971). In the first place there was no showing by appellant here that the transcript was needed to prepare tus defense for a new trial. Nor was it shown that the reporter’s notes of the mistrial could not have been read back if and when they were needed. Our position on this point is in harmony with Britt. Additionally it should be pointed out that appellant had access to the two previous trial transcripts.
Point II. The trial jury did not represent a cross-section of the community. On motion of appellant the prospective jurors chosen for the jury wheel were quashed, whereupon the trial court proceeded in accordance with Ark. Stat. Ann. § 39-214 (Supp. 1971). Three commissioners were appointed, one black and two whites, and they selected a new panel of sixty names. The testimony shedding light on this point consisted of the evidence given by the jury commissioners and the voir dire examination of thirty-one members of the jury panel. Appellant infers that three jury commissioners are not competent to choose a jury panel representing a cross-section of the community. We do not agree with that assertion. From the testimony of the commissioners we are impressed by their apparent acquaintance with citizens in many walks of life. In fact the testimony of the thirty-one members of the panel who were questioned on voir dire reflects broad strata of economic levels and occupations. The black member of the jury commission said he named approximately fifteen persons to the panel. Four blacks were among the thirty-one jurors questioned before a jury of twelve was obtained. We find no information concerning the total number of registered black persons in Grant County. There is nothing in the record concerning the ages, occupations, and stations in life of those twenty-nine members of the panel whose names were not drawn. The commissioners were not certain whether any eighteen-year-old electors were chosen but they did use the new voter registration list. We should also point out that Grant County is one of the most sparsely populated in the State. The burden was on appellant to show failure to draft a panel representing a cross-section of the county and he did not meet that burden. Avery v. Georgia, 345 U.S. 559 (1953). See Point er v. State, 248 Ark. 710, 454 S.W. 2d 91 (1970).
Point III. Four murder trials constitutes cruel and unusual punishment. We are cited no authorities for that proposition and we know of none.
Point IV. The felony-murder rule should be changed. Appellant is referring to that provision in the statute which makes murder perpetrated while in the commission of certain other felonies, murder in the first degree. Ark. Stat. Ann. § 41-2205. That statute has been a part of our law since 1838 and we have no intention of overruling it.
Point V. The confession introduced was not voluntarily given nor was it a correct statement of what appellant said. The allegation is contrary to the testimony of officer Tudor. The officer testified that he fully advised appellant of his rights. In fact appellant testified he told officer Tudor that appellant knew his rights. Appellant testified that no force was used on him. Officer Tudor said he made extensivfe notes of appellant’s statements and reduced them to writing and that the writing truly reflected appellant’s voluntary narration.
Point VI. The State’s witness indicated that a co-defendant confessed to the crime, stating that appellant committed the murder. We do not so interpret the testimony cited to support the point. This question was propounded to officer Tudor by appellant’s counsel on cross-examination and the following answer given:
Q. Isn’t it true this is the statement you got from Mr. Williamson and you pieced it together to place it against Mr. Mosby.
A. No, sir. Their accounts are not the same and I listened to Mr. Mosby’s statement and I recorded my impression of it and that is what I have given you today.
Point VII. Exhibits cannot be introduced based on cross-examination of a witness. The sheriff of Grant County stated on cross-examination that he found a microphone in a tree. The State then took the witness on re-direct and introduced the microphone. We simply fail to perceive any error.
Point VIII. A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied by other proof that such an offense was committed. We agree with that statement of law, it being incorporated in our statutes. Ark. Stat. Ann. § 43-2115 (Repl. 1964). We think the evidence in this case abundantly meets that test. Moore v. State, 227 Ark. 544, 299 S.W. 2d 838 (1957). Lovelace was missing from home for a week. His body was found in a desolate place. His car was commandeered. A search of the premises produced the victim’s empty wallet. A piece of the victim’s jump suit had been cut from his body and the cloth contained human blood stains. The microphone on the two-way radio had been cut and removed. One of Lovelace’s hands had been severed from the body. An identification card was found and his wedding ring was still on the finger bone. As in Moore there was ample evidence that Lovelace had been robbed and had not died a natural death.
Affirmed.
Byrd, J., not participating | [
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J. Fred Jones, Justice.
Tommy Lee Wilburn was convicted of robbery by a jury in the Pulaski County Circuit Court and was sentenced to prison for a term of 12 years as a third offender under Ark. Stat. Ann. § 43-2328 (Supp. 1971), and under the procedure as outlined in Ark. Stat. Ann. § 43-2330.1 (Supp. 1971). The pertinent portions of these two sections as they relate to the case at bar, appear as follows:
“Any person convicted of an offense, which is punishable by imprisonment in the penitentiary, who shall subsequently be convicted of another such offense, shall be punished as follows:
(1) If the second offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one (1) year more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for this offense, unless the maximum sentence is less than the minimum sentence plus one (1) year, in which case the longer term shall govern.
(2) If the third offense is such that, upon a first conviction, the offender could be punished by imprisonment for a term less than his natural life, then the person shall be sentenced to imprisonment for a determinate term not less than three (3) years more than the minimum sentence provided by law for a first conviction of the offense for which the defendant is being tried, and not more than the maximum sentence provided by law for the offense, unless the maximum sentence is less than the minimum sentence plus three (3) years, in which case the longer term shall govern. * * *
The following trial procedure shall be adhered to in cases involving habitual criminals:
(1) The jury shall first hear all of the evidence pertaining to the current charge against the defendant and shall retire to reach its verdict, as to this charge, based only upon such evidence; provided, however, that nothing herein shall prohibit cross-examination of a defendant as to previous convictions when the defendant takes the stand in his own defense.
(2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant’s prior conviction(s). Provided, that the defendant shall have the right to deny the existence of any prior conviction(s), and to offer evidence in support thereof.
(3) The jury shall again retire, and if it is found that the prior conviction(s) exists, or if the defendant admits such previous conviction(s), then the prior conviction(s) shall be considered in fixing the punishment for the current offense for which the defendant has been convicted in accordance with Section 1 [§ 43-2328] hereof.”
On his appeal to this court Wilburn has designated the point on which he relies for reversal as follows:
“The court erred in allowing the state to introduce and read into evidence a certified record of a prior conviction, which failed to show either that appellant was represented by counsel or that he had waived counsel.”
We conclude that Wilburn is correct in his contention on this point.
As above indicated, Wilburn was being tried for the crime of robbery which, upon conviction, carries a statutory penalty of imprisonment in the penitentiary for not less than three nor more than 21 years. Ark. Stat. Ann. § 41-3602 (Repl. 1964). The record in this case reveals that after the jury had found Wilburn guilty of robbery, the jury then heard evidence of the defendant’s prior convictions as provided in § 43-2330.1, supra, and as charged in the information filed against him. The state offered proof of two prior felony convictions, one of which was not questioned at the trial or questioned on this appeal.
As to the evidence of conviction that was questioned at the trial and is questioned on this appeal, a certified criminal court docket entry for Phillips County was offered and accepted in evidence over the objections of Wilburn. This docket entry recites as follows:
“This cause coming on to be heard, comes the State of Arkansas by its Prosecuting Attorney and the defendant in person and being informed of the nature of the charge in the information and penalty of conviction hereof for plea herein says he is guilty of burglary and robbery.
It is therefore considered, ordered and adjudged that defendant is guilty of burglary and robbery and the Court does sentence him to eighteen years on burglary and eighteen years on robbery, sentences to run consecutive.”
It will be noted that nowhere in this docket entry of judgment is it recited that Wilburn was represented by counsel or that he had waived counsel, but on the contrary the record indicates that no defense counsel was present. The docket entry does indicate that the court officials were present; that the state appeared by its prosecuting attorney and the defendant appeared in person. Wilburn’s objections to the introduction of this evidence appears as follows:
“We object to this on the grounds that there is nothing in here reflecting that the defendant, on this date, was represented by counsel, or had waived counsel. The record affirmatively states the presence of several individuals but it is completely silent as to any attorney whatsoever other than the Prosecuting Attorney. . . .”
The state’s attorney general concedes with commendable candor that his careful research of the point indicates that Wilburn’s assignment has merit under the decisions of Burgett v. Texas, 389 U.S. 109, 19 L.Ed. 2d 319, 88 S. Ct. 258; United States v. Tucker, 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589; Loper v. Beto, 405 U.S. 473, 31 L.Ed. 2d 374, 92 S.Ct. 1014; Goodwin v. Smith, 439 F. 2d 1180 (5th cir., 1971); United States v. Lufman, 457 F. 2d 165 (7th cir.,. 1972); Craig v. Beto, 458 F. 2d 1131 (5th cir., 1972); Tiffey v. State, 476 P. 2d 84 (Okla. Cr., 1970); State v. Kennedy, 483 P. 2d 548 (Ari., 1971); White v. State, 274 A. 2d 671 (Md., 1971); Donahay v. State, 255 So. 2d 598 (Ala. 1971).
The appellant does rely heavily on Burgett v. Texas, supra, and argues that his conviction should be reversed. We agree with the state, however, that Burgett is distinguishable from the case at bar in that the questioned evidence of the prior conviction in Burgett was admitted prior to determination of the defendant’s guilt by the jury on the crime for which he was being tried. We also agree with the state that the error involved does not call for a new trial in the case at bar because this court has the power to modify the judgment of a trial court, Ark. Stat. Ann. § 27-2144 (Repl. 1962), and to reduce the penalty in criminal cases to that penalty which is appropriate for the crime involved. Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, see also Clark v. State, 246 Ark. 876, 440 S. W. 2d 205.
The practical effect of § 43-2328, supra, is simply to add one year in prison to the minimum punishment for a second offense and to add three years in prison to the minimum punishment for a third offense. In the case at bar, Wilburn could have been sentenced to the state penitentiary for a determinate term of anywhere from three to 21 years for the crime of robbery upon a first conviction. He was, however, sentenced to a term of 12 years, which amounted to six years more than the minimum for a third conviction and eight years more than the minimum for a second conviction. As pointed out in the trial court’s instructions, the minimum time for which Wilburn could have been sentenced for robbery on a third felony conviction, would have been six years; but, the evidence offered as to one of the three convictions in this case was not sufficient proof of a third conviction for the purpose of increasing the minimum punishment for the crime of robbery for which Wilburn was being tried.
In Burgett, supra, the Texas State Appellate Court upheld the conviction of an accused, holding that there had been no error in reading to the jury an indictment containing a prior conviction in Tennessee since the trial court instructed the jury to disregard the prior offenses and because the petitioner had not received the enhanced punishment prescribed by the recidivist statutes. There were two versions of the Tennessee conviction, one recited that the defendant appeared “without counsel,” and the other simply recited that he appeared “in proper person.” The United States Supreme Court granted certiorari and in reversing the judgment of the state court, said:
“. . . Gideon v. Wainwright established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth, making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one. And that ruling was not limited to prospective applications. See Doughty v. Maxwell, 376 U.S. 202; Pickelsimer v. Wainwright, 375 U.S. 2. In this case the certified records of the Tennessee conviction on their face raise a presumption that petitioner was denied his right to counsel in the Tennessee proceeding, and therefore that his conviction was void. Presuming waiver of counsel from a silent record is impermissible. Carnley v. Cochran, 369 U.S. 506. To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense (see Greer v. Beto, 384 U.S. 269) is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right.....
The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to dis regard it made the constitutional error ‘harmless beyond a reasonable doubt’ within the meaning of Chapman v. California, 386 U.S. 18.”
From the record before us, we are unable to determine what effect, if any, the jury gave to the evidence pertaining to three convictions in this case. The 12 year sentence was less than the maximum for a first conviction but greater than the minimum for a third conviction. Only a second conviction was established by competent evidence and the minimum penalty upon a second conviction would have been imprisonment for a period of four years. We are of the opinion, therefore, that the state should have the option of retrying this case upon reversal for the error indicated, or accepting the minimum penalty of four years upon affirmance of the judgment as a second conviction. Consequently, the judgment will be reversed and the cause remanded for a new trial, unless the attorney general within 17 days elects to accept a modification of the punishment so as to sentence Wilburn to the minimum time of three years plus one additional year as penalty for the second offense, or a total of four years in the state penitentiary. | [
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J. Fred Jones, Justice.
This is an appeal by cross-complainant Dorothy Jeffers from a circuit court judgment striking paragraphs 3, 4, 5 and 6 from her cross-complaint against Brown Motor Company and Everett Brown, after which her cross-complaint was dismissed and judgment was entered upon the pleadings in favor of the cross-defendant appellees, Brown Motor Company and Everett Brown.
The facts appear as follows: On July 25, 1970, Mrs. Jeffers purchased an Opel station wagon from appellee Brown Motor Company. She paid $400 cash and signed a conditional sales contract agreeing to pay the additional amount of $623.61 in monthly installments. The sales contract and security agreement were assigned by Brown to Simmons First National Bank of Pine Bluff and the bank filed suit against Mrs. Jeffers in replevin upon her default in the monthly payments.
Mrs. Jeffers did not seriously defend the replevin action but she filed a cross-complaint against the Brown Motor Company and Everett Brown in which, after asserting the names and residences of the parties, she alleged in paragraphs 3, 4, 5 and 6 that she purchased a 1967 Opel automobile from the Brown Motor Company paying $400 in cash and agreeing to pay the additional sum of $623.61 in monthly installments. She admitted in her cross-complaint that she signed a Conditional Sales Contract and Security Agreement and did not read the instrument she signed because of warranties made to her by the defendant and one of his agents and employees. She alleged that she advised the defendant Brown and his agent that she desired to purchase an automobile suitable for use as a taxi. She alleged that the defendant Brown and his agent-employee warranted to her that the Opel automobile which she purchased was exactly what she wanted and needed for use as a taxi. She then alleged: “Brown said ‘there are a lot of people buying Opels for taxis. You won’t have a dime’s worth of expense on this car for five years. I have driven this car myself, and its in perfect condition.3 33 (Emphasis supplied). She alleged that she did not test drive the automobile but relied entirely on the warranty made by Brown, his salesman-agent and employees, and as a result, and because of the representations made to her, she purchased the automobile and signed the conditional sales contract and security agreement. She alleged that in driving the automobile from the Brown Motor Company to her home in Bradley County, she found that the automobile was not in perfect condition; that there was something wrong with the clutch; that the motor failed to perform as warranted and that the automobile she purchased was not suited for use as a taxi. She alleged that the actual value of the automobile when she purchased it was $350 rather than the amount she agreed to pay; that Everett Brown and the Brown Motor Company, its agents, servants and employees, knew or should have known that the said automobile was mechanically imperfect and needed extensive repairs. She alleged that the cross-defendants willfully and intentionally perpetrated a fraud upon her by the fraudulent statements they made concerning the condition of the automobile and in persuading her to sign the conditional sales contract in the purchase of the automobile. She alleged that as soon as she learned the true condition of the automobile, she attempted to return it to the Brown Motor Company but that when she asked to discuss the matter with the cross-defendant Brown, he refused to discuss it with her. She alleged punitive damages in the amount of $500 and compensatory damages in the amount of $623.61 and prayed judgment for those amounts.
Summary judgment was entered by the trial court in favor of Simmons First National Bank in the replevin action and there is no appeal from that judgment. Everett Brown and the Brown Motor Company filed answer admitting that they sold the automobile to Mrs. Jeffers for the amount alleged, but denying the other allegations in her complaint. They attached a copy of the conditional sales contract to their answer and stated:
“The third party defendants specifically deny each and every other allegation set forth in the complaint and plead the said conditional sales contract and security agreement as a complete and final bar to the allegations made therein, same having been signed by Dorothy Jeffers and containing the following affirmative allegations by her: ‘no change in or modification of this contract shall be binding unless in writing and no agreement or representation shall be binding upon holder unless expressly contained herein. Buyer acknowledges that no oral representations, warranties, or guaranteees have been made by Seller to Buyer in connection herewith.’ Also, the following: ‘The Seller hereby sells and the Buyer, hereinafter referred to as ‘Buyer’ whether one or more, hereby bargain and grant to Seller and its assigns a purchase money security interest pursuant to the terms and conditions herein set forth the following described property which Seller has examined and found to be in acceptable condition. . .’ (Emphasis Applied)
Third party defendants plead said conditional sales contract and security agreement and the statements contained therein and affirmations made by Dorothy Jeffers as a complete, total and absolute bar to the claim and cause of action set forth in the third party complaint and the third party defendants move that paragraphs 3, 4, 5 and 6 be stricken in accordance with the applicable rules of pleadings and of law and further allege that the said third party complaint should be forthwith dismissed and the third party defendants granted their costs herein.”
The trial court found that paragraphs 3, 4, 5 and 6 in the cross-complaint were based on allegations of warranties allegedly made by the cross-defendants requiring all testimony dehors the written contract which Mrs. Jeffers admitted she signed. The trial court found that the allegations upon which the paragraphs were founded were contradictory and inconsistent with the express terms of the conditional sales contract and inadmissible under our holdings in Green Chev. Co. v. Kemp, 241 Ark. 62, 406 S. W. 2d 142; Hambrick v. Peoples Mercantile & Implement Co., 228 Ark. 1021, 311 S. W. 2d 785, and Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S. W. 553. The trial court then ordered paragraphs 3, 4, 5 and 6 stricken from the cro.ss-complaint and entered judgment in favor of Everett Brown and Brown Motor Company on the pleadings as per their motion.
The appellant Jeffers contends that the trial court erred in. striking paragraphs 3, 4, 5 and 6 from the cross-complaint and in dismissing her cross-complaint. We agree with the appellant Jeffers. In the cases of Green Chev. Co. v. Kemp and Hambrick v. Peoples Mercantile & Implement Co., supra, the litigation sounded in contract rather than in tort and fraud was not involved or alleged as an inducement to entering into the contract in either case.
In Federal Truck & Motors Co. v. Tompkins, supra, the purchaser of a used truck used it in his buiness for five months and after two monthly payments had become past due, he proposed to pay the balance if allowed proper discount. His proposition was not accepted by the seller and when the purchaser refused to make further payments, suit was instituted on the notes. The affirmative defense was laid in tort but it was submitted to the jury on contract. The distinguishing feature in Tompkins was stated by this court in the following language:
“Appellee defends the judgment of the court below on the theory that he was deceived and induced, by false representations in regard to the age and condition of the truck, to make the contract. But the case was not tried or submitted on that issue. In the instructions submitting the case to the jury the court said: ‘The defendant admits the execution of the notes, the sale of the motor truck, but says that the truck was warranted or guaranteed to him to be in good condition and not to have been run to exceed eight months and to be as good as new. He says that it was not as good as new and it was not in good condition and it was run more than eight months, and that the warranty has proved to be false * * *’ Having thus stated the issue, the court told the jury to find for the appellee if the testimony supported his contention.” (Our emphasis).
The case at bar is more in point with the recent case of Union Motors, Inc. v. Phillips, 241 Ark. 857, 410 S.W. 2d 747. In that case Phillips placed an order with Union Motors for a demonstrator automobile with low mileage and in all respects as good as new. He took delivery of the automobile and subsequently filed suit for damages on breach of warranty. He alleged that Union Motors’ agents represented the automobile to be in perfect condition and runs as good as new; that after he purchased the automobile he discovered that it had been in a wreck and imperfectly repaired; that Union Motors knew at the time of the sale that the automobile had been wrecked, and that Union Motors concealed that fact from him. He alleged damages in the amount of $1,000. Union Motors in its answer admitted the sale of a demonstrator but alleged that the only warranty made was the usual manufacturer’s warranty which was delivered to the purchaser Phillips. Secondly, Union Motors alleged that Phillips acknowledged in writing that no other warranties were involved. A jury was waived and a trial before the court resulted in an award of compensatory damages to Phillips in the amount of $650. We affirmed the judgment of the trial court in Phillips by finding that the complaint sounded in tort rather than in contract. See also Ray Dodge, Inc v. Moore, 251 Ark. 1036, 479 S.W. 2d 518, where beginning at the bottom of page 1040 of the Arkansas Report we said:
“Appellant’s argument that the proof of fraud must be clear and convincing is based upon the premise that the fraud charged is contradictory of the written vehicle buyer’s order signed by appellee, citing Belew v. Griffis, 249 Ark. 589, 460 S.W. 2d 80. The order contains an acknowledgment that no warranties were made by the dealer. Appellant contends that the alleged representations as to the mileage traveled by this vehicle contradicted that instrument. In Belew, however, the alleged representation related to the total amount required to pay the deferred purchase price and was clearly contrary to the recited consideration in a deed. Clear and convincing evidence of fraud is required to cancel or reform a solemn writing, but not to establish fraud in obtaining a contract by fraudulent misrepresentation. Clay v. Brand, 236 Ark. 236, 365 S.W. 2d 256; Parker v. Johnston, 244 Ark. 355, 426 S.W. 2d 155.”
The judgment of the trial court is reversed and this cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded. | [
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Carleton Harris, Chief Justice.
The question in this case is whether the chancellor, at the conclusion of appellants’ case, properly sustained a demurrer to the evidence.
E. A. McGowan, the owner of an eighty-acre hill farm in Craighead County, died in 1933. His wife, Annie McGowan, continued to live on the property, which was the family homestead, until 1951, at which time she passed away. Roy McGowan, who, with his wife, are the appellees, was born upon, and has lived his entire life, upon this property, here in controversy. Appellants, Ruby Minton and Eva L. Simpson, married and moved away from the farm in 1924. Following their mother’s death, in 1952, appellants consulted an attorney in Jonesboro with reference to the fact that Roy held drainage district deeds under which, according to appellants, he was claiming title. No acdon, however, was taken, and Roy continued to live on, and to farm, the property. In June, 1970, all the heirs of E. A. McGowan except appellants, deeded their interest in the property to Roy, and on September 10, 1970, appellants instituted suit in the Craig-head County Chancery Court seeking partition of the lands, alleging that they were two of the seven children of E. A. McGowan and each asked that her one-seventh interest in the lands be set apart or the lands sold wherein they could derive their proportionate shares. After a demurrer had been overruled, appellees filed an answer asserting that they had acquired title to the property by adverse possession. Thereafter, appellees moved for summary judgment, but this motion was also denied, and the case proceeded to trial.
At the conclusion of appellants’ case, counsel for appellees demurred to the evidence, the court sustaining the demurrer, and accordingly entering its decree finding that appellees had acquired title by adverse possession and that appellants had no right, title or interest in the lands. From the decree so entered, appellants bring this appeal.
Since this case involves a demurrer to the evidence, it is the duty of the trial court to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence, when so considered, fails to make a prima facie case. Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. At the time the plaintiff completes his case, it is not proper for the court to weigh the facts, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Pults v. Pults, 236 Ark. 434, 367 S.W. 2d 120; Neely v. Jones, 232 Ark. 411, 337 S.W. 2d 872.
In the instant litigation, though portions of the testimony by appellants favor the position of appellees, we are still of the view that appellants offered some evidence presenting factual issues for determination. For instance, Charles P. Simpson, husband of appellant Eva L. Simpson, testified that following the death of the mother in 1951, while still at the cemetery, he asked Roy if an administrator shouldn’t be named while the heirs were there all together. He said that Roy answered that there wasn’t any hurry and he (Roy) would take care of the matter later on and wouldn’t make any charge. He testified that he next talked with Roy about getting the estate wound up in 1957, at which time he told the latter that he wanted to build a house on his wife’s part of the land for a home; that Roy responded that he did not have it in shape to divide it up, and walked away. The witness said that he next talked with Roy at the cemetery following the Ace Puckett funeral in 1962, at which time Roy said that he “hadn’t got it ready”. The witness stated that he also talked to Roy several times in 1965 when the latter came to the house to sell butter and eggs, and that Roy gave the same answer.
In 1964, Simpson testified that he told Roy that he, (Simpson) was in the market for a cow and he went to the farm with this appellee to look at a cow. According to Simpson, Roy said he wanted $200.00 for the cow.
“I said, ‘Well, that’s a little high but being you need to sell her and we need one pretty bad I believe I’ll do that’. He said, ‘Well, you’ll have to have your wife sign a deed to her part of the estate’ and I said, ‘Well, I wouldn’t give that for the cow without the $200.00’ so right then we went back to the house and that was all.”
According to Simpson, Roy did not, during any of these conversation, state that he owned or was claiming the property as his own. The witness quoted his last conversation, in April or May of 1970, with Roy when appellee came to his home to ask Eva to sign a deed, as follows:
“I might not get all of the words but he said to her ‘What do I do to get you to [deed] your part of that place?’ and she said, ‘What do I get out of it?’ and he said, ‘You ain’t going to get nothing’ and he said ‘I’ll make you’ and I said, ‘Wait, I’ll get in there now’. Í said, ‘You won’t make my wife do nothing’ and I said, ‘What do you want to give her?’ and he said, ‘I wouldn’t give her very much. It wasn’t worth — I believe he said — $350.00 when he took it over. He said, ‘It wasn’t worth much’. He said, ‘I wouldn’t give much’ and I said, ‘Well, just a little won’t get it’. He said, ‘Well, I’ll sue her. I’ll make her that way’.”
Simpson testified that after about two weeks, since Roy did not institute suit, appellants filed a complaint.
It will be noticed that, from the conversations related, Roy McGowan never contended to Simpson that he owned the property, having acquired it by adverse possession, and it will be noted that the conversations reported broke the continuity of seven years adverse possession. However, there is even stronger evidence presenting a fact question offered by Burl G. Slaven. This witness testified that he was planning on constructing a road running between the McGowan, Rogers, and Slaven land to aid public travel and he had already spoken to Rogers and an aunt seeking to obtain a thirty foot right-of-way. From the record:
“I was going to get 30 foot from each side of the line and build a road and try to get Bill Clark to maintain it for us and he said if I would get a right-of-way he would see what he could do about it. He never did commit himself either way and I went down and asked Roy — ‘Poss’, I know him as Poss better— and I asked him could we have a right-of-way 30 foot across there to put a road through there so my sister could build a house back there. She wanted a house back there and that was the reason for building the road and he said he couldn’t let me have it because it wasn’t his.”
Slaven testified that, to the best of his recollection, this had happened two or three years before the trial.
R. A. Slaven, uncle of Burl, and a cousin of Roy and appellants, testified that he had over the years visited with Roy McGowan and that the two had hunted and fished together; also that Roy had worked for him “off and on” for approximately twenty years. He said that he had talked with Roy at different times about the property and that Roy had never claimed to own the place, “about all he ever said was he paid the taxes on it.”
In Montgomery v. Wallace, 216 Ark. 525, 226 S.W. 2d 551, we said:
“. . . In order that adverse possesson may ripen into ownership, possession for seven years must be actual, open, notorious, hostile, exclusive, and it must be accompanied with an intent to hold against the true owner.”
Of course, the cited testimony disputes the acts necessary to acquire adverse possession, for, to say the least, a factual issue is presented as to whether Roy McGowan intended to hold adversely against his sisters. In addition, we have said that stronger evidence of adverse possession is required of a cotenant where a family relationship exists than is required against a stranger. Johnson v. Johnson, 250 Ark. 457, 465 S.W. 2d 309. Also, evidence of. an adverse holding must be very clear where the original entry is by permission. Dial v. Armstrong, 195 Ark. 621, 113 S.W. 2d 503.
For the reasons herein stated, we are of the view that the court erred in sustaining the demurrer to the evidence, and the decree is accordingly reversed, and the caused remanded to the Craighead County Chancery Court for further proceedings not inconsistent with this opinion.
IT IS SO ORDERED.
Byrd, J., concurs.
Ace Puckett was a brother-in-law, the husband of a sister of his wife.
According to an affidavit made by Simpson on November 1, 1971, in connection with the motion for summary judgment, this occurred in November or December of 1963, Simpson stating that the conversation took place “soon after the assassination of President Kennedy”. | [
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John A. Fogleman, Justice.
Betty Sue Gray was found guilty of second degree murder of her husband Bobby Gray, who died as the result of a single abdominal gunshot wound inflicted by her while both were at the Park Lounge in Little Rock on the evening of August 7, 1971. She seeks reversal of her conviction on four grounds. They are:
I. The trial court erred in allowing alleged oral admissions by appellant to be placed before the jury without a proper prior hearing as to their voluntariness and admissibility.
II. The trial court erred in failing to direct a verdict of not guilty to first and second degree and the evidence is insufficient to sustain the jury’s verdict of second degree murder.
III. The trial court erred in allowing State to cross-examine appellant as to convictions of misdemeanors.
IV. The trial court erred in allowing the Prosecuting Attorney to misstate the law of murder in the second degree and manslaughter.
At the outset, we consider and dispose of Point II, because it involves consideration of evidence in the case. We have carefully reviewed this evidence and find it, when viewed in the light most favorable to the state, to afford ample support to the jury’s verdict of second degree murder.
Appellant testified that she had lived with Bobby Joe Gray for about eight years, during which she had supported him and herself by prostitution, but that they had been married only about one month. She and Bobby Joe had differences about his relationship with one Ruby Graves, and she said that on the afternoon preceding his shooting he had called and told her that he was with Ruby Graves. She stated that after she had seen her car parked at an apartment house, she had gone in and had been told by a friend that her husband and Ruby Graves were in the friend’s apartment, and, following her unsuccessful attempts to gain admission, she left, went home and decided to go visit a friend. She stated that when she left home she took the pistol (described as a four-barrel derringer) with which the fatal shot was fired. After she visited the friend for about an hour and one-half, she went to the Park Lounge, arriving at about 7:15 p.m. Both Bobby Joe Gray and Ruby Graves were at the lounge when she entered.
There is a conflict in the testimony as to what took place after her arrival. Pat R. Wilson, a part owner of the lounge, testified that Gray was sitting at the back of the tavern with two men, and Ruby Graves was sitting alone on the opposite side of the room. He stated that after appellant had walked past the table where her husband was sitting she sat down on a stool at the bar, ordered a beer, and then turned to Gray and asked him why, he wasn’t sitting with his whore. Then, he said, Gray walked to the bar, and the two started cursing one another. The bartender said that appellant then pulled a pistol from her brassiere, but returned it when he directed her to dp so. Gray started to walk away, but, according to Wilson and other witnesses, he turned, grabbed her blouse, tore it open and exclaimed “I know you have a gun, Betty. I’m not afraid of it. Go ahead and shoot me.” or words of similar import. According to four witnesses who were at, or near, the bar, she then shot Gray. Wilson said that she was only an arm’s length from her husband when she fired the shot after placing the gun very close to him. The witnesses for the state said that Gray fell to the floor immediately saying “Betty, you shot me.” or “She shot me.” Wilson testified that appellant stood at her husband’s head, and stated “I know I shot you.” nudging his head with her foot. Nellie Johnson, who had been seated at the bar, said that appellant kicked Gray lightly and said “Is it worth it? I told you I’d get you.”
The bartender, who left to call the police, testified that upon his return appellant told him to take Ruby Graves out or she would shoot her. An examining pathologist at the University of Arkansas Medical Center described powder markings at the wound entrance. He described the course of the bullet as running downward through the body at an angle of 45 degrees from its point of entry on the lower part of the right side of the chest. Even though there was evidence upon which the jury might have found appellant guilty of voluntary manslaughter, the evidence was not only sufficient to support a conviction of second degree murder, but it would have supported a conviction of first degree murder.
Appellant’s third point may be quickly disposed of. In Arkansas, a witness may be cross-examined as to convictions of misdemeanors. In Hays v. State, 219 Ark. 301, 241 S.W. 2d 266, we held that a defendant in a criminal case may be cross-examined about convictions of various misdemeanors, including gambling, immorality, drinking in a public place and possessing untaxed liquor, citing a case in which inquiry as to conviction for disturbing the peace had been held proper and another where the conviction was for drunken driving. See also, Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446; Atha v. State, 217 Ark. 599, 232 S.W. 2d 452.
Appellant’s first point is based upon procedures which were not prejudicial, even if erroneous. She moved to suppress testimony of police officers as to statements made by her to them. A pretrial hearing was held on the day preceding the trial. Appellant objected to the testimony of Officer Morrow, one of the officers who went to the scene, arguing that he was unable to state that appellant’s statements were spontaneous or that they were made before she was in custody, because he was not the first officer at the scene. The officers who preceded him were not then available to testify. Appellant’s attorney stated at this hearing that it would be admitted that appellant shot the deceased. The court then held that certain statements made by appellant at the police station were voluntary and admissible. These incriminating remarks were admitted into evidence without further objection. The couft also held that statements made to Officer Morrow were voluntary, conditioned, in part, upon the testimony to be given on the next day by officers not available at the pretrial hearing relating to the time the defendant was taken into custody and the nature of the statements, i.e., whether voluntary or responsive to interrogation by the officer. Officer Morrow did not testify at the trial. No further hearing in the absence of the jury was had as to whether appellant’s statements were voluntary.
When Officer Bounds was unable to identify appellant as the woman making certain statements in his presence, the circuit judge instructed the jury to disregard the testimony. No further objection was made to this procedure, and the judge was not requested to give further admonition or to declare a mistrial. Officer Gocke then testified about statements made by appellant in his presence and identified her as the person making the statements. The only objection made to the testimony of this officer about appellant’s statements was that it was hearsay. Gocke testified that appellant approached the officers as soon as they arrived, started cursing her husband, and stated, without any questions having been asked, that she shot the “g. d. s.o.b.” because he grabbed her in spite of her telling him not to ever touch her. He also testified that appellant’s arrest followed the making of these remarks. Appellant’s attorney cross-examined this witness about his ability to identify appellant and to remember exact words of appellant’s statement, the condition of appellant’s clothing and the time. No objection to the procedure followed was ever made by her. Furthermore, appellant testified in her own behalf, without any direct contradiction of Gocke’s testimony and without any suggestion that her statements to the officers were involuntary, or the result of interrogation or that she was in custody at the time they were made.
While Ark. Stat. Ann. § 43-2105 (Supp. 1971) requires an in camera hearing on the admissibility of a confession, it also provides that the issue of fact involved in determining admissibility shall be decided by the court (on evidence heard out of the presence of the jury) when the issue is raised by the defendant. The significance of the lack of objection to a consideration of the issue of voluntariness was recognized by the Supreme Court of the United States in Pinto v. Pierce, 389 U.S. 31, 19 L. Ed. 2d 31, 88 S. Ct. 192 (1967). It is not improbable that appellant expected to gain corroboration of her theory of self-defense, or of her testimony from which the jury might have found that her actions resulted from sudden, uncontrollable passion, through statements made by her immediately after the shooting. Appellant cannot say that she suffered any unfair consequences under the circumstances. We cannot say that reversible error was committed. See Pinto v. Pearce, supra; Annot., 19 L. Ed. 2d 1313 (1968).
In support of Point IV, appellant contends that, in the closing argument, the deputy prosecuting attorney’s statements deluded the jury into a belief that it could not find that the degree of homicide was voluntary manslaughter unless the killing was unintentional. She cites the action of the jury in requesting, after some period of deliberation, a simplified explanation of the distinction between the various degrees. We find no merit in this contention. The record discloses that the deputy prosecuting attorney had distinguished second degree murder from first degree and then said that voluntary manslaughter was not an intentional crime, after he had stated that this degree did not require any of the elements he had previously mentioned. When appellant’s attorney interposed an objection, the judge stated that second degree murder includes intent and all elements of first degree murder except premeditation and deliberation. The court had given correct instructions distinguishing the degrees of homicide. When the jury, after deliberating for a time, requested a written, simplified explanation and distinction between murder in the first degree, murder in the second degree and manslaughter, the trial judge furnished the jury with all his instructions, in writing, including that on self-defense. This procedure was followed with the express approval of the attorneys for both sides. Appellant never requested an admonitory instruction or the declaration of a mistrial by the court after the statement complained of was made. Any error that there may have been in this isolated statement made during the course of the argument could hardly have misled the jury, when all the circumstances are taken into consideration. Certainly, it cannot be said, if there was error, that it was reversible error.
The judgment is affirmed.
Two of the alleged convictions about which inquiry was made were described as vagrancy. The circuit judge directed that no further inquiry be made along this line, after an objection was made because appellant had testified on direct examination that she was a professional prostitute. | [
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J. Fred Jones, Justice.
This is an appeal by Tri-State Realty Company and American Television Company, Inc. d/b/a Donrey Outdoor Advertising Company from a decree of the Washington County Chancery Court in which the chancellor sustained a demurrer filed by the City of Fayetteville to a petition for declaratory judgment filed by Tri-State and Donrey.
The facts appear as follows: Tri-State owns numerous small plots of land suitable for use in outdoor advertising in the Fayetteville and Washington County areas. Donrey owns and maintains numerous advertising billboards on plots of ground leased or rented from TriState. Donrey, in turn, rents and leases space on the billboards to the various individuals, firms and corporations having need for such outdoor billboard advertising. Donrey has a number of such outdoor advertising panels erected on plots of ground leased from Tri-State in the City of Fayetteville.
On June 29, 1970, the City of Fayetteville adopted Ordinance No. 1747 which is a comprehensive zoning ordinance containing 97 pages. The ordinance, among other things, forbids outdoor billboard advertising in certain zones and restricts the size and number of permitted panels in other zones. The ordinance establishes and changes setback requirements for outdoor advertising panels and all of the provisions of the ordinance are made effective, as to existing and future outdoor advertising, as of June 30, 1971. It appears that under prior permits granted by the city a number of the Donrey outdoor advertising panels are located in zones where they are now prohibited by the ordinance and under the terms of the ordinance must be removed. It further appears that a number of other panels are located within areas where they must be moved and rebuilt to conform to the setback provisions of the ordinance, and that in still other instances it will be necessary for Donrey to reduce the size of its advertising panels in order to comply with the provisions of the ordinance. A violation of the ordinance is made a misdemeanor under its terms, punishable by a fine of not less than $25 nor more than $1,000 with each day of violation constituting a separate offense.
On July 2, 1971, Tri-State and Donrey filed their petition in chancery court alleging that the ordinance is un constitutional in many specifically enumerated respects as it applies to them, and they prayed for a declaratory judgment to determine the constitutionality of the ordinance. On the same date a temporary injunction to restrain the enforcement of the provisions of the ordinance was granted by the chancellor upon petition of Tri-State and Donrey. On July 9, 1971, information was filed in the Fayetteville Municipal Court against Donrey charging it with the violation of the ordinance as to one of its outdoor advertising panels in Fayetteville.
The temporary injunction was dissolved on motion of the city after demurrers were sustained to the petition and its amendments. Finally Tri-State and Donrey refused to plead further and on December 14, 1971, the chancellor entered an order sustaining a demurrer to the second amendment to the petition for the reason that Tri-State and Donrey had an adequate remedy at law.
On appeal to this court Donrey and Tri-State rely on the following point for reversal:
“The plaintiffs have stated a case within the provisions of Ark. Stats. § 34-2501, et seq., properly invoking the jurisdiction of the chancery court, and the court erred in sustaining a demurrer and dismissing plaintiffs’ petition.”
The question before us on this appeal is whether the chancellor erred in sustaining the demurrer to the petition for the reason that Tri-State and Donrey had an adequate remedy at law. We are, therefore, primarily concerned with the question of whether Tri-State and Donrey did have an adequate remedy at law, and we conclude that they did-not.
The city cites several cases in support of its argument that relief in chancery is not demandable as a matter of strict right but is awarded by the chancellor in his discretion, and also for the proposition that equity will refuse relief in all cases where the remedy obtainable at common law is adequate. The city then cites cases holding in effect, that courts of equity will not interfere to prevent anticipated criminal or quasi-criminal prose cutions. The city then argues that the invalidity of an ordinance may be interposed as a complete defense to a prosecution based thereon, and contends that the case at bar is controlled by our decision in S & S News Agency v. Freeze, 247 Ark. 1078, 449 S.W. 2d 404. The appellants on the other hand rely heavily on our decision in Brown v. Cheney, 232 Ark. 119, 334 S.W. 2d 666, appeal dismissed 369 U.S. 796. 82 S. Ct. 1156, 8 L.Ed. 2d 285.
The S ¿r S News Agency case is not in point with the case at bar. In that case the owner of a newsstand in Fort Smith filed a petition in chancery to enjoin the city from attempting to enforce a municipal ordinance against the sale of obscene literature in the form of future issues of specific magazines. The facts that distinguish that case from the one at bar are clearly set out in the last paragraph of the News Agency decision as follows:
“While appellant loudly proclaims that its constitutional rights have been violated, the real gravamen of its complaint seems to be that neither the City Administrator nor the City Attorney will say whether appellant will be allowed to sell subsequent issues of the magazines involved in Gent v. Arkansas, without being arrested under the obscenity law. We know of no law, and appellant has cited us none, which would permit a blanket injunction against a municipality with respect to all subsequent issues of the magazines involved irrespective of content or subject matter.”
The relevant portions of the declaratory judgment chapter of the statutes, Ark. Stat. Ann. §§ 34-2501, et seq. (Repl. 1962), under which the petition was filed in the case at bar are as follows:
“34-2501 Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such decía rations shall have the force and effect of a final judgment or decree.
34-2502 Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instruments, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.
34-2504 The enumeration of Sections 2, 3 [§§ 34-2502, 34-2503] and 4 does not limit or restrict the exercise of the general powers conferred in Section 1 [§ 34-2501], in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
34-2505 The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.
34-2506 All orders, judgments and decrees under this Act [§§ 34-2501 — 34-2512, may be reviewed as other orders, judgments and decrees.
34-2508 When a proceeding under this Act [§§ 34-2501 — 34-2512] involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.”
Appellants alleged in their petition that they own or lease numerous tracts of real estate which now are, and have been for several years, used for outdoor advertising upon billboards erected under city permits and in full compliance with laws and ordinances in effect at the time the property was acquired or the billboards erected; that some of these tracts are of unusual size and shape, were acquired for the sole purpose of constructing billboards and have little, if any, other economic use; that the provisions of the amended ordinance requiring removal of nonconforming billboards within three years and other requirements applicable to existing billboards are vague, arbitrary and discriminatory, and have the practical effect of eliminating virtually all such structures. They alleged that the ordinance provisions now in issue are unconstitutional because they deprive appellants of their property without due process of law and without adequate compensation contrary to Art. 2, § 22, of the Arkansas Constitution, and certain provisions of the United States Constitution. Article 2, § 22 reads:
“The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”
We have long held that a court of equity has jurisdiction to enjoin the taking of property without provision for just compensation. Martin, Ex Parte, 13 Ark. 198, 58 Am. Dec. 321; Organ v. Memphis & L.R.R. Co., 51 Ark. 235, 11 S.W. 96; Ark. State Highway Comm’n v. Hammock, 201 Ark. 927, 148 S.W. 2d 324; see also Board of Directors St. Francis Levee Dist. v. Redditt, 79 Ark. 154, 95 S.W. 482; Independence County v. Lester, 173 Ark. 796, 293 S.W. 743; Ark. State Highway Comm’n v. Partain, 192 Ark. 127, 90 S.W. 2d 968.
In Brown v. Cheney, supra, the constitutionality of a legislative act was attacked through a petition for declaratory judgment filed in chancery court. The chancellor sustained a demurrer to the petition and in reversing the decree of the chancellor, we held that a demurrer to the petition for declaratory judgment was improperly sustained where the petition alleged that the provisions of the act relating to privilege taxes and licensing of coin-operated music vending machines were arbitrary, capricious, discriminatory and confiscatory in violation of the provisions of the Arkansas Constitution. Since we found that the truth of these allegations was a question of fact, but, if proved, could render the act unconstitutional, we reversed the decree sustaining the demurrer and directed that further proceedings be had in the trial court.
We are of the opinion, and so hold, that the petition for declaratory judgment in the case at bar was not outside the jurisdiction of the chancery court and that the petitioners did not have an adequate remedy at law. The decree is reversed and the cause remanded to the chancery court of Washington County with directions to overrule the demurrer and proceed further consistent with this opinion.
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Frank Holt, Justice.
Appellant brought this action to condemn .58 of an acre from appellees’ 13.5 acre tract of land. The jury fixed the appellees’ (landowners) compensation at $7,500. For reversal the highway commission first contends that the court erred in failing to strike the value testimony of the landowner Bowman. He valued his land at $15,000 per acre. He estimated his damages at $8,000 for the land taken and $7,000 to the remaining land. It is insisted that his testimony is merely an opinion of what the land was worth to him and there was no satisfactory explanation or reasonable basis for his conclusion as to damages for the land actually taken. Appellant does not question the severance damages on the theory that if the landowner’s evidence as to the before value of his lands is insubstantial then the verdict cannot be sustained.
On direct examination Bowman testified that he had lived in the area for 50 to 31 years. He had been observant of property values, sales and land purchases in the area for several years. He had sold certain lots from other property in the area. One of these lots, 100’ x 119’, was sold for $3,000. Directly across the highway a 100’ frontage lot sold for $3,000. However, Bowman did not consider this property as being comparable to his since it was “swamp ground.” Bowman’s severance damage opinion ($7,000) resulted from the appellant’s removing 16” from a service station building being used for office purposes; also, as a result of the taking the highway will be closer to his residence located on the 13.5 acres and a part of the remaining lands will become unsuitable for residential or subdivision development which is its highest and best use. However, the following excerpt from the landowner’s testimony on cross-examination reflects its defectiveness:
"Q. ***I believe you testified the land was worth $15,000 an acre in your opinion there on the highway frontage?
A. It would be with this. $8,000 and then $7,000 for the damage.
Q. Maybe I misunderstood you. I thought you told me you considered your land — not talking about damage or anything else — I thought you testified in your opinion you thought that land was worth $15,000 an acre. Did you say that?
A. I said I thought it probably would be worth that much.
Q. What did you base that on?
A. I didn’t base it on anything.
Q. You don’t know of any sale of an acre of ground along there at $15,000 an acre, do you?
A. No.
Q. What you are saying, that is what it is worth to you?
A. Right.”
A landowner’s testimony as to what the property is worth to him is not substantial evidence. Ark. State Highway Comm’n v. Perryman, 247 Ark. 120, 444 S.W. 2d 564 (1969). In the case at bar we are of the view that the cross-examination of Bowman revealed that his testimony is insubstantial since he candidly admitted that he “didn’t base it [estimate] on anything,” which prefaced his statement that his $15,000 per acre estimate represented what his property was worth to him. Appellees cite as controlling in this situation our recent case, Arkansas State Highway Comm’n v. Metz, 252 Ark. 1195, 482 S.W. 2d 802. There on cross-examination, Metz testified as to what the property was worth to him; however, since this was an isolated or “loaded question,” we found no error because Metz, as did Bowman in the case at bar on direct examination, demonstrated an adequate knowledge of market values. In the instant case, however, we consider the questions and the resulting answers as being more than the result of a “loaded question.” The question was not confined to what the property was worth to him. The landowner actually admitted that he “didn’t base” his valuation on “anything.” Therefore, as stated, we cannot approve his explanation as constituting a fair and reasonable basis.
Appellant next asserts for reversal that the court erred in failing to strike the value testimony of the landowner’s expert witness, Van Natta. In view of a retrial we deem it necessary to discuss this assertion. This witness testified that $7,000 per acre was the before value of the property. It appears that he estimated the value of .58 acres taken at approximately $4,000 and allocated $3,000 for damages to die remaining lands for a total of $7,- 000. It is appellant’s contention that Van Natta was unable to give a reasonable bases for his value opinion. Van Natta, on cross examination, testified that he established the before value by the use of comparable sales. He cited a $3,000 highway frontage sale acress the street from the Bowman property. He was unable to give the size or dimensions of this property. Van Natta admitted that the property had “a very decided difference” or “variable” between it and the subject property. He recited a $10,000 transaction involving a commercial tract (less than an acre) across the street from the Bowman property. However, he classified Bowman’s property as being residential as to its highest and best use. At no time did he ever demonstrate a sufficient knowledge of any sales of lands for residential purposes in the area (Lake City) or in the nearby city of Jonesboro. He acknowledged there is a residential development on the south of Bowman’s property. He stated he had made a study of the market in this area in “another appraisal,” however, he didn’t "have those figures with me.” Although Van Natta testified no acreage now exists within the city limits of Lake City for residential development except appellees’ lands, we are of the view that he did not demonstrate on cross-examination a reasonable and satisfactory basis for his value opinion. Of course, it was not necessary that comparable sales be limited to the city. He did not know the size of the property across the street which sold for $3,000, The $10,000 commercial sale of less than an acre admittedly was decidedly different in comparison to the subject property. In these circumstances we must hold Van Natta’s testimony deficient.
“In deciding the question of law whether the verdict is supported by substantial evidence we must evaluate the opinions of the witnesses for appellees in relation to the bases upon which they are founded.” Ark. State Highway Comm’n v. Perryman, supra. In the case at bar, as there, we cannot say that the value opinions of appellees constitute substantial evidence which supports the jury verdict.
Reversed and remanded.
Harris C. J., and Byrd, J., dissent. | [
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PER CURIAM
Motion of Architectural Products Company and Binswanger Glass Company for partial remand (in which Nabholz Construction Corporation and St. Paul Fire & Marine Insurance Company joined) is denied because movants are not parties to this appeal and because jurisdiction of the issues on the interpleader filed by Nabholz Construction Corporation is not vested in this court by the present appeal. The trial court retains jurisdiction to proceed with the disposition of those issues as if this appeal had never been taken.
John A. Fogleman, Justice. Architectural Products, Inc., and Binswanger Glass Company filed a motion asking this court to remand this case to the Chancery Court of Pulaski County to the extent necessary to invest that court with jurisdiction to try issues among J. E. Lightle, Jr., as receiver of HLB Enterprises, the movants, Nabholz Construction Corporation and St. Paul Fire & Marine Insurance Company. Nabholz and St. Paul joined in the motion. Appellee 555, Inc., admits that the relief sought by Architectural Products, Inc., and Binswanger could not in any way affect the rights of the parties to the appeal or the funds held by the receiver to which they are entitled regardless of the outcome of this appeal. None of the movants was a party to the proceedings at the time appellant Valenda Bleidt took this appeal. We have denied the motion by per curiam order, which would ordinarily constitute the only action here. Because of the question posed here, however, we deem it advisable to issue an opinion for the convenience of the bench and bar.
In order that the question presented by the motion be understood, we outline the background as disclosed by the motion and responses. In April 1971, Searcy Glass Company, a subsidiary of HLB Enterprises, Inc., contracted to furnish certain labor and materials to Nabholz Construction Corporation, the prime contractor in the construction of a hospital. Binswanger furnished glass and Architectural Products, Inc., furnished aluminum windows to Searcy Glass Company.
On November 19, 1971, HLB brought an action for damages for trade slander and breach of a covenant not to compete against 555, Inc., and Glen Capps in the Circuit Court of Pulaski County. 555 answered and obtained permission to make appellant Bleidt, First Security Bank and Associates Capital Company third party defendants, alleging that all of them claimed security interests against HLB and foreclosure of these security interests and determination of the rights of these third parties would be necessary. 555 then filed a counterclaim and a cross-complaint against Valenda Bleidt, First Security Bank, Associates Capital Company and Mon-ark Boat Company, claiming that its lien was superior to theirs. 555 also asked that a receiver be appointed to take charge of the assets of HLB. On motion of 555, the cause was transferred to equity on January 3, 1972.
On April 5, 1972, the chancery court entered the decree from which this appeal was taken. The plaintiff had taken a nonsuit, so the cause was heard upon the counterclaim and cross-complaint of 555, and the complaints of Valenda Bleidt and First Security Bank for foreclosure. The decree included judgments in favor of the Bank and appellant Bleidt who were held to have security interests in assets of HLB. The court declared that the lien of First Security Bank was paramount to those of the others then parties to the proceeding and that the security interest of Valenda Bleidt was inferior to that of First Security Bank, but paramount to those of all other parties. The court appointed J. E. Lightle, Jr., receiver to take charge; of the assets of HLB and hold them subject to further orders of the court. Appellant Bleidt gave notice of appeal from this decree on April 27, 1972.
On August 11, 1972, Nabholz intervened and inter-pleaded $5,574, alleging that this was the total balance due HLB upon the contract and joined Architectural Products and Binswanger as parties to the action. On August 22, 1972, this appeal was docketed here. On August 30, 1972, Architectural Products and Binswanger cross-complained against Nabholz and the surety on its payment and performance bond, St. Paul Fire & Marine Insurance Company. The matter was set for trial on October 25, 1972, but movants alleged, and it is not denied, that the chancery court will decline to proceed with the trial of the issues raised as a result of the interpleader on the ground that the appeal has deprived that court of jurisdiction.
The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court, notwithstanding the appeal. Coleman v. Fisher, 66 Ark. 43, 48 S.W. 807; Arkansas National Bank v. McIlroy Banking Company, 128 Ark. 81, 193 S.W. 278; 4A C.J.S. 399, 413, Appeal and Error, §§ 608, 618; 4 Am. Jur. 2d 834, Appeal and Error § 355.
The cases cited above were decided before the adoption of Act 555 of 1953, but there is nothing in that act which changes the rule there delineated and applied.
The motion is denied because the movants are not parties to this appeal and because the chancery court has not, by this appeal, been deprived of jurisdiction of the issues they seek to have determined in that court. | [
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DAVID M. GLOVER, Judge.
| ^Appellant Jameko Williams was tried by a jury and found guilty of the offense of possession of cocaine with intent to deliver. In this appeal, he contends 1) that there is insufficient evidence to support his conviction, 2) that the trial court abused its discretion in denying his motion for a mistrial, and 3) that the trial court abused its discretion in allowing a state trooper to give his lay opinion concerning money that was found on Williams at the time of his ai'rest. We affirm.
Trooper David Tumey testified that he came into contact with Williams while on patrol in Crossett. As a result of his observations of the vehicle that Williams was driving, Tumey turned on his camera and began following Williams’s vehicle. In reviewing the patrol-car video tape for the jury, Tumey explained that the vehicle driven by Williams was weaving in the road, that the vehicle made a wide right turn without using a turn 12signal, and that the vehicle drove left of center in the middle of the roadway. He explained that he decided to make a traffic stop based on those observations. Tumey stated that when he approached the vehicle, Williams rolled the driver’s side window down two or three inches and “the smell of marijuana just, knocked me out.” Tumey said that he has been in law enforcement for seventeen years, that he has been a narcotics officer and K-9 handler, and that he had come in “contact with it a bunch.” His observations of Williams also made him suspect that Williams had been drinking because “he had red, watery eyes, his speech was slurred, and his breath smelled of intoxicants.” He had Williams exit the vehicle and began administering field-sobriety tests. As Tumey was testifying, Williams’s counsel, Ms. Hudson, a deputy public defender, asked to be excused, and the trial court called for a recess.
When the trial resumed, Tumey explained that after he conducted the field-sobriety tests, he concluded that Williams was under the influence of a controlled substance rather than alcohol. He also explained that two Crossett police officers arrived to assist as he was conducting the field-sobriety tests. He identified the passengers in the video, explained where they had been seated in the vehicle, and described what the officers found during their pat-downs and the search of the vehicle. Tumey then testified that one of the Crossett police officers, Officer Black, asked him if he had seen the clear plastic baggie (containing cocaine), hanging from between the mirror and the driver’s window. He explained that he had not seen it until Officer Black pointed it out, but that he did not observe any of the passengers throw anything out after the stop and that, based |3on his experience and training, he believed that Williams had tried to toss the baggie when he had swerved the vehicle “way left.” He explained that the video of the stop ended at that point.
Tumey testified that he had worked undercover, purchasing crack cocaine, more than a hundred times, and that the substance in the photograph was consistent with crack cocaine. The prosecutor then asked to have Tumey declared an expert in the field of narcotics investigation, transactions, and the value of crack cocaine. Ms. Hudson, Williams’s counsel, objected, and the court asked the prosecutor if he wanted to voir dire Tumey.
During the State’s voir dire of Tumey concerning his experience, Ms. Hudson had to leave the courtroom again. The court declared another recess. Later, out of the jury’s presence, Mr. Steve Porch, chief legal counsel for the public defender’s office, arrived. In response to the trial court’s question regarding who was going to go forward with the trial, Mr. Porch stated, “Both of us will finish it because I need to know what she knows.” The court responded, “Okay. I don’t have a problem with that.” The argument between defense counsel and the State about declaring Tumey an expert then continued. The prosecutor eventually stated, “If the whole idea is that he’s being called an expert by the Court, I’ll withdraw that and then I can ask my questions and he can still give that opinion.” The trial court ruled that he would allow Tumey to give his opinions, noting the exception by the defense.
[4Ms. Hudson then moved for a mistrial, contending that because of her illness, the trial had become fragmented, and it would be unfair to her client and to the jury to continue. The trial court denied the motion, reasoning that Porch and Hudson were capable of going forward and that it was not a case of great complexities.
The direct examination of Tumey continued, with the trooper explaining that the photograph showed approximately six white rocks, each about the size of an eraser, and that it was consistent with what he purchased in the past when he bought cocaine or crack cocaine as an undercover officer. He said that one rock usually sold for about $20. Tumey concluded by stating that he took Williams to the Crossett Police Department, and Williams had about $418 on his person in twenties, tens, fives, and ones. Tumey expressed the opinion that the “amount, the way this money was found would be consistent with drug sales.”
Simone Phillips testified that she was with Williams in the vehicle when it was stopped by police. She said that she, Williams, Marisha Mitchell, and Johnny Mack were all in the vehicle. She said that when they saw the police lights come on, Williams rolled the window down to air out the vehicle but that she did not know about him throwing anything out. She acknowledged that in her statement, she did not say anything about letting the smoke out and that the statement also said that she did not actually know if he threw anything out, but she assumed when he rolled the window down it was to let something out. She denied throwing out the baggie herself and said that she did not see [ .^anybody else throw anything out the window after the vehicle was stopped. She said that she was sitting in the passenger seat, and that she received a ticket for possession of marijuana but denied being given a deal to testify. She said that they were all smoking marijuana, that she did not see Williams with any crack, and that she did not see him throw out any crack.
Christy Williford testified that she works for the Arkansas State Crime Lab as a forensic chemist, that she performed the forensic tests, and that she found 0.8406 grams of cocaine base, commonly known as crack.
The State rested, and the defense moved for a directed verdict, contending that the State had not established Williams’s possession of the cocaine with intent to deliver. The trial court denied the motion. The defense rested. The jury deliberated and then returned a guilty verdict.
For his first point of appeal, Williams challenges the sufficiency of the evidence supporting his conviction, contending that the State failed to prove that he ever had possession of the contraband. We disagree.
In reviewing the sufficiency of the evidence supporting a conviction, we view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the conviction. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Substantial evidence is evidence forceful enough to compel a conclusion beyond suspicion or conjecture. Id. Credibility determinations are left to the fact-finder. Id.
| fiThe baggie containing the crack cocaine was not physically in Williams’s possession when it was found. Consequently, in deciding if the State established that he constructively possessed it, we look to whether the contraband was located in a place that was under the dominion and control of the accused. Holt v. State, 2009 Ark. 482, 348 S.W.3d 562. Constructive possession can be implied when the controlled substance is in the joint control of the accused and others, but there must also be some additional factor linking the accused to the contraband, indicating his knowledge and control of the contraband. Id. In cases involving multiple occupants of a vehicle, our supreme court has identified several linking factors, including: 1) whether the contraband was in plain view, 2) whether it was found in the accused’s personal effects, 3) whether it was found on the same side of the vehicle seat as the accused or in close proximity, 4) whether the accused is the owner of the vehicle or exercises dominion and control over it, and 5) whether the accused acted suspiciously before or during the arrest. Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995).
Here, viewing the evidence in the light most favorable to the State, Williams was driving the vehicle, and thus exercising dominion and control over it. Although Tumey did not initially observe the baggie hanging from the driver’s side mirror, that is where it was found by another officer during the course of the stop, in plain view. Tumey testified that, based on his experience, Williams’s swerving of the vehicle was an indication that he was trying to throw something out of the driver’s window. He also testified that he did 17not observe any other occupant throw anything out of the vehicle. Simone Phillips, an occupant, testified that she did not see Williams throw out the baggie, but neither did she see anyone else do so, and she denied throwing it out herself. We hold that there was substantial evidence to support the conclusion that Williams possessed the contraband.
For his second point of appeal, Williams contends that the trial court erred in denying his motion for mistrial. The motion was made by Williams’s original counsel, Ms. Hudson, whose sudden illness caused her to have to leave the trial on two occasions: 1) during the direct examination of Tumey, and 2) during her voir dire of Tumey in the State’s attempt to have him qualified as an expert in drug trafficking so that he could testify about how the money found on Williams was indicative of drug dealing. The argument she made below for declaring a mistrial was that the trial had become fragmented, with interruptions at critical points, causing a considerable delay, and that those concerns made it unfair to Williams and to the jury to continue. No request to admonish the jury was made. To the extent that Williams attempts to expand the argument in this appeal by also arguing that the new attorney was brought in with no explanation to the jury, we do not address that portion of the argument because it was not preserved for appeal.
Declaring a mistrial is a drastic remedy and proper only where the error is beyond repair and cannot be corrected by any curative relief. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). The trial court should resort to mistrial only where the error complained of is so prejudicial that justice cannot be served by continuing the trial or |8when the fundamental fairness of the trial itself has been manifestly affected. Id. Because the trial court is in a better position to determine the effect of a remark on the jury, it has wide discretion in granting or denying a motion for a mistrial, and its discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Id. In reviewing a mistrial motion, we look at all developing circumstances that surround an incident to determine whether a manifest abuse of discretion occurred. Plessy v. State, 2012 Ark. App. 74, 388 S.W.3d 509.
The question to be answered here is whether, in reviewing all of the circumstances surrounding this incident, we determine that a manifest abuse of discretion occurred. We find no abuse of discretion. There were only two interruptions, and we are not convinced that the trial became so “fragmented” by those delays as to be unfair to Williams. Moreover, Ms. Hudson remained at the defense table to assist co-counsel when he came in to replace her as lead counsel; so, neither are we convinced that Williams was in any way prejudiced by the substitution of lead counsel.
As his final point of appeal, Williams contends that the trial court abused its discretion by permitting Tumey to render a lay opinion that the amount of money and the way it was found on Williams at the time of his arrest were consistent with drug sales. We disagree.
The colloquy at trial concerning this evidence was somewhat confusing because the majority of the evidentiary argument between the State and defense counsel concerned | ¡/Turney's qualifications as an expert witness. Once the State withdrew its efforts to present his testimony as expert, the trial court rather summarily allowed Tumey to offer his lay opinion instead, with the trial court noting the defense exception to that type of opinion. Tumey testified that the amount of money found on Williams at the time of arrest, $418, and the fact that it was in denominations of twenties, tens, and fives, were consistent with drug sales.
Rule 701 of the Arkansas Rules of Evidence provides:
Rule 701. Opinion testimony by lay witnesses.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.
See also Bridges v. State, 327 Ark. 392, 938 S.W.2d 561 (1997) (explaining that Rule 701 is not a rule against opinions, but one that conditionally favors them). This court will not reverse a trial court’s evidentiary ruling unless it abused its discretion in making the ruling. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). We find no abuse of discretion in the trial court allowing Turney’s lay opinion on this issue. Tumey testified that he had been involved in many undercover drug deals. This established a rational basis upon which to express his opinion, and this testimony helped flesh out the issue of whether Williams possessed the cocaine with intent to deliver. In short, the trial court did not | ,0abuse its considerable discretion in allowing this opinion testimony. It was then up to the jury to determine how much weight that opinion should be given.
Affirmed.
GRUBER, J., agrees.
HART, J., concurs. | [
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PER CURIAM
| lAppellant Paul Woodson filed a petition for writ of habeas corpus in the circuit court of the county in which he was incarcerated, and the circuit court dismissed the petition. Woodson appeals the circuit court’s order dismissing the petition. We affirm.
In his petition for the writ, Woodson alleged that he had been convicted of two counts of first-degree sexual assault on a guilty plea and sentenced to concurrent terms of 240 months’ imprisonment in the Arkansas Department of Correction (“ADC”) with an aggregate sentence of forty years’ imprisonment. As grounds for issuance of the writ, Woodson asserted in the petition that the statute requiring him to serve 100 percent of his sentence was unconstitutional because there was no in-court determination that he was a violent second offender, that the ADC had incorrectly determined that he was a violent second offender, that he would not have entered his plea if he had been advised that he would have to serve 100 percent of his sentence, and that the judge at his plea hearing had failed to follow the required procedure because he was | ?not advised that he would be required to serve 100 percent of his sentence. Woodson also alleged that trial counsel had assured him that he would only have to serve one quarter of his sentence before he was eligible for parole; that the sentence was not supported by sufficient evidence; that the State had, violated the plea agreement; and that his plea was not knowingly, voluntarily or intelligently made because he relied on representations made before and at the plea hearing that he would not have to serve more than ten years of the forty-year sentence.
The circuit court dismissed the petition, noting that Woodson had failed to attach a copy of the contested judgment to the habeas petition. The court, however, dismissed with prejudice after it found that curing the defect would be futile because the claims in the petition were without merit. The circuit court concluded that the allegations in the petition did not establish probable cause that Woodson was being held illegally, that the trial court lacked jurisdiction, or that the commitment was invalid on its face.
On appeal, Woodson alleges that the circuit court erred in denying relief on the basis that he failed to state probable cause to show that he was illegally detained. Woodson’s arguments on appeal are that, despite the circuit court’s conclusion to the contrary, he raised allegations in the petition that were cognizable in a proceeding for the writ. Woodson does not contest that he failed to attach to the petition a copy of the judgment that he sought to challenge. He reasserts his claims in the petition, however, and contends that issues concerning parole ^proceedings are cognizable in habeas proceedings.
A petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark.Code Ann. § 16 — 112— 103(a)(1) (Repl. 2006). A petitioner who seeks a writ of habeas corpus has the burden to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face. Fields v. Hobbs, 2013 Ark. 416. Unless the petitioner pleads one of these two grounds for relief and makes a showing of probable cause to believe that he is illegally detained, there is no basis for a finding that a writ of habeas corpus should issue. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007).
We agree with the circuit court’s findings that the claims stated in Wood-son’s petition did not state a basis to support issuance of the writ. Issues concerning the improper denial of parole generally do not implicate jurisdiction or the facial validity of the commitment.' See Robinson v. Felts, 2015 Ark. 174 (per curiam). A challenge to the constitutionality of a parole eligibility statute is not a cognizable claim in habeas proceedings. Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987). Claims of a violation of proper plea procedure or that the plea was not entered voluntarily are not cognizable in proceedings for the writ. See Chance v. State, 2015 Ark. 154 (per curiam); Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam). To the extent that Woodson’s allegations may be construed as claims of ineffective assistance of counsel, those claims are also not cognizable in habeas proceedings. McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992).
l4Woodson’s claims were of the type that may be brought at trial or in a petition for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2014). A habeas proceeding does not afford a prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal or postconviction relief. Brown v. Hobbs, 2014 Ark. 267, 2014 WL 2566091. Because Woodson failed to allege grounds that fall within the narrow parameters recognized in the habeas statute, his petition was without merit, and it was not error for the trial court to dismiss the habeas petition. Robinson, 2015 Ark. 174, 2015 WL 1775691.
Affirmed.
. As of the date of this opinion, Woodson remains incarcerated in Lincoln County.
. Woodson does include a copy of a judgment of conviction in his addendum to the brief. We do not consider it, however, because the judgment is not included in the record before this court. This court does not consider matters outside of the record on appeal. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). Moreover, as noted, the circuit court's ultimate decision to dismiss with prejudice was based on its finding that the claims in the petition were without merit. | [
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ROBERT J. GLADWIN, Chief Judge
| lAppellant Mohammad Ashraf Lone appeals the August 15, 2014 order entered by the- Pulaski County Circuit Court. He argues that the circuit court erred when it denied his motion to set aside the judgment previously entered in favor of appel-lee Rick Koch d/b/a Rick Koch Oil Company (collectively “Koch”). Koch cross-appeals, arguing that the circuit court erred when it stayed all execution of the judgment until he appeared in person to show cause why he should not be held in contempt for failing to appear for his deposition. We affirm on direct appeal and reverse and remand on cross-appeal.
Facts
Mohammad Lone and Lone’s Jacksonville, Inc. (collectively “Lone”), and- Koch entered into a “Retailer Product Sales Agreement” (the “RPSA”) dated November 1, 2011. |2Under the RPSA, Koch paid Lone for the rights to supply fuel to two convenience-store locations as follow's: $200,000 for a location in Wichita, Kansas, and $50,000 for a location in Johnson, Arkansas.
Under the RPSA, Lone was contractually obligated to provide Koch the rights to provide fuel to two stores. After executing the RPSA and accepting the $200,000, Lone was unable to open the Wichita store and was in default of the RPSA. On April 2, 2012, six months after the RPSA had been executed, Koch emailed Lone demanding the return of its $200,000 and advising that failure to do so would result ■in legal action. Lone did not return the $200,000 to Koch.
On April 26, 2012, Koch filed a lawsuit in Oklahoma district court alleging a single claim for breach of the RPSA and seeking to recover the $250,000 that had been advanced for the right to supply fuel to the two convenience-store locations, plus additional consequential damages. Lone was served with the lawsuit on May 29, 2012. After the lawsuit had been filed, Lone met with Koch and they negotiated in an attempt to settle the lawsuit by modifying the RPSA to substitute a different store location for the Wichita store. . Based on his understanding 'of their agreement, Lone did not file an answer or otherwise appear in the lawsuit.
The modification agreement was drafted and sent to Lone via email by Koch’s employee, Tom Howell, on June 29, 2012. Lone returned an executed copy of the modification agreement by email on July 3, 2012. The modification agreement provided that the RPSA was modified to substitute a store located in Frontenac, Kansas, for the Wichita | -¡store that appeared in the original RPSA. Pursuant to the terms of the modified RPSA, Koch supplied fuel to both the Frontenac store and the Johnson store after Lone signed the modification agreement. However, Koch claims that he never executed the modification agreement and never told Lone that the Oklahoma lawsuit had been dismissed or otherwise resolved.
Koch did not dismiss the lawsuit, and on January 4, 2013, without notice to Lone, Koch obtained a default judgment against Lone in the amount of $268,000 (the “judg ment”). At the time the judgment was entered, Koch was supplying fuel to both the Frontenac store and the Johnson store under the terms of the modified RPSA. Koch filed the Oklahoma judgment, and it was registered in Arkansas with the Pulaski County Circuit Court on September 6, 2013, and an order confirming registration of foreign judgment was entered on October 4, 2013.
On May 5, 2014, Lone filed a motion to set aside the judgment and to stay execution based on fraud, misrepresentation, and misconduct of Koch in obtaining the judgment. An amended motion was filed on July 1, 2014, and a hearing was held on the motion on July 16, 2014. Koch did not appear at the hearing. Lone testified at the hearing, and the circuit court received twenty-three exhibits, including emails from Koch and his agents concerning the modified RPSA substituting the Frontenac store for the Wichita store.
Koch’s counsel deferred cross-examination of Lone, and Lone rested. After Lone rested, Koch’s counsel moved to dismiss the motion to set aside the judgment. The circuit court granted the motion to dismiss and denied Lone’s motion to set aside the judgment, ^determining that Lone had failed to prove fraud in the procurement of the judgment by clear and convincing evidence. In its ruling, the circuit court also stayed all execution of the judgment until such time as Koch appeared in person to show cause why he should not be held in contempt for failure to attend a scheduled deposition. The circuit court’s ruling was memorialized by an order entered on August 15, 2014. Lone filed a timely notice of appeal on September 15, 2014. Koch filed a timely notice of cross-appeal on September 23, 2014.
Standard of Review
An order denying a motion to set aside a default judgment is an appealable order, see Marcinkowski v. Affirmative Risk Mgmt. Corp., 322 Ark. 580, 910 S.W.2d 679 (1995), which this court reviews for an abuse of discretion. Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 246 S.W.3d 883 (2007). The abuse-of-discretion standard is “a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration.” Gulley v. State, 2012 Ark. 368, at 10, 423 S.W.3d 569, 576.
I. Denial of Lone’s Motion to Set Aside the Judgment
Koch registered the judgment under the Uniform Enforcement of Foreign Judgments Act, codified at Arkansas Code Annotated sections 16-66-601 to - 608 (Repl. 2005) (the “Act”). Once registered under the Act, the judgment became, in effect, an Arkansas judgment. See Nationwide, 368 Ark. at 436, 246 S.W.3d at 886. A foreign judgment registered 1 fin Arkansas is subject to being set aside through a motion brought pursuant to Arkansas Rule of Civil Procedure 55(c) (2014). Id. at 437, 246 S.W.3d at 887. Rule 55(c) provides:
Setting Aside Default Judgments. The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
Fraud, whether actual or constructive, warrants the setting aside of a judgment. Dickson v. Fletcher, 361 Ark. 244, 206 S.W.3d 229 (2005) (decision under Ark. R. Civ. P. 60). Constructive fraud “may exist in the complete absence of dishonesty of purpose, evil intent or moral guilt.” Battles v. Morehead, 103 Ark. App. 283, 287, 288 S.W.3d 693, 697 (2008) (citations omitted). Lone cites West v. West, 103 Ark. App. 269, 288 S.W.3d 680 (2008), as a factual situation analogous to the facts of this case, and contends that he presented substantial, uncontroverted evidence of fraud, both actual and constructive, in addition to circumstances constituting misconduct by Koch.
Koch does not dispute that a foreign default judgment may be set aside pursuant to Rule 55(c), or that, once registered, the default judgment becomes, in effect, an Arkansas judgment. But in order to set aside the default judgment due to fraud in the procurement, Lone had to establish certain necessary elements of fraud by clear, strong, and satisfactory proof, as detailed in the next section, and we hold that Lone failed to do so.
Lone submits that he presented “clear and convincing undisputed evidence” that the judgment was procured by fraud, misrepresentation, or other misconduct by Koch. Lone | ¿urges that his testimony was uncontroverted, that his credibility was not called into question by cross-examination or otherwise, and that he introduced documentary evidence, including emails authored by Koch and his agents establishing the existence of the settlement agreement and the modification of the RPSA.
When he learned of the lawsuit filed on April 26, 2012, Lone arranged and attended a meeting with Koch. As a result of that meeting, Lone believed that he and Koch had reached an agreement to settle the dispute by substituting the Frontenac store for the Wichita store. Discussion of this proposed agreement was set out in a May 23, 2012 email sent to Lone from Howell that stated in part:
Enclosed is a spreadsheet showing what we would be willing to consider as replacement gallons for the Wichita store.... So in review: We would sign a contract on Frontenac and Sunset Comer and assume Marty’s anams and fix the Veedor Root at Johnson so we can monitor it according to the contract for the $250,000.00 we have already gave [sic] you and the unams [sic] at Johnson and the Sapphire Upgrades and we would release the Wichita store.
In the event that you feel that we are not able to come to a resolution or you are unwilling to move forward we would take back the $200,000.00 for Wichita and then our only demand would be fixing the Veedor Root.
(Emphasis added.) Howell’s email acknowledged that in no event would Koch be entitled to the return of the $50,000 paid for the Johnson store, which he was supplying with fuel as agreed pursuant to the terms of the RPSA.
On June 29, 2012, Howell sent Lone another email attaching “the proposed RPSA and Contract modification to transfer from Wichita to Frontenac.” The email included three other attachments: a Mutual Agreement for Transfer of Contracts; a Retailer Product Sales |7Agreement for two convenience stores in Ft. Scott, Kansas (the “Ft. Scott Contract”); and a Contract Modification Agreement (the “Modification Agreement”) memorializing the terms of the negotiated modifications to be made to the RPSA.
The Modification Agreement states that it is to modify the RPSA between the parties, and provides in part:
Buyer and Seller Agree to Exchange 3810 Woodlawn Wichita Kansas known as location # 1 of the RPSA for 5005 Parkview Drive Frontenac Kansas as spelled out in the special provisions section 33-1. This document releases any obligation for 3810 Woodlawn Wichita Kansas for Buyer or Seller and transfers the obligation to 5005 Parkview Drive Frontenac Kansas. Buyer has 30 days to complete the transfer.
Lone signed the Modification Agreement, and it was returned to Koch. Koch did not return a fully executed copy of the Modification Agreement to Lone and claims that he never signed it, but it is undisputed that the parties proceeded with performance of the RPSA as modified by the Modification Agreement.
Specifically, Koch supplied fuel to both the Johnson store and the Frontenac store after the Modification Agreement was signed by Lone. Howell sent Lone an email on September 24, 2012, in which he acknowledged the exchange of the Frontenac store for the Wichita store:
The operator in Frontenac Kansas is asking why his markup is .02 over posted rack. He was buying from Marty for a different mark up. We exchanged this for Wichita and the markup was .02 over post rack.
18(Emphasis added.) Lone also introduced credit-card advice reports evidencing that Koch, through his company, ASAP Energy, Inc., was supplying fuel to the Frontenac store after the Modification Agreement had been signed by Lone. Lone argues that the evidence was clear and convincing that the RPSA, which was the basis for Koch’s petition for breach of contract, was modified after the lawsuit had been filed and that the parties performed under the terms of the modified RPSA.
A hearing was held in the Oklahoma lawsuit on November 5, 2012, but Lone asserts he had no knowledge of the hearing. The November 5, 2012 entry to the docket, which was admitted into evidence, states, “CASE CONTINUED TO PRETRIAL, JANUARY 11, 2013, AT 9:30 A.M. FOR DEFAULT JUDGMENT.” As of November 5, 2012, Koch was supplying fuel to both the Frontenac and Johnson stores under the terms of the modified RPSA. Although Koch sent Lone an email on November 19, 2012, about the Johnson store, he never told Lone about the hearing or mentioned that the lawsuit was still pending. It is undisputed that Lone never filed an answer or otherwise appeared in the Oklahoma district-court lawsuit.
On December 21, 2012, Howell sent an email to Lone, with a copy to Koch, concerning an alleged breach of the Ft. Scott Contract. The Ft. Scott Contract involved the payment of $160,000 for ten-year fuel-supply agreements- on the two stores located in Ft. Scott, Kansas.- During this time, Koch and Howell were upset about issues that had arisen |9with getting the Ft. Scott stores open under that separate contract. However, Koch never filed a lawsuit against Lone for breach of the Ft. Scott Contract. The only reference in Howell’s December 21, 2012 email pertaining to the stores covered by the RPSA was to insurance for the Frontenac store. No one notified Lone that the lawsuit was still pending, that a hearing was set for January 4, 2013, or that a hearing was set for January 11, 2013.
Again, with Lone having no knowledge or notice, after failing to file an answer, a hearing was held on January 4, 2013, at which time Koch obtained the judgment against Lone for $268,000. The judgment states that “[e]ach and every allegation contained in the Plaintiffs Petition is taken as true and confessed against the Defendant.” Those allegations were that Lone had breached the RPSA by failing to complete the release of the Wichita and Johnson stores. We note that, as evidenced by the docket, no amended petition was filed in the Oklahoma lawsuit informing the court that the RPSA had been modified subsequent to the filing of the lawsuit to substitute the Frontenac store for the Wichita store, or that Koch was, as of January 4, 2013, supplying fuel to both locations pursuant to the modified RPSA.
On June 27, 2013, Koch sent Lone an email in which he stated:
I have a judgment against you for 268,-000.00 because I loaned you money to open the Wichita, Kansas store and you failed to get it open plus I loaned you 160,000.00 and paid several bills so you could open 2 Ft Scott, Kansas stores that are not open. I need to know when you plan to pay me the money you owe for not having these stores open. I need to hear from you on Monday 7-1-2013.
(Emphasis added.) At the time of this email, Koch was still supplying fuel to both the Frontenac and Johnson stores. This fact was acknowledged by Koch in a subsequent email | inhe sent on July 8, 2013, to the broker who had brought Lone and Koch together, where he stated:
Please help me get the Ft. Scott situation resolved. I have been treated very bad [sic] in every business deal so far that you and Mohammed have brought to me. I paid what I was told to pay and so far every deal is bad. The Arkansas store and Frontenac both under-perform and both Ft. Scott sites are closed. I feel I have no choice but to turn this situation over to my Attorney as soon as possible. Please contact me before 7-15-2013.
(Emphasis added.) Lone asserts that this undisputed evidence was clear and convincing that there was fraud, misrepresentation, and misconduct by Koch in the procurement of the judgment.
We disagree and hold that the circuit court did not abuse its discretion in finding that Lone failed to prove the necessary elements of fraud in the procurement of the default judgment by clear and convincing evidence. In order to set aside the default judgment due to fraud in the procurement of same, Lone had to establish the following necessary elements of fraud by clear, strong, and satisfactory proof: (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence upon which to make the representation; (3) intent to induce action or inaction in reliance upon the representation; (4) justifiable reliance upon the representation; and (5) damage suffered as a result of the reliance. West, 103 Ark. App. at 272, 288 S.W.3d at 683.
fyLone failed to identify a false representation of a material fact. Absent from the June 29, 2012 email sent from Howell to Lone — the one that Lone offers as evidence of an “agreement” between the parties — is any reference to the pending Oklahoma lawsuit. The email speaks in conditional terms: “what we would be willing to consider.” (Emphasis added.) None of the documents or testimony revealed that Koch ever told Lone that he would dismiss the lawsuit in exchange for an agreement to substitute the Wichita store for the Frontenac store. The circuit court specifically found that Koch never told Lone that the Oklahoma litigation had gone away or that the matter had been resolved. Lone seems to imply that he had the right to assume that if Koch did not tell him that the lawsuit had been dismissed; it had been, but, a party cannot invoke the aid of the court in setting aside a judgment where he failed to keep himself informed. See Diebold v. Myers Gen. Agency, 292 Ark. 456, 731 S.W.2d 183 (1987). The circuit court correctly concluded, after due consideration, that Lone had not established this necessary element of fraud.
Lone complains that Koch failed to disclose something to him — specifically, that the lawsuit had not been dismissed or was not resolved. But we note that Lone and Koch were not in any confidential relationship; to the contrary, they were on opposite sides of an adversarial lawsuit. In order to prove that Koch’s silence constituted fraud, Lone was obligated to demonstrate that Koch concealed a material fact and that Koch had a duty to disclose that fact. Ward v. Worthen Bank & Trust Co., N.A., 284 Ark. 355, 681 S.W.2d 365 (1984). We hold that the circuit court did not err in finding that Lone failed to prove either.
| ^Additionally, the record is devoid of any allegation that Koch ever asked Lone not to file an answer or otherwise respond to the Oklahoma complaint. . Lone could have filed an answer or other response in the Oklahoma litigation, which would have preserved his rights, and at the same time still have been able to negotiate a potential settlement with Koch. Accordingly, we hold that there was no error in finding that Lone failed to prove that Koch had any intent to induce action or inaction in reliance upon any alleged representation.
Finally, there is no merit in Lone’s argument that he justifiably relied on any alleged promises of settlement. The lawsuit was filed on April 26, 2012, and served on Lone and the related entity on May 8, and May 3, 2012, respectively. An answer was due, at the latest, on or before May 29, 2012. Lone did not execute the modification or transfer agreement until July 3, 2012, well after he was already in default. The default judgment was not entered in Oklahoma until January 4, 2013. It cannot be said that Lone justifiably relied on any promises of settlement when he never received a fully executed Modification Agreement from Koch, never received notice of a dismissal or other pleading resolving the Oklahoma case, and never received any communication from Koch indicating that the lawsuit had been resolved.
Lone also argues that the fraud that forms the basis of his motion to set aside the default judgment under Rule 55(c) also provides a meritorious defense to the Oklahoma lawsuit. Lone asserts that, had he not been deceived by a false promise of compromise, he | lswould have asserted the Modification Agreement as his meritorious defense at trial. We reiterate that Lone did not execute the Modification Agreement until his deadline for filing an answer in the Oklahoma litigation had passed by more than a month. Accordingly, what Lone deems his meritorious defense, such as it is, did not exist until he was already in default. The circuit court correctly concluded that Lone failed to prove the necessary elements of fraud in the procurement of the judgment by clear and convincing evidence and, thus, properly denied the motion to set aside the default judgment.
II. Cross-Appeal Regarding Stay of Execution of Judgment
Koch filed a cross-appeal of the circuit court’s order based on paragraph two of the order in which the circuit court stayed any execution of the judgment until Koch appeared in person in court to show cause why he should not be held in contempt for failing to appear at his deposition.
On May 6, 2014, Lone served a notice of deposition upon Koch to depose him on May 22, 2014, and, in response, Koch filed a motion to quash deposition notice. Lone filed his response to the motion to quash deposition notice on May 15, 2014, and on May 21, 2014, the circuit court denied the motion. Koch subsequently sought reconsideration of the circuit court’s order denying his motion and, thereafter, for a protective order, which were also denied. Counsel for Koch objected to the circuit court staying execution until Koch appeared to show cause why he should not be held in contempt on the grounds that there had been no motion to compel, no motion for contempt, or any other due-process proceedings.
[ 14Criminal contempt preserves the power of the court, vindicates its dignity, and punishes those who disobey its orders, while civil contempt protects the rights of private parties by compelling compliance with orders of the court made for the benefit of private parties. Omni Holding & Dev. Corp. v. 3D.S.A., Inc., 356 Ark. 440, 156 S.W.3d 228 (2004). Here, the possible contempt contemplated by the circuit court for failure to attend the deposition is that of civil contempt. In order to establish contempt, there must be willful disobedience of a valid order of a court. See Ivy v. Keith, 351 Ark.269, 92 S.W.3d 671 (2002). Before one can be held in contempt for violating the court’s order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Id.
Arkansas courts have held that a court may initiate contempt proceedings on its own motion, and a court may recite the offending matters in an order and direct a citation thereon to show cause. Clark v. State, 287 Ark. 221, 224, 697 S.W.2d 895, 896 (1985). But where the court initiates its own motion for contempt or motion to show cause, there is a prior order that has, at least allegedly, been disobeyed or violated. Here, there was no such order. The circuit judge ruled from the bench that, while he was not holding Koch in contempt at that time, prior to levying any execution regarding the judgment, Koch would have to appear in person and be prepared to defend a contempt issue. The record is devoid of any indication that Lone had sought to compel Koch’s attendance at any deposition or filed any motion for contempt. There was no order, definite or otherwise, from which Koch could even potentially be found in contempt for willfully disobeying. Accordingly, we hold that the circuit court erred in prematurely staying all execution of the judgment until such time |lsas Koch appeared to show cause why he should not be held in contempt for the willful disobedience of a “nonexistent order.”
At the time of trial, a writ of execution had been served on Lone, and his vehicle had been picked up by the Pulaski County Sheriff. Lone was allowed to retrieve his vehicle from the sheriff without payment to Koch and without putting up any bond. Arkansas Code Annotated section 16-66-301 and its accompanying statutes contain the exclusive means of staying or vacating writs of execution, and all other means are excluded. See Looney v. Raby, 100 Ark. App. 326, 268 S.W.3d 345 (2007). The statute requires a petition verified by affidavit, setting forth good cause why the execution ought to be stayed. While Lone’s motion and amended motion to set aside the default judgment and for stay of execution both included an affidavit of Lone, neither the motions nor the affidavits include any reference to the execution or Koch’s failure to attend any deposition. Furthermore, Lone was not required to put up any bond or other security whatsoever as contemplated by section 16-66-301(b)(1). Because there has been no order violated, much less a finding that Koch was in contempt of any such order, we hold that the circuit court erred in staying the execution of the judgment. Accordingly, we reverse and remand for further-proceedings.
Affirmed on direct appeal; reversed and remanded on cross-appeal.
Virden and Hixson, JJ., agree.
. September 14, 2014, fell on a Sunday.
. The Ft. Scott Contract was related to a separate transaction between the parties un related to the RPSA or the agreed-upon modified RPSA.
. Lone introduced a certified copy of the record from the Oklahoma court as Exhibit 1.
. Lone asserts both constructive and actual fraud. Constructive fraud is premised on representations that are made by one who, not knowing whether they are true or not, asserts them to be true. Beatty v. Haggard, 87 Ark. App. 75, 184 S.W.3d 479 (2004). Even in cases of constructive fraud, a material misrepresentation of fact must be made. Here, there is no evidence that Koch made any representation to Lone that he would dismiss the lawsuit upon execution of the Modification Agreement or that, even after Lone exe cuted the Modification Agreement, the lawsuit had been dismissed or resolved.
. To the extent that this court would consider the unsigned Modification Agreement and related contracts in reversing the trial court, Lone should have abstracted Koch’s objections to same. Koch declined to submit a supplemental abstract in accordance with Ark. Sup. Ct. R. 4-2(b)(l) (2014). | [
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TOM Glaze, Justice.
Appellant Tommy McIntosh appealed his conviction of aggravated assault and sentence of nine years to the court of appeals, and raised three points for reversal. The State responded first by filing a motion to dismiss wherein it claimed McIntosh had prematurely filed his motion for new trial on August 28, 1998, or five days before his conviction judgment was entered on September 2, 1998. The State asserted that, because McIntosh’s motion was untimely and ineffective, his time for appeal had not been extended, and therefore his thirty-day period for appeal commenced from September 2, 1998, and ended on October 2, 1998. Because McIntosh waited until October 22, 1998, to file his notice of appeal, the State argued McIntosh’s appeal was late and should be dismissed.
In response to the State’s dismissal motion, McIntosh argued to the court of appeals that he had filed two supplemental motions for new trial after his conviction judgment was entered on September 2. These two motions were filed on September 21, 1998, and September 23, 1998, wherein he essentially re-alleged the same grounds previously contained in his prejudgment motion of August 28, 1998. He stated that his subsequent post-trial motions stood on their own allegations as if his premature August 28 new-trial motion had never existed. As a consequence, McIntosh contended his motions for new trial were timely filed, and they thereby extended his appeal time thirty days from the time his new trial motions were denied by the trial court after a hearing on September 25, 1998. See Ark. R. App. P. — Crim. 2(a)(2) (1998); see also Ark. R. Crim. P. 33.3 (1998). In sum, McIntosh asserted that his appeal time ended on October 26, 1998, so his notice of appeal filed on October 22, 1998, was timely. After considering the State’s motion to dismiss and McIntosh’s response, the court of appeals denied the State’s request without an opinion; however, instead of going forward on the merits in the case, it certified this case to us, asking us to clarify the foregoing issues and confirm whether McIntosh’s notice of appeal was timely, and whether an appellate court has jurisdiction to decide the case on its merits. We accepted certification of the case.
In addressing the procedural matters set out above, the State, citing Davies v. State, 64 Ark. App. 12, 16, 977 S.W.2d 900, 903 (1998), restates its earlier position that when a motion for new trial is filed prior to entry of judgment, it is untimely. It also contends that the fact that supplements or amendments relating back to the original untimely motion have been added after the entry of judgment does not serve to make the original motion timely. Relying on Hicks v. State, 324 Ark. 450, 921 S.W.2d 604 (1996), the State further submits that, when a motion for new trial is untimely, a notice of appeal must be filed within thirty days of the entry of judgment, or it, too, will be untimely.
The Hicks case is significantly distinguishable from the case now before us. There, the defendant Hicks was found guilty, and he filed a motion for new trial, setting out three grounds why his motion should be granted. However, this motion was filed three days prior to the entry of his conviction judgments. Six days after his judgment was filed, Hicks filed what he labeled as an amendment to his earlier motion for new trial, but the amended motion contained two new grounds without mentioning his earlier ones.
In the instant case, McIntosh engaged new counsel who timely filed two new motions wherein he repeated the same grounds contained in his prejudgment motion; he merely added affidavits to support the same and only claims he ever asserted as grounds for a new trial. As McIntosh contends on appeal, while his earlier August 28 new-trial motion may have been void and ineffective, his post-conviction, motions for new trial fully asserted the same and only grounds he wished to have the trial court consider and decide. When the trial court heard and denied McIntosh’s motions on September 25, 1998, McIntosh had thirty additional days from the trial court’s order of denial to file his notice of appeal; he did so on October 22, 1998. See Ark. R. Crim. P. 33.3 and Ark. R. App. P. — Crim. 2(a)(2). We hold McIntosh’s statement of the law is correct, and therefore we rule McIntosh has timely filed his appeal. We now turn to the merits of the three points he offers for reversal.
McIntosh first argues the jury panel was tainted as a result of a biased remark made by a panel member, Hannah Dozier, during voir dire. When asked if the panel member knew defense witnesses Kesha Miller or Robert McIntosh, Dozier volunteered that if the Robert McIntosh was known as “Say,” she was already biased against him. The trial court excused Dozier from further service. The trial court asked if anyone else knew of Robert McIntosh, and two other panel members said that they might know him. The judge asked if that would make a difference believing or disbelieving the witness’s testimony. One of the two panel members, Janaytha Perry, said, “No, sir,” at which point Tommy McIntosh’s counsel added, “To make sure that they understand, this [witness] is Robert McIntosh, Jr. . . . and not ‘Say’ McIntosh, Sr.” Both Perry and the other inquiring member, Marilyn Jones, indicated they understood. The trial court then allowed the two witnesses to be sworn, and the State and defense counsel selected twelve jurors. After the jurors were selected, defense counsel asked for a mistrial, stating Dozier’s earlier remarks had biased the jury panel against the defendant. The trial court disagreed, and denied the request, stating, “The way the record appears now, it appears that it’s been cleared up that they’re [Robert McIntosh, Jr. and Robert ‘Say’ McIntosh, Sr.] not the same person.” The trial court was correct in its ruling.
Trial judges are granted wide latitude of discretion in granting or denying a motion for mistrial, and we will not reverse the trial court’s decision absent an abuse of that discretion or manifest prejudice to the complaining party. Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997). The rule is also settled that a jury is presumed to be unbiased and qualified to serve, and the burden is on the appellant to show otherwise. Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996). Here, appellant McIntosh failed to show Dozier’s comments had in anyway prejudiced the remaining jury panel, and, in fact, defense counsel clarified any existing misunderstanding that the witness who was to testify was not Robert “Say” McIntosh. Again, it was “Say” McIntosh against whom Dozier had expressed a bias. Thus, we cannot say that the trial court abused its discretion in denying the motion for mistrial.
In his second point, McIntosh contends the trial court erred in denying his mistrial motion when the prosecutor made remarks during opening argument that McIntosh claims violated his Fifth Amendment right not to be compelled to testify against himself. McIntosh’s felony charges resulted from a shooting incident that took place from a second-story balcony of an apartment rented by McIntosh’s girlfriend, Kesha Miller. In opening remarks, the deputy prosecutor stated the following:
They [the victims] both look up, up to the balcony to the second floor, and they see this Defendant with a handgun pointing down onto the ground, but looking straight ahead talking to someone else. And then they’re going to testify there are two to three more shots from this handgun. They watch, and they hear the sounds again. They hear the gunshots. They see the bullets hitting the dirt, and the dirt flying up. They see sparks from one of the bullets hitting a rock. They can feel the vibrations of the bullets in the ground, and they also, they feel a little afraid.
He [the witness] also looks up, and he sees this Defendant standing on the balcony, having a handgun, pointing it down, and he had, shoots two three times. He sees the dirt flying. He hears gunshots. Perhaps the only person there that did not see the gunshots, did not feel any fear at all about what was going on is the Defendant himself, because he wasn’t looking where he was shooting. He wasn’t standing on the ground. He wasn’t feeling the vibrations. (Emphasis added.)
McIntosh’s counsel objected to the prosecutor’s remarks on Fifth Amendment grounds, contending that McIntosh was the only person who could refute the remarks. He also submitted that the prosecutor’s comments were not within the proper scope of opening statement because the comments ventured into speaking of sights, feelings, and emotions of McIntosh. Such arguments have no merit. In making his opening argument, the prosecutor knew the State had three witnesses (the two victims and a third witness) who would identify Tommy McIntosh as the person they saw on the second-story balcony, firing a gun while not looking in the direction that he was pointing the gun. Obviously, the State’s witnesses could fairly testify that, because they saw him shooting his gun from the balcony, Tommy McIntosh did not feel the vibrations on the ground, nor did he feel any fear about what was going on. The prosecutor’s opening remarks were fair inferences from the evidence he intended to, and did, present at trial. Accordingly, McIntosh’s Fifth Amendment right was not violated in these circumstances.
In his final argument, McIntosh asserts that the trial court erred in denying his request for new trial because extraneous information was brought to the jury’s attention during the deliberations, and undue influence was improperly brought to bear upon a juror. In support of Mcintosh’s motion, his aunt, Leanna Godley, averred that two jurors told her that, “if they did not vote for McIntosh’s conviction, they would be penalized.” Godley also stated that two jurors said that, during deliberations, some other jurors related McIntosh had been previously convicted of drug charges and sentenced, but had been released early. In addition, McIntosh offered testimony of a juror, Tamara Townsend, who asserted she felt threatened by another juror (Dr. Joseph Kueter), and if she had not felt like she would have been “penalized,” she would have voted not guilty. The trial judge called Dr. Kueter as a witness and the doctor denied making such threats, nor did he recall hearing any threats. Townsend further claimed that McIntosh’s earlier conviction was discussed and McIntosh should be given a stronger sentence because he “knows how to beat the system.”
McIntosh’s arguments bearing on juror misconduct are meritless. Regarding juror Townsend’s charge that alleged threats had been made during deliberations that caused her to fear voting in McIntosh’s favor, our law is clear that such juror testimony is impermissible. Rule 606(b) controls and reads as follows:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations to the effect of anything upon his or any other juror’s mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. (Emphasis added.)
See also Fulmer v. State, 337 Ark. 177, 987 S.W.2d 700 (1999); Tosh v. State, 278 Ark. 377, 646 S.W.2d 6 (1983).
Concerning McIntosh’s final allegation that juror misconduct resulted from the jurors’ discussion of McIntosh’s earlier drug conviction and commutation of his sentence for same, we fail to see the error or any ensuing prejudice. McIntosh was tried as a habitual offender, thus, his prior conviction and sentence were before the jury. From the testimony taken at trial, it was obvious to the jury that McIntosh was not serving time when the present felony charges were filed, although he earlier had been awarded a fifty-year sentence. The decision whether to grant a new trial is left to the sound discretion of the trial court, and it is not reversed in the absence of an abuse of discretion or manifest prejudice to the complaining party. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985). No such abuse of discretion or manifest prejudice was demonstrated in the instant case.
For the reasons set out above, we affirm.
THORNTON, J., not participating.
While it is not argued, another reason H/cfesdiffers from the McIntosh case is that Rule 33.3 of the Rules of Criminal Procedure and Ark. R. App. P. — Crim. 2(a)(2) and (3)(b) were not in effect when the new-trial motions and notice of appeal were filed in Hicks. Then, Rule 36.22 contained the same language Rule 33.3 later adopted, but in 1995 when Hicks was tried, our criminal procedure and appellate rules did not encompass the “deemed denied” language our Criminal Appellate Rule 2(a) and (3) does now. However, even if it had, the trial court failed to rule on Hicks’s amended new-trial motion of December 20, 1995, and the amended motion would have been denied on January 19, 1996, the same day Hicks filed his notice of appeal. In other words, Hicks’s notice of appeal was a day early.
Jurors Dr. Kueter and Kessmidge Daniels denied hearing (or making) any threats, although Daniels recalled hearing McIntosh had “tricked the system to get [out], so he needed to serve a longer term.” | [
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LAVENSKI R. SMITH, Justice.
Appellant, Ross Explorations, Inc. (“Ross”), seeks reversal of a declaratory judgment obtained by Appellee, Freedom Energy, Inc. (“Freedom”). Following a hearing, the Sebastian County Chancery Court declared that Freedom possessed the lease rights to natural gas produced from the Dill “A” #1 gas well. The trial court found that the Ross leases expired due to the well failing to produce gas in commercial paying quantities. The court further found that later leases which Freedom acquired from the lessors entitled Freedom to the gas subsequently produced after the termination. Ross alleges that the trial court committed three errors. First, Ross contends that the trial court erred in finding that the well’s lifting costs exceeded its revenue. Second, Ross contends that the trial court erred in its choice of the time period for determining if production was adequate. Third, Ross, contends that the trial court erred in failing to make a finding with respect to the “reasonably prudent operator” rule. Our juris diction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(1). We find no reversible error and affirm.
Standard of Review
We review chancery cases de novo on the record, but we will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Slaton v. Slaton, 336 Ark. 211, 983 S.W.2d 951 (1999). 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. Saforo & Assocs., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999);RAD-Razorback Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986). Crawford & Lewis v. Boatman’s Trust Company, 338 Ark. 679, 1 S.W.3d 417 (1999).
Facts
In 1985, TXO Production Company (“TXO”) drilled a gas well in Sebastian County known as the Dill “A” #1 Well. TXO did so pursuant to leases it had acquired from the land owners in previous years. TXO shared lessee rights with Tiros Exploration Company (“Tiros”) and Ross Explorations, Inc. TXO controlled 98.5% of the lessee rights while Tiros and Ross controlled the remaining 1.5% of the rights. The habendum clauses of each of the leases granted lease rights for a fixed term of years as well as for some indefinite additional period if the lessee maintained production. The leases contained a number of specific variations in their habendum clauses. However, the parties tried the case, and the trial court ruled on the apparently stipulated premise that each lease required that the lessee produce gas in “commercial paying quantities” in order to preserve lease rights beyond the term of years stated in the lease. The parties did stipulate that the term of years in all the leases had expired. At some point, Sonat Exploration Company (“Sonat”) became successor to TXO’s lease rights and operated the well until the spring of 1996. In the spring of 1996, according to Sonat internal company memoranda introduced at trial by Freedom, Sonat intended to cease all production from the well and abandon it. Sonat engineer B.M. Hickman recommended the well be plugged and abandoned due to low production and the well being “uneconomic in its current completion.” Sonat records indicate that the well produced at a rate of less than 10 MCF/D at that time. Sonat ceased all production from the well on April 30, 1996, when it “shut-in” the well. Sonat estimated it would cost $12,500 to plug and abandon the well. Also on April 30, Appellant Ross offered to purchase Sonat’s interest in the Dill “A” #1 well for $1,000.00 in lieu of plugging the well. Sonat did agree at some point to sell its interest to Ross; however, Sonat did not assign its rights to Ross until August 16, 1996. Hence, no production occurred at the subject well from April 30, 1996, until September 1996 when Ross reopened the well. In May 1996, Freedom obtained “Options to Purchase Oil and Gas Leases” from the lessors of the Dill “A” #1 Well. These contracts entitled Freedom to purchase lease rights previously held by Sonat should the Sonat leases terminate for any reason.
The central conflict of this case is who controls the lease rights to the Dill “A” #1 well. Freedom alleged and proved to the satisfaction of the trial court that Sonat’s lease interests terminated at some point prior to Sonat’s assignment to Ross. Ross, on the other hand, contends that Sonat’s lease rights remained in full force and effect when it acquired them via the August 16, 1996, assignment. The parties agree that the principal issue that resolves the dispute is whether or not the subject well ever ceased to produce in “commercial paying quantities” before Ross acquired its assignment from Sonat.
In reaching its conclusion that the subject leases had indeed expired, the trial court made forty specific findings of fact. The court relied upon documentary evidence from Sonat’s files, including various company records, internal memoranda, and accounting data. The court also based its findings upon expert testimony offered by the parties, and trial exhibits produced by the parties. In particular, the trial court placed substantial weight upon Sonat engineer B.M. Hickman’s memoranda and also upon the memorandum of Sonat geophysicist Quentin Danser. Danser’s handwritten note indicated his opinion in March 1996 that the leases had probably already lapsed due to low production. The trial court evaluated the extensive accounting testimony put forth principally by Freedom and cross-examined by Ross. The court found Freedom’s evidence based upon Sonat’s records that the well’s production had steadily declined over a course of years to be credible. More specifi cally, the trial court found that for a period of twenty-four months prior to the April 30, 1996 shut-in that the well operated at a net loss. The parties provided the court with four charts comparing revenue of the well to expenses of operating the well. In its decision, the trial court used Appellant Ross’s chart, which the court deemed most favorable to Ross. During the relevant period, the trial court found that there were eight months of profit totaling $1,283.00, and sixteen months of loss totaling $1,890.00. Combining these two figures left a loss of $607.00 over the twenty-four-month period. The trial court concluded that Sonat’s rights under its lease terminated prior to transfer to Ross and that Freedom’s new leases gave Freedom rights to the gas.
On appeal, Ross asserts that the chancellor erred (1) by finding that costs exceeded revenue, (2) by using a twenty-four-month period, and (3) by failing to make a ruling on the application of the “reasonably prudent operator rule.”
Production in Paying Quantities
At the trial of this matter, Freedom bore the burden of showing that the earlier leases terminated due to lack of production. Perry v. Nicor Exploration, 293 Ark. 417, 738 S.W. 2d 414 (1987). In other words, Freedom had to show the well ceased to produce in commercial paying quantities. Ross asserts Freedom failed to do this because the figures introduced into evidence by Freedom impermissibly included overhead as a cost, and therefore when subtracted from revenues produced by the well failed to show the actual production of the well under the habendum clause. Ross asserts the trial court erred in adding in costs that were not lifting costs, although they might be direct costs of operation.
In Turner v. Reynolds Metal, Co., 290 Ark. 481, 721 S.W.2d 626 (1986), we considered whether a gas lease should be canceled due to “failure to produce in paying quantities.” Turner, supra, at 482. We stated, “A provision in a habendum clause of an oil and gas lease requiring production, as in this lease, means production in paying quantities.” Turner, supra, at 483. In McLeon v. Wells, 207 Ark. 303, 180 S.W.2d 325 (1944), we held the phrase, “and as long thereafter as oil or gas, or either of them, is produced from said lands by lessee,” meant “production in commercial quantities....” McLeon, supra, at 305. Commercial or paying quantities, we have said, is determined by what is profitable to the lessee. Turner, supra, at 483.
Ross, based upon dicta contained in Perry, asserts this court has adopted a “lifting costs” test. The sentence Ross relies on states, “Cross-examination, however, revealed that he did not know if some of the expenses used in his calculations were directly related to lifting.” Perry, supra, at 421. Ross also cites Mason v. Ladd Petroleum Corp., 630 P.2d 1283 (Okla. 1981), as support, wherein the Oklahoma Supreme Court stated, “Only those expenses which are directly related to lifting or producing operations can be offset against production proceeds to determine whether a well is a producer.”
We have not expressly adopted this test nor have we explicitly decided what is meant by costs directly related to lifting. Other jurisdictions have dealt with this question. The Oklahoma Supreme Court in Stewart v. Amerada Hess Corp, 604 P.2d 854 (1979), defined “lifting expenses” as “Expenses necessary to lift the oil from the ground.” The Oklahoma Supreme Court also stated, “The term ‘lifting costs’ relates to a portion of the cost of producing oil and gas exclusive of drilling and equipping costs — the term defies a more precise definition.” Hinniger v. Kaiser, 738 P.2d 137 (1987). The Supreme Court of Kansas seems to be in agreement that costs of drilling and equipping the well are excluded. Texaco, Inc. v. Fox, 228 Kan. 589, 618 P.2d 844 (1980). This is also true in Texas. See Evans v. Gulf Oil Corp., 840 S.W.2d 500 (1992). In Reese Enterprises, Inc. v. Lawson, 220 Kan. 300, 553 P.2d 885 (1976), the Kansas Supreme Court stated, “Expenses which are taken into account in determining ‘paying quantities,’ include current costs of operation in producing and marketing the oil or gas.”
The crucial issue, then, is whether the well, when appropriate expenses are deducted, turns a profit, however small. Costs of drilling and equipping the well are excluded, because they are not costs of operation of the well. In Kansas, marketing is a cost of operation, and apparently is often added in because without it there is no production. Reese Enterprises, Inc., supra. Depreciation has been included as a cost of operation by some courts, but the “better view” is to exclude it as associated with the equipping of the well. Williams & Meyers, Oil and Gas Law § 604.6(b). Overhead is excluded by some courts as a cost. We agree with the view that what ought to be considered are “direct expenses attributable to the operation of the lease.” Reese Enterprises, Inc., supra.
The trial court examined the accounting data put forth by the parties. He then relied upon the chart prepared by Ross using figures from Sonat’s joint-interest billing statements. According to Ross’s president, Tim Smith, the chart employed the cost figures furnished by Sonat less the following items that Ross contended should not be counted as direct operating costs: (1) administrative overhead; (2) “other”; (3) equipment rentals other than compressors; (4) environmental safety; (5) meals; (6) communication; (7) miscellaneous; (8) entertainment; and (9) allocated costs. The remaining costs included in Ross’s chart are: Pumping labor; field labor; auto/truck; road/location; chemical treating; taxes; salt water disposal; product/equipment services; well services; services for leased eqipment; other and indirect services; and materials and supplies. These expenses are in accord with those set out by the Kansas Supreme Court in Reese, supra. Based upon Ross’s figures, the trial court found that for the twenty-four-month period preceding April 30, 1996, the well was operated at a net loss. Consequently, it did not produce in commercial paying quantities and the leases terminated under their own terms.
Appellant has not shown that the trial court considered improper costs in deciding the well’s lack of profitability. Ross asserts the Joint Interest in Billing Statements and the Profit and Loss Statements do not provide information from which one can determine the “lifting” or “direct” costs of production. Ross asserts the categories listed on the statements did not provide information about what exactly was included. Ross also asserts that their Exhibit N-10 was misunderstood by the trial court as representing what Ross believed the lifting/direct costs to be, when it was actually only a statement created with the categories removed that were clearly inapplicable as overhead, but the remaining categories are still unreliable because without actual invoices, it is impossible to determine the accuracy of what was charged to the operation of the well.
The trial court found that “Sonat maintains a computerized accounting system. Each Sonat operated well is assigned a property number. Revenues and expenses are then coded with the property number of well to which they pertain as they are entered into the accounting system’s computer.” The trial court also noted that the accounting information is used to bill non-operating lease holders and to generate the profit and loss statements.
The evidence of costs came in by expert and lay testimony. The judge has broad discretion in admitting expert testimony. Scott v. State, 318 Ark. 747, 888 S.W.2d 628 (1994). And, as to credibility, “We have held many times that this Court will defer to the trial court’s evaluation of the credibility of the witnesses.” Saforo & Assoc. Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999)(quoting Crawford v. Dep’t of Human Services, 330 Ark. 152, 951 S.W.2d 310 (1997). The costs considered appear to be those reasonably associated with producing gas from the well. We hold, therefore, that the chancellor did not clearly err.
Period of Time in Calculation of Operating Costs
Ross asserts that the trial court used too short a period of time for determining profitability. Ross also argues that periods after assignment of the lease to Ross should have been considered. Other courts which have faced this issue clearly disfavor an inflexible period in all cases. Instead, the determinations depend upon the facts of the particular case and the specific reasons production waned or ended. The trial court used Ross’s Exhibit N-10, which covered the twenty-four months prior to Sonat’s shut-in of the well on April 30, 1996. Under the facts of the instant case, we hold that period of time to have been reasonable.
In Fisher v. Grace Petroleum, Inc., 830 P.2d 1380 (Okla. Ct. App. 1992), the Oklahoma Court of Appeals dealt with a habendum clause that provided “as long as gas is or can be produced.” In discussing the proper period for determining profitability, the Court stated, “The appropriate period for determining profitability is a time appropriate under all the facts and circumstances of each case.” The court then cited Kuntz, The Law of Oil and Gas, § 26.7 (1990), which states:
The better rule precludes the use of a rigid fixed term for determination of profitability and uses a reasonable time depending upon the circumstances of each case, taking into consideration sufficient time to reflect the current production status of the lease and thus to provide the information with which a prudent operator would take into account in whether to continue or abandon operation.
The Fisher court found a thirteen-month time period to be adequate.
It also cannot be ignored that Ross’s predecessor in interest voluntarily ceased all production on April 30, 1996, due to the well’s low production and it being “uneconomic.” Voluntary cessation is a factor that some courts consider in determining whether a lease has been terminated. Hunter v. Clarkson, 428 P.2d 210 (Okla. 1967). At the time Ross acquired the rights, if any, that Sonat had, the well was “shut-in” for lack of production. It had a tag on it that indicated temporary abandonment. A handwritten memo dated March 14, 1996, noted “looks like the leases are probably gone anyway, with only 10MCF/D production.” Under the facts presented here, we find no error in the trial court’s use of the twenty-four-month period immediately preceding the well’s shut-in by Sonat. Nor are we persuaded by appellant that the court should have considered production data for the well after Ross resumed production in September 1996. If the leases terminated at any time prior to that time, under their own terms subsequent production would be irrelevant.
Reasonably Prudent Operator Rule
Ross asserts that the trial court erred when it failed to rule on “whether a ‘reasonably prudent operator’ would have continued to operate the well, even assuming a loss in the two years prior to shut-in.” Failure to obtain a ruling from the trial court is a procedural bar to our consideration of the issue. We have held on many occasions that we will not address the merits of an argument where the appellant has failed to obtain a ruling from the trial court. Howard v. Northwest Arkansas Surgical Clinic P.A., 324 Ark. 375, 921 S.W.2d 596, (1996); Haase v. Starnes, 323 Ark. 263, 915 S.W.2d 675, 680 (1996); Vanderpool v. Fidelity & Cas. Ins. Co., 327 Ark. 407, 939 S.W.2d 280 (1997). It is well settled that this Court will not address an argument where the abstract does not show that it was made in the trial court, Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998), and ruled upon there. Sanders v. Bradley County Human Servs. Public Facility Bd., 330 Ark. 675, 956 S.W.2d 187 (1997); see also Skokos v. Skokos, 332 Ark. 520, 968 S.W.2d 26 (1998); Myrick v. Myrick, 339 Ark.l, 2 S.W.3d 60 (1999). Viewing the current landscape of oil and gas law, it may well be advisable and appropriate for this court to adopt the prudent-operator rule. However, we will only do so when the matter is properly before us. It is incumbent upon the appealing party to obtain a ruling on an issue in order to preserve it for our review. Fisher v. Valco Farms, 328 Ark. 741, 945 S.W.2d 369 (1997); Farm Bureau P.H. v. Fm. Bureau Mut. Ins. Co., 335 Ark. 285, 984 S.W.2d 6 (1998). Since there was no ruling below, we will not decide the matter here.
Affirmed.
See also, 3 Williams & Meyers, Oil and Gas Law § 604.6(a) (1986) (stating that “the term ’paying quantities’ has generally been defined as such production as will enable the lessee to realize a profit from the sale of oil, gas or other minerals after the marketing expenses and the current cost of operation are deducted”).
See also Texaco, Inc. v. Fox, 618 P.2d 844 (Kan. 1980).
In the Reese case from Kansas, eighteen months was considered an appropriate time period given its facts but the court clearly believed the period could be more or less given other facts. | [
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PER CURIAM.
On June 30, 1998, Christina Riggs was convicted in Pulaski County Circuit Court of capital murder and was sentenced to death by lethal injection. On November 4, 1999, this court affirmed her conviction. Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999).
On December 20, 1999, a hearing was held in Pulaski County Circuit Court pursuant to Ark. R. Crim. P. 37.5. At that hearing, Riggs was represented by her counsel, John Wesley Hall. The circuit court declared Riggs to be indigent and advised her of her right to have counsel appointed for her. Riggs informed the circuit court that she wished to waive appointment of counsel. The circuit court then ordered that a competency examination of Riggs be performed to determine her ability to waive counsel. A second hearing on Riggs’s competency was scheduled for January 14, 2000.
Biggs was evaluated by O. Wendell Hall, III, M.D., Forensic Medical Examiner, and by John K. Anderson, Ph.D., Forensic Staff Psychologist, of the Arkansas State Hospital. On January 7, 2000, they issued their report to the circuit court in which they concluded that Riggs was competent to waive her Rule 37.5 remedies.
On January 14, 2000, a hearing was held before the circuit court on Riggs’s competency to effect a waiver of her Rule 37.5 remedies. At that hearing, Dr. Hall and Riggs testified. Dr. Hall testified that Riggs had the capacity to knowingly and intelligently waive her postconviction remedies, and Riggs stated that that was her desire. Riggs testified specifically that she had read Rule 37.5 and did not want an attorney appointed to pursue her rights under that rule.
On January 21, 2000, the circuit court entered its order based on Dr. Hall’s examination of Riggs and his conclusion. The court found:
1. The defendant has been fully advised of her rights to seek post-conviction relief with the assistance of court-appointed counsel, at no cost to her.
2. The defendant has knowingly, intelligently, and voluntarily waived her right to appointed counsel in open court.
3. The defendant has rejected the appointment of counsel, and fully and completely understands the legal consequences of her decision.
The circuit court concluded that it would not appoint counsel to represent Riggs for the purpose of pursuing her Rule 37.5 remedies.
The State now petitions this court for a writ of certiorari for the purpose of accepting the record filed herein and for the further purpose of affirming the trial court’s findings. We grant the petition for writ of certiorari and hold that the trial court’s findings are supported by the transcript of the hearing held on January 14, 2000, and the record in this matter. We affirm the circuit court’s findings, as set out above.
Riggs further moves this court to issue its mandate forthwith and to expedite this motion. According to her motion, Riggs desires her execution “to move along and not be unnecessarily delayed,” and she further desires that intervenors not interfere “with her personal decision in this case.” Her motion is denied. | [
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LAVENSKI R. SMITH, Justice.
Petitioner, Ron Oliver, along with Interveners, Arkansas Professional Bail Bond Company (“Arkansas Professional”) and the Professional Bail Bondsman Licensing Board (“the Board”), seek a Writ of Prohibition against the Pulaski County Circuit Court. Oliver contends that the court exceeded its authority in issuing several subpoenas duces tecum after having remanded the matter to the Board for additional evidentiary development. Intervener Jamie Mann and his employer, Affordable Bail Bonds, Inc. (“Affordable”), contest the issuance of the writ. We have jurisdiction of this case pursuant to Arkansas Supreme Court Rule 1-2 (a) (3). Petition denied.
Facts
This dispute arises out of an underlying disciplinary action before the Board. The Baxter County Sheriff filed a complaint in 1997 against Affordable and Mann. The complaint alleged that they had violated several provisions of the Bail Bondsman Licensing laws, codified at Ark. Code Ann. § 17-19-101 et. seq., as well as the rules and regulations promulgated by the Board regulating the profession. The Board held a hearing on October 24, 1997. On November 12, 1997, the Board issued its decision finding that Mann and Affordable had indeed violated several provisions of the Bail Bondsman Licensing statutes. The Board suspended Mann’s license for a total of eight months for violations in two separate incidents in which Mann participated. The Board also fined Affordable $2,500 and suspended the company’s operating license for sixty days for one of the incidents.
Pursuant to Ark. Code Ann. § 17-19-209(g) (Supp. 1997), Mann and Affordable appealed to the Pulaski County Circuit Court for a de novo review of the Board’s decision. Before the circuit court could hear the matter, the Arkansas Legislature enacted Act 1477 of 1999. This Act, codified at Ark. Code Ann. § 17-19-209(g), eliminated the right for a de novo review in the circuit court of the Board’s decisions. Instead, the legislature required that all appeals from the Board be reviewed pursuant to the Arkansas Administrative Procedures Act (“APA”), codified at Ark. Code Ann. § 25-15-101 et seq. Based upon this change in the law, the Board argued to the circuit court that the circuit court was bound by the record from the underlying Board hearing. They contended the amendment to the law would apply immediately because the change was procedural rather than substantive in nature. Mann and Affordable objected, arguing that it would be prejudiced by retroactive application of the new law. They asserted that the existence of a de novo review by the circuit court influenced their trial strategy before the Board. Mann and Affordable argued that if the amended manner of review applied, they should be entitled to a remand to develop the record thoroughly before the Board prior to appellate review. In addition, Mann and Affordable argued that evidence of bias of one of the Board members had not been developed before the Board. On September 15, 1999, the circuit court in an agreed order found that the amended manner of review would apply to the case in accordance with the APA. However, the court then remanded the case to the Board for further proceedings to permit Mann and Affordable to develop the factual record. In doing so, the circuit court analogized Mann’s and Affordable’s argument to an application to present additional evidence pursuant to Ark. Code Ann. § 25-15-212(f), which allows the circuit court to order the Board to take additional evidence and modify its decision accordingly. The circuit court ordered that the case be remanded “for proceedings consistent with” Ark. Code Ann. § 25-15-212(f).
Following the remand order, Mann and Affordable apparently suspected a potential conflict with one of the Board members hearing the case. Mann and Affordable believed that the Board member, Charles Pearson, had been an owner or stockholder at Oliver’s company, First Arkansas Bail Bonds (“First Arkansas”). First Arkansas was Affordable’s only local competition. As such, Mann and Affordable wished to take Oliver’s deposition to develop this information prior to the Board hearing on remand. They intended to show that Pearson held a pecuniary interest in voting for Mann’s and Affordable’s suspension. To compel this deposition, Mann and Affordable sought and received an order from the circuit court to depose Oliver. The circuit court issued a subpoena duces tecum on September 23, 1999, eight days after the circuit court remanded the matter to the Board for a new hearing. Mann filed notice of the Oliver deposition with the Pulaski County Circuit Clerk on January 10, 2000. Oliver moved to quash the deposition, and the circuit court denied the motion. Oliver filed his petition for writ of prohibition in this court on January 11, 2000. Oliver also filed an Application for Temporary Relief to stay all further action relating to the deposition pending a decision on his prohibition petition. In a per curiam decision delivered on January 20, 2000, this court requested that the parties brief the issues. We stayed Oliver’s deposition pending the outcome of the matter, and also allowed Mann and Affordable, as well as Arkansas Professional and the Board, to intervene in the appeal.
Standard of Review
While Oliver filed this matter as a petition for writ of prohibition, it is apparent that the petitioner is actually seeking a writ of certiorari. The remedy Oliver seeks in quashing the subpoena is directed towards an action already taken by the circuit court as opposed to some prospective action. A writ of prohibition will not lie for actions already taken. We recently listed the requirements for a writ of prohibition in Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000), where we stated:
A writ of prohibition is extraordinary relief which is appropriate only when the trial court is wholly without jurisdiction. Henderson Specialties, Inc. v. Boone County Circuit Court, 334 Ark. Ill, 971 S.W.2d 234 (1998); Nucor Holding Co. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). The writ is appropriate only when there is no other remedy, such as an appeal, available. Henderson Specialties, Inc. v. Boone County Circuit Court, supra; West Memphis Sch. Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994) (quoting National Sec. Fire & Cas. Co. v. Poskey, 309 Ark. 206, 828 S.W.2d 836 (1992)). When deciding whether prohibition will he, we confine our review to the pleadings in the case. The Wise Company, Inc. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6 (1993); State v. Circuit Court of Lincoln County, 336 Ark. 122, 125, 984 S.W.2d 412, 414 (1999). We have further held that we do not issue a writ of prohibition for something that has already been done. Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam).
The writ of certiorari, unlike prohibition, can address actions already taken by the lower court. We stated our approach to this issue in the recent case of Arkansas Public Defender Comm. v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000). There we pointed out that when circumstances warrant, we will treat a petition for writ of prohibition as though it were correctly filed as a petition for writ of certiorari. We stated:
We hold that although the Commission has sought a writ of prohibition, a writ of certiorari is the more appropriate remedy. A writ of prohibition cannot be invoked to correct an order already entered, and where, as here, the lower court’s order has been entered without or in excess of jurisdiction, we carve through the technicalities and treat the application as one for certiorari. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id.
Burnett, 340 Ark. at 236.
In sum, we will grant a writ of certiorari only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cooper Communities, Inc. v. Benton County Circuit Court, 336 Ark. 136, 984 S.W.2d 429 (1999). It is not to be used to look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of facts, or to reverse a trial court’s discretionary authority. Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992).
The Trial Court’s Jurisdiction
On appeal, Oliver contends that the circuit court lacked jurisdiction to subpoena him and his records for a deposition once that court remanded the matter to an administrative board. Oliver argues that an appellate court loses jurisdiction after issuance of its mandate or after remand. As such, the Board, not the circuit court, has the authority to issue subpoenas when it has the case. Interveners Arkansas Professional and the Board support this argument, and also contend that jurisdiction cannot lie in two tribunals at the same time. These interveners also argue that the Board has the power to issue subpoenas, and Mann and Affordable could have conducted discovery under jurisdiction of the Board prior to the hearing on remand. To the contrary, Mann and Affordable argue that a writ of prohibition is not the appropriate remedy here because the proof sought from Oliver in his deposition has to do with a procedural matter over which the circuit court maintains jurisdiction. Mann and Affordable argue that the type of remand contemplated in Ark. Code Ann. § 25-15-212(f) allows the circuit court to retain jurisdiction over the matter while the Board hears additional evidence and modifies its decision if necessary. Mann and Affordable further argue that Ark. Code Ann. § 25-15-212(g) allows the circuit court to retain jurisdiction when alleged procedural irregularities exist before the agency.
Oliver argues that the circuit court in the administrative-appeals process is analogous to an appellate court. Hence, just as an appellate court’s jurisdiction ends with the issuance of a mandate or upon remand, so would the circuit court’s. See Cooper Communities, supra; First Pyramid Life Ins. Co. v. Stoltz, 312 Ark. 516, 849 S.W.2d 525 (1993); Brimson v. Brimson, 228 Ark. 562, 309 S.W.2d 29 (1958). This general rule would seem to support Oliver’s argument that once the circuit court remanded the case to the Board, it lost all jurisdiction to issue the subpoena duces tecum to Oliver, as then only the Board had the authority and power to issue the subpoena. However, the circuit court’s role as a reviewing court of administrative appeals is not the same as that of an appellate court. Mann and Affordable argue that Ark. Code Ann. § 25-15-212(1), the statutory section to which the circuit court referred in its remand order, actually allows the circuit court to retain jurisdiction. We agree. Ark. Code Ann. § 25-15-212(1) states:
(f) If before the date set for hearing, application is made to the court for leave to present additional evidence and the court finds that the evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon any conditions which may be just. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
It was under this section of the APA that the circuit court remanded the matter to the Board after the parties agreed that the circuit court no longer could conduct a de novo review of the Board’s original proceeding but instead must follow the APA requiring the circuit court to conduct an appellate review of the Board’s proceedings. Ark. Code Ann. § 25-15-212(f) contemplates a reservation of jurisdiction in the reviewing court in that it expressly requires that upon remand the agency “shall file that evidence and any modifications, new findings, or decisions with the reviewing court.” A remand ends a proceeding before an appellate court, and it has nothing further to do. Here, however, the circuit court remains a reviewing court and retains continuing jurisdiction over the appeal. After the board completes its action, the circuit court may then proceed with its consideration of the appeal on the merits. See Hickory Hills Limited Partnership, et. al., v. Secretary of State of Maryland, 84 Md.App. 677, 581 A.2d 834 (1990); See also, Rosecky v. Illinois Department of Public Aid, 147 Ill.App.3d 608, 511 N.E.2d 167 (1987). We also note that Ark. Code Ann. § 25-15-214 authorizes the Pulaski County Circuit Court to command agencies failing or refusing to act to the injury of any person or their property to do so where the agency acts unlawfully, unreasonably, or capriciously. This authority would seem to apply to any stage of the proceedings.
We hold that the petitioner has fallen short in establishing that there has been a plain, manifest, clear, and gross abuse of discretion without any other remedy such as appeal. Nor has petitioner shown that the circuit court is wholly without jurisdiction. On the record before us, we cannot say that the trial court exceeded its jurisdiction in issuing subpoenas to Oliver.
Petition denied without prejudice.
Glaze and Brown, JJ., concur.
Oliver v. Pulaski County Circuit Court, 340 Ark. 199, 8 S.W.3d 35 (2000).
We note that although the language in §214 mentions the chancery court that the case of Harber v. Rhodes, 248 Ark. 1188, 455 S.W.2d 926 (1970), declared the section unconstitutional as to the chancery court, but the remainder of the language would still be applicable to the circuit court. | [
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PER CURIAM.
In 1995, Lawrence Martin was found guilty of capital murder and sentenced to life imprisonment without parole. We affirmed. Martin v. State, 328 Ark. 420, 944 S.W.2d 512 (1997). The mandate of this court was issued on May 23, 1997. Martin subsequently filed in the trial court a timely petition pursuant to Criminal Procedure Rule 37 seeking to vacate the judgment. The petition was denied in 1998 and an amended order addressing one additional issue was entered in 1999 that also denied relief. The record on appeal from the amended order has been lodged here.
Appellant Martin, who is proceeding pro se, now seeks access to a copy of the record to prepare his brief and an extension of time to file it. As the appellant is required to abstract the record in an appeal, the motions are granted. Our clerk is directed to forward a copy of the record to appellant with the provision that the copy of the record be returned to this court after appellant has completed the brief. The appellant’s brief will be due forty days from the date of this opinion. Again, the record must be returned when the brief is filed.
Appellant has also filed three additional motions. In the first motion, he asks that this court issue an order compelling the warden at the Maximum Security Unit of the Arkansas Department of Correction where appellant is incarcerated to permit him additional time in the library to prepare the brief. The motion is denied. We decline to dictate the operation of the facility where appellant is imprisoned.
Appellant next asks that we compel the circuit court to provide a videotape of the medical examiner and a part of the jury-selection process so the material can be docketed here, presumably as a supplement to the record in this appeal. (It is not clear whether the request for a part of the jury selection process refers to a written transcript or a videotape.) As appellant does not establish that the material was a part of the record that was before the court when the ruling was made on the Rule 37 petition or otherwise demonstrate that the material is germane to this appeal, the motion is denied.
Finally, appellant requests that counsel be appointed to represent him in this appeal. Postconviction matters are civil in nature, and there is no absolute right to appointment of counsel in civil matters. See Virgin v. Lockhart, 288 Ark. 92, 702 S.W.2d 9 (1986). We have held, however, that if an appellant makes a substantial showing that he is entitled to relief in a postconviction appeal and that he cannot proceed without counsel, we will appoint counsel. See Howard v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989). Appellant here has not demonstrated that there is merit to the appeal.
Motions for access to record and for extension of time granted; motions to compel additional library time, to supplement record, and for appointment of counsel denied. | [
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TOM GLAZE, Justice.
Appellant Michael L. Allison is an attorney who represented Dottie (DuFresne) Moore in a change-in-custody proceeding which was initiated by Moore’s former husband, David DuFresne. On the date the custody case was set for hearing, Allison did not appear. The chancellor summarily held him in contempt and fined him for failing to obtain the court’s permission to withdraw as Moore’s counsel. Allison seeks reversal of the court’s ruling solely on the basis that, because the court’s action was in the nature of imposing criminal contempt, Allison was first entitled to notice and a show-cause hearing.
To reach Allison’s argument, we need to review the relevant events leading to his being held in contempt. On February 11, 1999, David DuFresne filed his action, seeking custody of his and Moore’s child. Moore engaged Allison as counsel to represent her. Allison filed a response on Moore’s behalf denying DuFresne’s allegations, and DuFresne’s attorney then obtained a June 16, 1999, trial setting. The abstract of record next reflects that, on June 11, 1999, Allison filed a motion to be relieved as Moore’s attorney, asserting he had not been paid a fee. Allison further alleged that, on April 7, 1999, he had notified Moore of the June 16, 1999, setting. He also averred that on June 9, 1999, he had attempted to serve Moore with a copy of his motion to be relieved as counsel. The postal service receipt showed Moore had received Allison’s motion on Monday, June 14, 1999. Moore apparently tried to engage other counsel, Allen Waters, on the evening of June 14, but Waters said that he could only agree to represent Moore if a continuance of the June 16 trial could be obtained.
On the day of the Wednesday, June 16 hearing, Moore appeared with Waters, who explained to the chancellor that he was only recently engaged, and would need a continuance if he was to enter an appearance and represent Moore. The chancellor asked of Allison’s whereabouts since he had not been relieved as Moore’s attorney. The chancellor said that she had talked to Allison and DuFresne’s counsel on June 11 and 14, and told them if they wanted a hearing on Allison’s motion to be relieved as counsel, they should set up a conference call. No such call was arranged. In view of these events and Allison’s failure to appear on June 16, the chancellor found Allison in contempt, fined him $250.00, and reported him to the Professional Conduct Committee.
It is setded law that an act is contemptuous if it interferes with the order of the court’s business or proceedings or reflects upon the court’s integrity. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 11 (1993). Our court has also made it clear that Rule 64(b) of the Arkansas Rules of Civil Procedure provides a lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pend ing. Dean v. Williams, 339 Ark. 439, 6 S.W.3d 89 (1999). Significantly, our court has further held that, in these attorney-withdrawal matters, the trial court must play an active role in determining whether the requirements of Rule 64(b) have been met. Id. This rule is aimed at protecting the client’s interests, and the trial court must look at a motion to withdraw from the point of view of the client, not the attorney. Id.
While it is clearly an attorney’s burden to comply with the established principles above, a trial court cannot summarily impose criminal contempt and penalties for violating those principles unless such contemptuous acts are committed in the immediate view and presence of the court. See Ark. Code Ann. § 16-10-108(c) (Repl. 1999). In other cases, the party charged shall be notified of the accusation and shall have a reasonable time to make his defense. Id. These statutory requirements are consistent with our case law where this court has held that criminal penalties may not be imposed on an alleged contemner who has not been afforded the protections that the constitution requires of criminal proceedings. Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988). The Fitzhugh court held the following: “The Due Process Clause, as applied in criminal proceedings, requires that an alleged contemner be notified that a charge of contempt is pending against him and be informed of the specific nature of that charge.” Id. at 140, 752 S.W.2d at 277. Before a person may be held in contempt for violating a court order, the order must be in definite terms as to the duties imposed, and the command must be express rather than implied. Arkansas Dept. of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998).
There are some jurisdictions which have held that, where counsel fails to appear when his case has been called, his absence has occurred “in the presence of the court” and constitutes a direct contempt. See 17 Am. Jur. 2d Contempt § 28 (1990); John E. Theuman, Annotation, Attorney’s Failure to Attend Court, or Tardi ness, as Contempt, 13 A.L.R. 4th 122, at § 9 (Supp. 1999). However, the greater weight of authority appears to hold that, although the absence of an attorney from a trial may constitute contempt, it occurs outside of presence of court and thus is indirect contempt which may not be summarily punished. Id., 13 A.L.R. 4th 122, at § 10. This overriding general principle is consistent with Arkansas’s statutory and case law on this subject as discussed above, which requires that the alleged contemner be informed of the specific nature of the trial court’s charge.
In fairness to the trial court here, it made an unsuccessful effort to contact attorney Allison by directing opposing counsel to find Allison to ask him to attend court, but these efforts by the court also show it was attempting to gather reasons why Allison had failed to show at the June 16 hearing — information the trial court could only acquire through holding a hearing. In this case, the chancellor apparently made no mention of Rule 64(b), nor did she order Allison to arrange a telephone conference or schedule a hearing regarding his motion to be relieved as Moore’s counsel. In this respect, we point out that our court has held counsel to be in direct contempt of court for his failure to appear as scheduled pursuant to a show-cause order. See Streett v. State, 331 Ark. 139, 959 S.W.2d 744 (1998). Here, however, there was no order, so the result is different.
In the instant case, Allison’s acts, or failures to act, cannot be said to have taken place in the immediate view and presence of the court. Allison suggests that, if given the notice and opportunity, he could have offered a meritorious defense that he was not in contempt. That, of course, is yet to be shown or decided, and nothing we have said should be taken to mean that there is no evidence to support a finding of contempt. We reverse only because this criminal contempt proceeding involved indirect contempt which requires that Allison be given a show-cause hearing. We must reverse and remand so the chancellor can afford him such a hearing.
Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefore to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel; (2) has delivered or stands ready to tender to the client all papers and property to which the client is entitled; and (3) has refunded any unearned fee or part of a fee paid in advance, or stands ready to tender such a refund upon being permitted to withdraw.
We are aware of the court of appeals’ case of Arkansas Department of Human Services v. Gruber, 39 Ark. App. 112, 839 S.W.2d 543 (1992), where DHS was held in contempt and assessed a fine when it failed to appear at a placement hearing in juvenile court. It appears there that the trial court found DHS summarily in contempt for failing to appear as ordered, but the court of appeals reversed because DHS was deprived of procedural due process because no notice of the contempt was given to DHS; the case was remanded so the chancellor could conduct a show-cause hearing. Thus, the court of appeals has held that, even though the alleged contemner was ordered to appear and did not, DHS was still entitled to a hearing before being found in contempt. We need not determine whether the Gruber decision is correct because here the trial court issued no order for Allison to appear, which is a fact that is significant when determining whether an attorney or party can be summarily punished for his or her absence. | [
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RAY THORNTON, Justice.
Appellant Brenda Lee Robinson Smith brings this appeal of the Jefferson County Circuit Court’s dismissal of her medical malpractice claim against appellee Dr. Erma S. Washington, for alleged medical negligence arising out of surgery performed on appellant while she was an inmate at the Arkansas Department of Correction. Because we have determined that the trial court erred in dismissing appellant’s complaint pursuant to the two-dismissal rule of Ark. R. Civ. P. 41(a), we reverse the grant of appellee’s Motion to Dismiss and return the action to the trial court for further proceedings consistent with this opinion.
Appellant filed a pro se complaint in federal court against appellee and the prison healthcare provider on March 12, 1993, alleging violations of the federal Civil Rights Act, 42 U.S.C. § 1983, arising from the total abdominal hysterectomy that appellee performed on appellant on June 10, 1992. Appellant alleged that her attempts to discuss her concerns with appellee had been fruitless and that she was given the “runaround” by prison officials when she complained about the uneven stitches and loss of feeling in her sagging abdomen following the surgery. Appellant sought damages for her physical and mental injuries as well as reconstructive surgery to be performed by an outside physician.
Counsel was appointed; by the federal district court to represent appellant in this action, but the merits were not reached because appellant and appellee filed a joint stipulation of dismissal of the action on January 3, 1995. The document was executed by both parties pursuant to Fed. R. Civ. P. 41(a)(1) and stipulated to a dismissal without prejudice. The federal court order dismissing appellant’s federal civil rights action was entered the same day.
Prior to the dismissal of her federal civil rights action, appellant had filed suit against appellee in Jefferson County Circuit Court, asserting a cause of action against the doctor for medical malpractice and failure to obtain informed consent to undergo the hysterectomy under state tort law. Specifically, appellant alleged that appellee negligently advised her that her pap smear indicated that she suffered from severe epithelial dysplasia which would develop into cancer unless she submitted to a total abdominal hysterectomy, a recommendation made notwithstanding appellant’s stated desire to have more children. A second allegation charged that appellee negligently performed the hysterectomy, producing unnecessary and unsightly permanent scarring on appellant’s abdomen. This complaint was filed on June 8, 1994. Although the parties conducted some discovery, this action was never set for trial. Instead, appellant filed a motion for voluntary nonsuit and an order of dismissal without prejudice was entered on June 21, 1996, dismissing appellant’s complaint.
Appellant timely filed a second cause of action mirroring the allegations of medical malpractice and failure to obtain informed consent contained in her first state court action. On August 13, 1997, appellee filed a motion to dismiss on the basis of the two- dismissal rule of Rule 41(a)(2) of the Arkansas Rules of Civil Procedure, contending that appellant’s federal civil rights action under § 1983 and her first state court action against appellee for medical negligence were actions based on the same claim for purposes of the two-dismissal rule, and that, as a result, appellee’s voluntary dismissal of her first state court action constituted an adjudication on the merits of her claim against appellee.
The trial court accepted appellee’s contention that appellant’s dismissal by stipulation of her federal court action coupled with her voluntary nonsuit of her first state court complaint triggered the two-dismissal rule, rendering her voluntary dismissal of her first state court action an adjudication on' the merits, and dismissed appellant’s complaint in her second state action with prejudice. Appellant brings this appeal of that decision, raising two points on appeal: that the stipulation of dismissal entered into by both parties in federal court did not constitute a dismissal by the plaintiff for purposes of the two-dismissal rule under Rule 41(a)(2); and, that appellant’s federal action against appellee for violations of her civil rights under § 1983 and her state cause of action for medical negligence were not actions based upon or including the same claim for purposes of the two-dismissal rule.
The first issue presented by this appeal is the question whether a stipulation of dismissal executed by both the plaintiff and the defendant in a federal lawsuit, pursuant to Fed. R. Civ. P. 41(a)(1)(h), should be treated as a dismissal by the plaintiff for purposes of applying the “adjudication on the merits” provision of the two-dismissal rule of Ark. R. Civ. P. 41(a)(2). The two-dismissal rule of Ark. R. Civ. P. 41(a)(2) provides that a voluntary dismissal under Rule 41(a)(1):
operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
Id. Here, the first dismissal stems from the parties’ filing of a “stipulation of dismissal signed by all the parties who have appeared in the action,” pursuant to Fed. R. Civ. P. 41(a)(1)(h), and our analysis turns to whether the stipulation of dismissal in federal court is a dismissal by the plaintiff for the purposes of triggering Arkansas’s two-dismissal rule.
We recognize that the basic purpose behind the Rules of Civil Procedure is “to administer justice through fair trials, not through summary dismissals as necessary as they may be on occasion.” Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966). The two-dismissal rule is generally considered to be in derogation of a plaintiff’s previously existing right to voluntarily dismiss an action and to initiate a new action based on the same cause of action. Kuhn v. Williamson, 122 F.R.D. 192 (E.D.N.C. 1988). The primary purpose of the two-dismissal rule is to prevent unreasonable use of the plaintiff’s unilateral rights to dismiss an action prior to the filing of the defendant’s responsive pleading, and it is an exception to the general principle that a voluntary dismissal of an action does not bar a new suit based upon the same claim. See e.g. Sutton Place Dev. Co. v. Abacus Mortgage Inv. Co., 826 F.2d 637 (7th Cir. 1987); Poloron Products, Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012 (2d. Cir. 1975). The two-dismissal rule was unique at the time it was first adopted, and its intention was to prevent delays and harassment by plaintiffs securing numerous dismissals without prejudice. 9 Wright and Miller, Federal Practice and Procedure Civ. § 2368 (2d. ed. 1995). But where the purpose behind the two-dismissal exception would not appear to be served by its literal application, and where that application’s effect would be to close the courthouse doors to an otherwise proper litigant, a court should be most careful not to construe or apply the exception too broadly. Poloron, supra.
Under the facts of this case, we are presented the question whether dismissal by stipulation is a voluntary or unilateral action by the plaintiff as required by our rule to trigger the two-dismissal rule. We find instructive the interpretations of federal courts regarding dismissals by stipulations in similar cases. Based upon the similarities of our rules with the Federal Rules of Civil Procedure, we consider the interpretation of these rules by federal courts to be of significant precedential value. Bussey v Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 (Ark.App. 1980).
The stipulation of dismissal filed with the federal court on January 3, 1995, read: “Pursuant to Rule 41(a)(1) of Federal Rules of Civil Procedure, the undersigned, being all parties who have appeared in this action, do hereby stipulate to the dismissal without prejudice of Plaintiff’s action against Defendant Dr. Erma S. Washington.” The filing is signed by the attorney for the plaintiff and counsel for the defendant.
In Poloron, supra, the Second Circuit Court of Appeals noted that, given the purpose of the two-dismissal rule, to prevent an unreasonable use of the plaintiff’s unilateral right to dismiss an action prior to the filing of the defendant’s responsive pleading, “the danger of such abuse diminished, however, where the first dismissal is by stipulation. A dismissal by stipulation is not a unilateral act on the part of the plaintiff but rather is a mutual agreement by all the parties ... The filing of a notice of dismissal preceded by a dismissal by stipulation knowingly consented to by all parties does not., activate the two-dismissal bar against bringing an action based on or including the same claim.” Id.
Similarly, in Kuhn, supra, the district court held that a stipulation of dismissal did not trigger the two-dismissal rule because the defendant could have declined to enter into the stipulation. Where the defendant has consented to the dismissal of the claim without prejudice, “it is inequitable to interpret the two-dismissal rule in a fashion that now bars their refiling.” Id.
Notwithstanding the interpretation given the federal rules by federal courts, appellee urges that Ark. R. Civ. P. 41 does not require the dismissal by the plaintiff to be unilateral. However, we note that our own previous interpretation of Arkansas’s Rule 41(a) is consistent with the federal courts’ rulings. In Carton v. Missouri Pac. R.R., 295 Ark. 126, 747 S.W.2d 93 (1988), we held that, in order for a second dismissal to work as an adjudication on the merits of a plaintiff’s claim, both dismissals must be on the motion of the plaintiff or Rule 41(a) is inapplicable. Notwithstanding appellee’s contention that appellant’s first dismissal need only be “voluntarily” entered into, and that her counsel’s signature on the stipulation of dismissal filed in the federal court action “was a matter of form and served in no way to make the appellant’s dismissal of the federal action anything other than ‘voluntary,’ ” we note that the Fed. R. Civ. P. 41(a)(1)(h) explicitly requires the signature of all parties who have appeared in the action in order to effect a dismissal by stipulation. See also Camacho v. Mancuso, 53 F.3d 48 (4th Cir. 1995) (court declined to accept a written stipulation of dismissal because it was not signed by both parties, because a stipulation is only valid if both parties sign a document or appear before the court to make an oral stipulation official).
In the circumstances before us, we note that appellant could not unilaterally effect a dismissal by stipulation under federal court procedural rules. Because appellee must have agreed to participate in the dismissal in order to achieve it, the dismissal by stipulation was not a dismissal taken only by appellant and thus does not trigger the consequences of the two-dismissal rule. Appellee was not required to enter into the stipulation, and she received a benefit in having the federal action dismissed, relieving her of the necessity of defending the action and eliminating the potential of a finding of liability on her part under Section 1983. Where a defendant has acted in combination with the plaintiff in obtaining a joint dismissal by stipulation of a claim, and received benefit from that action, that defendant cannot assert that the plaintiff should be barred as a result of the stipulated dismissal from filing a later claim.
Therefore, we hold that the dismissal by stipulation entered into by the parties to conclude appellee’s section 1983 action was not a dismissal by the plaintiff under Ark. R. Civ. P. 41(a)(2), and that her second filing of her state law negligence claims, in the Jefferson County Circuit Court is not barred by the two-dismissal rule. Because we have determined that the dismissal by stipulation in federal court was a joint action by both parties, the two-dismissal rule is not triggered by this fact pattern, and the trial court erred in dismissing appellant’s state court action on that ground. Accordingly, we reverse the grant of appellee’s motion to dismiss the case and remand this cause to the trial court for further proceedings consistent with this opinion. This ruling renders unnecessary any further consideration of appellant’s second point on appeal.
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Donald L. Corbin, Justice.
This case involves an issue of first impression regarding the priority of liens as between a general contractor and a bank. Appellant Simmons First Bank of Arkansas (Simmons) appeals the judgment of the Pulaski County Chancery Court awarding $250,528.05, plus interest, from a foreclosure sale to Appellee Bob Callahan Services, Inc. (Callahan). There are four points on appeal and one point on cross-appeal. Resolution of these issues requires our interpretation of the laws regarding mechanics’ and materialmen’s liens. See Ark. Code Ann. §§ 18-44-101 to -135 (1987 and Supp. 1999). Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2 (b)(1) & (6). We reverse and remand on appeal, but affirm on cross-appeal.
The record reflects that Doyle and Barbara DeWoody purchased a health club in North Little Rock by warranty deed dated May 26, 1994. On October 26, 1995, the DeWoodys executed and delivered to Appellant Simmons, then doing business as First Bank of Arkansas, a mortgage on the health-club property in the amount of $1,200,000.00. The mortgage was recorded on October 27, 1995, and reflects that it was executed for “personal purposes.” Sometime in late 1995, Appellee Callahan, a general contractor, entered into a contract with the DeWoodys to perform certain construction and remodeling to their health club. The first phase of the work was completed pursuant to a written contract dated November 30, 1995, which provided for a fixed fee of $135,403.34. The second phase of the work was completed on a cost-plus basis, whereby Callahan hired the necessary subcontractors, materialmen, and laborers to construct improvements to the building. Callahan began work on the second phase of construction on January 4, 1996, and the construction was completed on August 8, 1996. Callahan and its employees furnished materials and labor to the DeWoodys as the general contractor for the total price of $979,476.62. Over the course of the construction, Callahan received payments from the DeWoodys totaling $523,080.00, leaving an unpaid balance of $456,396.62. The DeWoodys subsequently defaulted in their obligations under the mortgage and filed for bankruptcy.
Callahan filed suit on August 30, 1996, to foreclose its materialmen’s lien for the labor, materials, and services provided. Simmons filed a counterclaim, asserting that its mortgage was entitled to priority over Callahan’s lien. The chancellor found that Calla han’s lien had priority on the basis that the mortgage, although filed before the construction began, failed to put anyone on notice that it was executed for the purpose of funding the construction, as provided in section 18-44-110(b)(l). The chancellor found further that Callahan’s lien was superior to the mortgage even though the improvements to the health club were not removable. Thus, the chancellor concluded that Callahan was entitled to foreclose on the DeWoodys’ property to satisfy its lien. The property was purchased at foreclosure sale by Simmons for the sum of $1,225,000.00. The proceeds of the sale were distributed first to Callahan, in the amount of $250,528.05, and then to Simmons. This appeal followed.
Simmons does not contest the validity of Callahan’s lien, nor does it contest that the lien was properly perfected. The central point on appeal involves the chancellor’s determination of the priority of the respective liens. We review chancery cases de novo on the record, but we do not reverse a finding of fact by the chancellor unless it is clearly erroneous. Myrick v Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999); Western Foods, Inc. v. Weiss, 338 Ark. 140, 992 S.W.2d 100 (1999). 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. Similarly, we review issues of statutory construction de novo, as it is for this court to decide what a statute means. Hodges v. Huckabee, 338 Ark. 454, 995 S.W.2d 341 (1999); State v. Farm Credit Servs., 338 Ark. 322, 994 S.W.2d 453 (1999). In this respect, we are not bound by the trial court’s decision; however, in the absence of a showing that the trial court erred, its interpretation will be accepted as correct on appeal. Id. With these standards in mind, we discuss the issue of priority of the liens.
Simmons argues that the chancellor erred in ruling that Callahan’s hen had priority over its mortgage as to the entire health-club property. Simmons asserts that when the General Assembly passed Act 1298 of 1995, thereby amending the law of materialmen’s hens, it intended to provide priority of such liens only in situations where the constructed improvement is removable. In the event the improvement is not removable, Simmons argues, the entire property should be foreclosed upon with the sale being subject to any prior encumbrance on the property. In short, Simmons contends that under section 18-44-110(b) a materialmen’s Hen enjoys priority over a mortgage only insofar as the improvements are removable.
We construe lien statutes strictly, as they are a derogation to the common law. BB & B Constr. Co. v. F.D.I.C., 316 Ark. 663, 875 S.W.2d 48 (1994). Strict construction means narrow construction and requires that nothing be taken as intended that is not clearly expressed. Lawhon Farm Servs. v. Brown, 335 Ark. 272, 984 S.W.2d 1 (1998). The doctrine of strict construction is to use the plain meaning of the language employed. Id. Nevertheless, even when statutes are to be strictly construed, they must be construed in their entirety, harmonizing each subsection where possible. Id.
As amended by Act 1298, section 18-44-110(b)(l) provides:
The liens for labor performed or materials or fixtures furnished, as provided for in this subchapter, shall attach to the improvement on which the labor was performed or the materials or fixtures were furnished in preference to any encumbrance existing on the real estate prior to the commencement of construction or repair of the improvement. In all cases where the prior encumbrance was given for the purpose of funding construction or repair of the improvement, that lien shall have priority over all liens given by this subchapter. [Emphasis added.]
It is clear from the plain language of this provision that the material-men’s lien attaches to the improvement and enjoys priority over all prior encumbrances on the real estate except those given for the purpose of funding the construction. Simmons concedes that the mortgage it held on the DeWoodys’ property was not a construction mortgage as described in subsection (b)(1). Notwithstanding, Simmons contends that its mortgage retains priority over Callahan’s lien because the improvements made to the DeWoodys’ property are not removable. We disagree.
Prior to the 1995 amendments, the statutes provided that the improvement had to be removable for the materialmen’s lien to have priority over a prior encumbrance on the property. See BB & B Constr. Co., 316 Ark. 663, 875 S.W.2d 48. Former section 18-44-130 provided that “[a]ny person enforcing the lien may have the building, erection, or improvement sold under execution, and the purchaser may remove it within a reasonable time after sale.” (Emphasis added.) That section was repealed by Act 1298. As it stands now, section 18-44-110(b)(2) provides the means for enforcing material-men’s liens:
The liens, as provided for in this subchapter, shall be enforced by foreclosure, as further provided for in this subchapter, and the property ordered sold subject to the lien of the prior encumbrance on the real estate. [Emphasis added.]
As can be seen from this language, there is no longer a requirement that the improvement be removable for the materialmen’s lien to be enforced. This notion is further evident from the recommendations made by the legislative task force created by Act 970 of 1993.
Act 970 provided that the duty of the task force was to examine existing laws concerning materialmen’s liens and to determine whether the public and the industry were adequately protected. In its Final Report, the task force recommended that the materialmen’s lien “should generally be subordinate to encumbrances on the real estate which pre-date the improvement, but have priority as to the improvement itself.” Final Report of the Arkansas Task Force on Materialmen’s Lien and Bonding Notice Requirements, at 11 (November 1994) (emphasis added). The task force recommended eliminating the requirement that the improvement be removable, as it concluded that removability was impossible in most cases. In its place, the task force urged the legislature to “authorize the lienholder to foreclose the hen and force a sale of the property subject to the prior encumbrance in those cases where removal of the improvement is impracticable.” Id. at 12. Notably, there was no recommendation that the priority status of the materialmen’s lien be conditioned on the removability of the improvement, as Simmons urges.
We thus reject Simmons’s interpretation of Act 1298. Were we to accept its argument, we would be effectively rendering superfluous and meaningless the provision in section 18-44-110(b)(1) that the materialmen’s Hen on the improvement has preference over any prior encumbrance other than one given for the purpose of funding the construction. There is simply no indication from that section that the priority of the materialmen’s lien is dependent upon the improvement being removable. The question then is whether, practically speaking, the priority of the material-men’s lien on the improvement may be enforced by foreclosure sale of the entire property. We conclude that the only way to adequately protect the competing interests is to require the chancery court to conduct a double appraisal of the property, determining the value of the property prior to construction of the improvement and the value of the property with the improvement.
This method is best illustrated by the case law of the Supreme Court of Alabama. Similar to our section 18-44-110, the statutory law of Alabama provided that as to the building or improvement, materialmen’s liens were given priority over all other liens, mortgages, or encumbrances, whether executed before or after construction began. See Empire Home Loans, Inc. v. W.C. Bradley Co., 241 So. 2d 317 (Ala. 1970); Baker Sand & Gravel Co. v. Rogers Plumbing & Heating Co., 154 So. 591 (Ala. 1934). Enforcement was also by means of foreclosure sale. Id. The dilemma faced by the Alabama court was how to adjust the proceeds of the sale in a way that gave the materialmen’s lien priority as to the improvement while simultaneously giving priority to the bank as to the real estate. The solution was to sell the entire property and distribute the proceeds in an equitable manner. The court held:
On principle as well as the authority of our former decisions, we hold the court of equity has plenary power to mold its decrees in such form as to conserve the equities of all parties; and may, when a removal of the building would, in large measure, operate a destruction of the security, order a sale of the property as a whole, adjusting priorities in the proceeds on equitable principles.
Id. at 597 (citations omitted). We believe that this approach best implements our current statutory scheme.
Section 18-44-101 provides that every contractor who supplies labor, materials, or services shall have a lien upon the improvement and up to one acre of land, or to the extent of the number of acres upon which improvement has been made. Section 18-44-110(b)(l) provides that the materialmen’s lien attaches only to the improvement, and thus enjoys priority over prior encumbrances on the property only as to the value of the improvement. Subsection (b)(2) provides that the means of enforcing a materialmen’s lien is foreclosure of the entire property, subject to the prior encumbrance on the land. To give meaning to each of these provisions, the chancery court must determine the value of the improvement using the double-appraisal method.
Accordingly, we reverse and remand this matter to the chancery court to conduct a double-appraisal of the property, determining the value of the property both with and without the improvement. Pursuant to its plenary powers in equity matters, the chancellor shall then distribute the proceeds of the sale, first to Callahan for the value of the improvement and the remainder to Simmons. See Ark. Code Ann. § 16-13-304(a) 8c (c) (Repl. 1999); Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920). Because we reverse on this point, it is not necessary to reach the merits of the remaining points on appeal. We note, however, that our holding today should not be extended beyond the particular facts of this case, as we are mindful of certain situations, i.e., where the mortgage on the property is not in default, that may require distinct analysis. We turn now to the point raised by Callahan on cross-appeal.
For its cross-appeal, Callahan argues that the chancellor erred in denying an award for (1) its direct payroll costs and (2) the amount of time spent on the construction job by Bob Callahan, individually. The order reflects that the chancellor did not award the requested payroll amount, $10,088.00, because there was insufficient evidence to show that the employees named actually performed the labor on the DeWoody project. The order also reflects that the amount requested for Bob Callahan’s labor was not included in the award because the amount testified to was speculative. We cannot say that the chancellor’s findings were clearly erroneous.
Regarding its direct payroll costs, Callahan has failed to sufficiently abstract the record on this issue. Specifically, Callahan has failed to abstract the individual time sheets that it claims indisputably show that the $10,088.00 payroll figure represents the employees’ time spent exclusively on the DeWoody project. Accordingly, we affirm the chancellor’s ruling on this issue. It is the appellant’s burden to abstract the record to demonstrate error, and this court will not go to the record to determine whether reversible error occurred. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996). Of course, the same rule applies to cross-appellants. Id.
We further conclude that it was not error to deny the labor claimed by Bob Callahan. At trial, Bob testified that he did not keep time sheets for his work. Rather, he stated that he called in his time to his office each day, and that his office staff would write down the information. He did not produce any such daily records made by his office staff. Instead, he introduced a summary sheet of his time, indicating that he had spent 623 hours on the DeWoody project at $35.00 per hour, for a total of $21,805.00. He admitted, however, that he had previously only requested payment of $9,467.50 for his labor on the job. Given his contradictory testimony, we cannot say that the chancellor erred in finding that the amount of labor expended by Bob on the project was speculative. We give due deference to the superior position of the chancellor to determine the credibility of witnesses and the weight to be accorded to their testimony. Myrick, 339 Ark. 1, 2 S.W.3d 60. We thus affirm the chancellor’s ruling on this point.
Reversed and remanded on appeal; affirmed on cross-appeal.
GLAZE, J., not participating.
It is not clear from the record how much land is at issue here. The record reflects, however, that the lien and the mortgage are coextensive, as both describe the property as: “Lot 9, Block 1, McCain Commercial Park Addition to the City of North Little Rock, Pulaski County, Arkansas.”
Alabama law currently provides priority for materialmen’s liens over other prior encumbrances only insofar as the improvement is removable. See Ala. Code § 35-11-211 (Repl. 1991). | [
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PER CURIAM.
Appellant, Tracy Young, by his attorney, Ann Hill, has filed a motion for rule on the clerk. On September 30, 1999, the Garland County Juvenile Court determined that Young was a delinquent juvenile, based upon the underlying offense of aggravated robbery, and committed him to the Division of Children and Family Services, Youth Services Center. Young then filed a timely notice of appeal on October 15, 1999. On December 28, 1999, Young filed a motion for extension of time to docket the appeal, but the order granting the extension was not filed until January 14, 2000, one day past the ninety-day deadline for filing the record with the Supreme Court Clerk, as set forth in Ark. R. App. P. — Civil 5(a) (1999).
Ms. Hill admits in the instant motion that the record was tendered late due to a mistake on her part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, we grant the motion for rule on the clerk. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id. | [
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RAY Thornton, Justice.
The petitioner, The Arkansas Public Defender Commission (the Commission), asks this court to issue a writ of prohibition against respondent, Craig-head County Circuit Judge David Burnett, and in its petition alleges that the judge was wholly without jurisdiction to order the Commission to pay legal fees for attorneys the trial court appointed to represent two minors in a civil action. We granted the Commission’s request for expedited consideration of the matter and had the parties brief the issues for our review. We treat the petition as one of certiorari and grant the writ in the Commission’s favor.
The issue in this petition arises from a civil suit filed in Craig-head County (the county) against Mitchell Johnson and Andrew Golden, the minors convicted of the March 1998 killings of four students and a teacher in Jonesboro. The suit, filed by the victims’ families, also named the minors’ parents, the gun manufacturer, and several other parties as defendants in the suit.
At the time the civil suit was filed, Johnson and Golden were in the custody of the Department of Human Services’s Division of Youth Services (DHS). DHS petitioned the trial court to appoint lawyers for the minor defendants, contending that as an arm of the executive branch it could not provide a defense in a civil action. Relying upon Ark. Code Ann. § 14-20-102 (Repl. 1998), which established a county fund providing, among other things, for the discretionary appointment of counsel for minors in a civil action, the trial court appointed attorneys ad litem for the minors.
The county sought to intervene, seeking reconsideration of the court’s order and contending that the applicable statute relating to payment for counsel was Ark. Code Ann, § 16-61-109 (1987) which provides that plaintiffs in the civil suit should be required to pay the attorney’s fees for minors in a civil action. The county then filed a supplemental motion to reconsider or clarify the original orders appointing attorneys ad litem. The county argued that the original orders did not specifically detail who was responsible for covering the cost of the minors’ attorneys.
On October 11, 1999, the trial court entered an order of clarification that denied the county’s request to intervene and noted that a substantial portion of the funds which had been established in the county for the purposes stated in Ark. Code Ann. § 14-20-102 had been allocated to the Commission pursuant to Ark. Code Ann. § 16-10-307 (Supp. 1999). The court then ordered the Commission to pay the attorneys’ fees for the minors in the civil suit.
The Commission had not participated in any way in either the underlying civil action or in the proceedings relating to the appointment and payment of attorneys for the minor defendants. Contending that the trial court’s order violated the constitutional protection of sovereign immunity, the Commission filed a petition for a writ of prohibition against the trial court’s order in this court. The trial court’s order appears to have transferred the statutory authority of the county to pay such fees to the Commission, but does not reflect any consideration of other alternatives, such as the appointment of guardians ad litem, or charging attorney’s fees to the plaintiffs.
We hold that although the Commission has sought a writ of prohibition, a writ of certiorari is the more appropriate remedy. A writ of prohibition cannot be invoked to correct an order already entered, and where, as here, the lower court’s order has been entered without or in excess of jurisdiction, we carve through the technicalities and treat the application as one for certiorari. Bates v. McNeil, 318 Ark. 764, 888 S.W.2d 642 (1994). A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). These principles apply when a petitioner claims that the lower court did not have jurisdiction to hear a claim or to issue a particular type of remedy. Id. We also note that neither the county nor DHS are participating in this proceeding, and on the record before us we cannot evaluate DHS’s appearance in the case.
We choose to treat the petition as a writ of certiorari and determine only whether the Commission was protected by the doctrine of sovereign immunity, thereby rendering the trial court’s order for the Commission to pay attorneys’ fees a plain, manifest, clear, and gross abuse of its discretion. Article 5, Section 20, of the Arkansas Constitution provides that “the State of Arkansas shall never be made defendant in any of her courts.” Id. We have held that this constitutional prohibition is not merely declaratory that the state could not be sued without her consent, but that all suits against the state were expressly forbidden. Brown v. Arkansas State HVACR Lie. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999); Beaulieu v. Gray, 288 Ark. 395, 398, 705 S.W.2d 880, 881 (1986); Page v. McKinley, 196 Ark. 331, 336, 118 S.W.2d 235 (1938). Where the pleadings show that the action is, in effect, one against the state, the trial court acquires no jurisdiction. Brown, supra. Further, where a suit is brought against an agency of the state with relation to some matter in which the appellee represents the state in action and liability, and the state, though not a party of record, is the real party in interest so that a judgment for the plaintiff would operate to control the action of the state or subject the state to liability, the action is, in effect, one against the state and is prohibited by the constitutional bar. Id.
We have also held that tapping the State’s treasury for payment of damages will render the State a defendant and violate the principles of sovereign immunity. Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998); State Office of Child Supp. Enforcem’t v. Mitchell, 330 Ark. 338, (1997); Arkansas Dep’t of Human Servs. v. State, 312 Ark. 481, 850 S.W.2d 847 (1993). Unless sovereign immunity is waived, the doctrine prohibits imposing liability upon the State. We have recognized two exceptions to the doctrine of sovereign immunity: (1) where the State is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Cross v. Arkansas Livestock & Poultry Comm’n, 328 Ark. 255, 943 S.W.2d 230 (1997); Fireman’s Ins. Co., 301 Ark. 451, 784 S.W.2d 771; Parker v. Moore, 222 Ark. 811, 262 S.W.2d 891 (1953).
In the present case, the Commission’s sovereign immunity has not been waived. First, the Commission, which is not a party to the civil suit, neither entered its appearance in the matter nor sought specific relief from the trial court. Further, the Commission’s sovereign immunity has not been waived statutorily by the General Assembly. The two statutes relied upon by the trial court do not impose an obligation upon the Commission to provide attorneys’ fees for minors in civil suits. Specifically, Ark. Code Ann. § 14-20-102 states:
(a)(1) There is hereby created on the books of the treasurer of each county in the state a fund to be used for the purpose of paying reasonable and necessary costs incurred in the defense of indigent persons accused of criminal offenses and in the representation of persons against whom involuntary admissions procedures for mental health or alcohol and narcotic commitments or criminal commitments have been brought, and for representation in civil and criminal matters of persons deemed incompetent by the court due to minority or mental incapacity, which have been brought in any trial courts, chancery courts, juvenile courts, probate courts, or city or county division of municipal courts, including, but not limited to, investigative expenses, expert witness fees, and legal fees.
Id. (Emphasis added.) The statute that allocated a portion of county funds established by Ark. Code Ann. § 14-20-102 to the Commission, Ark. Code Ann. § 16-10-307, does not contain language authorizing the Commission to expend public funds for civil representation of a minor. The duties of the Commission in Ark. Code Ann. § 16-87-306 (Supp. 1999) are stated as follows:
The public defender in each judicial district shall have the following duties:
(1) Defend indigents within the district as determined by the circuit, municipal, city, police, juvenile, probate, or chancery courts in the district in all felony, misdemeanor, juvenile, guardianship, and mental health cases, all traffic cases punishable by incarceration, and all contempt proceedings punishable by incarceration;
Id. (Emphasis added.)
There is no declaration of legislative intent to waive the Commission’s sovereign immunity, nor is there any requirement that the Commission have responsibility for attorney’s fees in civil cases. Specifically, the instruction of Ark. Code Ann. §§ 16-10-307 and 16-87-306 is to provide representation for indigents in cases in which there is a potential for loss of liberty. The provision of Ark. Code Ann. § 14-20-102, granting authority for the trial court to appoint attorneys for minors in civil litigation to be paid by county funds, was not incorporated in the statutes establishing and defining the duties and responsibilities of the Commission.
As the county is not a party to this proceeding, we make no determination as to whether the county may be required to pay the attorneys’ fees under the provisions of Ark. Code Ann. § 14-20-102. Neither do we address questions relating to the responsibility of the parents, the plaintiffs, the custodians, or the guardians of the minor defendants.
From the record before us we conclude that there has been no waiver of the Commission’s sovereign immunity. It follows that the Commission is protected by the doctrine of sovereign immunity and is not responsible for paying the minors’ attorneys’ fees. Accordingly, the trial court’s order forcing the Commission to pay the minors’ attorneys’ fees was a plain, manifest, clear, and gross abuse of its discretion requiring the issuance of a writ of certiorari to protect the sovereign immunity of the Commission.
Writ of certiorari granted.
CORBIN, J., not participating.
IMBER, J. concurs. | [
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Lavenski R. Smith, Justice.
Appellants, Books-A-Million, Inc. (“Books”), United States Fidelity and Guaranty Company (“USF&G”) and Robert P. Cockerham d/b/a Cockerham Construction Company (“Cockerham”), appeal a judgment of the White County Circuit Court awarding damages, prejudgment interest, costs, and attorney’s fees to Arkansas Painting and Specialties Company (“Arkansas Painting”). The judgment followed the court’s finding that Arkansas Painting had created a valid lien against the subject real property in compliance with Ark. Code Ann. §§ 18-44-101 — 18-44-508. The Circuit Court ordered the judgment paid from USF&G’s lien release bond filed with the Clerk of the Court. Appellants contend that the trial court erred in enforcing the lien because the appellee did not comply with the statutory notice requirements under Ark. Code Ann. § 18-44-115 (Supp. 1999). We agree and reverse.
Facts
In 1996, Books renovated its retail store in Searcy. Cockerham, apparendy acting as general contractor, contracted with Arkansas Painting for painting, sheetrock, and wallpapering work. Books leased the premises from Stewart Development Company and S-P Properties, of Huntington Beach, California. On December 4, 1996, Arkansas Painting completed its last day of work on the Books job. Cockerham did not pay for the services and materials. Arkansas Painting sent letters to Books and Cockerham on February 12, 1997, requesting payment and warning that if payment was not received in ten days that lien proceedings would commence. On March 14, 1997, Arkansas Painting sent Lien Notices to the owners and Cockerham, but not to Books. On March 28, 1997, Arkansas Painting filed the lien pursuant to Ark. Code Ann. § 18-44-101 (Supp. 1999), seeking payment of its contract price, fees, and costs. On April 3, 1997, Arkansas Painting sent Notice of Filing of Lien to the owners and to Cockerham, but not to Books. USF&G became involved by providing a bond to obtain release of the lien on behalf of Books, as provided under Ark. Code Ann. § 18-44-118, on June 9, 1997. On August 1, 1997, Arkansas Painting filed the instant action.
Following discovery, Books and USF&G filed a Motion for Summary Judgment on March 5, 1998, asserting one issue — failure to give adequate notice to perfect the lien. At the hearing on the motion, the trial court disposed of the case on agreed facts and determined that adequate notice was given. The court issued Findings of Law and Fact wherein it found the notice adequate and the lien therefore valid.
Standard for Review
The court tried the case below on agreed facts. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999); Arkansas Dep’t of Human Servs. v. Spears, 311 Ark. 96, 841 S.W.2d 624 (1992). 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. Wade v. Arkansas Dep’t Of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). In reviewing the findings of fact by a trial court, we consider the evidence and all reasonable inferences therefrom in a light most favorable to the appellee. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000).
Statutes in Derogation of the Common Law
The crucial issue before us is the construction to be given Arkansas lien statutes. In particular, whether the notice provisions of Ark. Code Ann. § 18-44-115 are to be strictly construed, thus requiring strict compliance, or whether they can be satisfied by substantial compliance. We hold that strict compliance is necessary. Any statute in derogation of the common law will be strictly construed. Although the General Assembly has the power to alter the common law, a legislative act will not be construed as overruling a principle of common law unless it is made plain by the act that such a change in the established law is intended. Hartford Ins. Co. v. Mullinax, 336 Ark. 335, 984 S.W.2d 812 (1999).
It has long been held that mechanic’s liens are in derogation of the common law. The materialmen’s lien and the construction money mortgage lien are in derogation of common law. Both .are creatures of the legislature. The legislature is presumed to know the decisions of the supreme court, and it will not be presumed in construing a statute that the legislature intended to require the court to pass again upon a subject where its intent is not expressed in unmistakable language. Rhodes v. Cannon, 112 Ark. 6, 164 S.W. 752 (1914); Spickes Bros. Paint Cont. v. Worthen Bank & Trust Co., 299 Ark. 79, 771. S.W.2d 258 (1989). In Valley Metal Works, Inc. v. A.O. Smith-Inland, 264 Ark. 341, 572 S.W.2d 138 (1978), we stated, “Our lien statutes are in derogation of the common law and we construe them strictly since they provide an extraordinary remedy that is not available to every merchant or worker.” See also, Christy v. Nabholz Supply Co., 261 Ark. 127, 546 S.W.2d 425 (1977); Dews v. Halliburton Indus., Inc., 288 Ark. 532, 708 S.W.2d 67(1986); National Lumber Co. v. Advance Development Corp., 293 Ark. 1, 732 S.W.2d 840 (1987); Gray v. Nations, 1 Ark. 557 (1839).
The notice requirements are for the benefit and protection of the owner. Bell v. Apache Supply Co., 300 Ark. 494, 780 S.W.2d 529 (1989); Ellis v. Fayettville Lumber & Cement Co., 195 Ark. 385, 112 S.W.2d 613 (1938). Specifically, Ark. Code Ann. § 18-44-114 and § 18-44-115 provide two separate notice provisions. Section 18-44-114 provides:
18-44-114. Notice and service generally.
(a)(1)(A) Every person, except the original contractor, who may wish to avail himself of the benefit of the provisions of this subchapter shall give ten (10) days’ notice before the filing of the lien, as required in § 18-44-117(a), to the owner, owners, or agent, or either of them, that he holds a claim against the building or improvement, setting forth the amount and from whom it is due.
This section requires that notice be given within at least ten days of an intention to file a lien. However, before the lien is actually filed, the next section, Ark. Code Ann. § 18-44-115, requires an additional, more specific notice be sent to the owner of the property prior to filing not more than seventy-five days after the completion of the work. It provides in pertinent part:
18-44-115. Notice to owner by contractor.
(e)(1)(A) The General Assembly hereby finds that owners and developers of commercial real estate are generally knowledgeable and sophisticated in construction law, are aware that unpaid suppliers of labor and material are entitled to assert liens against the real estate if unpaid, and know how to protect themselves against the imposition of mechanics’ and material suppliers’ liens.
(B) ' The General Assembly further finds that consumers who construct or improve residential real estate containing font (4) or fewer units generally do not possess the same level of knowledge and awareness and need to be informed of their rights and responsibilities.
(C) Because supplying the notice specified in subsection (c) of this section imposes a substantial burden on material suppliers, the notice requirement mandated under subsection (b) of this section as a condition precedent to the imposition of a material supplier’s lien shall only apply to construction of or improvement to residential real estate containing four (4) or fewer units.
(2) (A) No material supplier or laborer shall be entitled to a lien unless the material supplier or laborer notifies the owner of the commercial real estate being improved, in writing, that such material supplier or laborer is currently entitled to payment, but has not been paid.
(B) This notice shall be sent to the owner and to the contractor by registered mail, return receipt requested, before seventy-five (75) days have elapsed from the time that the labor was supplied or the material furnished.
(C) Such notice shall contain the following information:
(i) A general description of the labor, service, or material furnished, and the amount due and unpaid;
(ii) The name and address of the person furnishing the labor, service, or materials;
(iii) The name of the person who contracted for purchase of the labor, service, or materials;
(iv) A description of the job site sufficient for identification; and
(v) The following statement set out in boldface type:
“NOTICE TO PROPERTY OWNER
IF BILLS FOR LABOR, SERVICES, OR MATERIALS USED TO CONSTRUCT AN IMPROVEMENT TO REAL ESTATE ARE NOT PAID IN FULL, A CONSTRUCTION LIEN MAY BE PLACED AGAINST THE PROPERTY. THIS COULD RESULT IN THE LOSS, THROUGH FORECLOSURE PROCEEDINGS, OF ALL OR PART OF YOUR REAL ESTATE BEING IMPROVED. THIS MAY OCCUR EVEN THOUGH YOU HAVE PAID YOUR CONTRACTOR IN FULL. YOU MAY WISH TO PROTECT YOURSELF AGAINST THIS CONSEQUENCE BY PAYING THE ABOVE NAMED PROVIDER OF LABOR, SERVICES, OR MATERIALS DIRECTLY, OR MAKING YOUR CHECK PAYABLE TO THE ABOVE NAMED PROVIDER AND CONTRACTOR JOINTLY.”
(3) Any contractor who fails to give the notice required by this subsection shall be guilty of a misdemeanor and shall be punished by a fine not exceeding one thousand dollars ($1,000).
The notice provisions contained in these statutes must be complied with strictly. National Lumber Co., supra. Applying these provisions to the facts of the instant case, we hold that Arkansas Painting did not send the notice required by § 18-44-115 within the time and in the manner specified by the statute. The facts reflect that Arkansas Painting sent letters on February 12, 1997, which, although they referenced the obligation, did not meet the statutory requirements. On March 14, 1997, Arkansas Painting sent notices containing the statutory language but the notice was sent beyond the seventy-fifth day following completion of the work.
Attorneys’ Fees and Costs
Because we hold the hen to not have been validly created, there is no need to address the appellee’s entitlement to fees and costs under Ark. Code Ann.§ 18-44-128.
Reversed and remanded. | [
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TOM Glaze, Justice.
This appeal actually arises from two earlier cases. The first was an illegal-exaction case filed by attorney Oscar Stilley on behalf of Earl Oxford on March 11, 1997, in the Chancery Court of the Fort Smith District in Sebastian County. Named as defendants were the Sebastian County assessor, county judge, collector, and treasurer, and the State Treasurer and Land Commissioner. Plaintiff Oxford’s suit challenged the assessment of 1996 property taxes under Act 758 of 1995. The taxes at issue in that suit were paid in 1997, but because Oxford was a resident of Barling, Arkansas, he was unable to allege that he owned property in the Fort Smith District or paid taxes on any property in that district. Sebastian County is divided into two districts, the Fort Smith District and the Greenwood District. See Ark. Const, art. 13, § 5. These two districts are treated as separate counties for purposes of determining venue. See Prairie Implement Co. v. Circuit Court of Prairie County, 311 Ark. 200, 844 S.W.2d 299 (1992); Jewett v. Norris, 170 Ark. 71, 278 S.W. 652 (1926).
In November of 1998, Stilley amended Oxford’s complaint to add all of the cities, towns, and school districts of Sebastian County, as well as Westark Community College and the Fort Smith Public Library Board. In December 1998, the various defendants filed motions to dismiss under Ark. R. Civ. P. 12(b)(6), for failure to state a claim for relief, and also under Ark. R. Civ. P. 8(a), for failure to allege sufficient facts showing Oxford was entitled to relief. In addition, the defendants objected to venue and jurisdiction, because Oxford, as a resident of the Greenwood District, had no standing to bring an action in the Fort Smith District. Westark also offered as a defense the argument that the taxes were paid voluntarily. Westark’s defense was based on the recognized rule that taxes paid after the filing of a suit seeking a tax refund are considered involuntarily paid and recoverable. It is this rule that played significantly in the two suits Stilley’s plaintiffs filed.
A hearing on the motions to dismiss was set for February 1, 1999. That same morning, Stilley attempted to file a Second Amended Complaint which would have added plaintiffs who had paid taxes in the Fort Smith District. The chancellor refused to permit the amendment on the grounds that it was untimely. On February 3, 1999, the chancellor entered an order dismissing the complaint without prejudice on the two following grounds: (1) lack of venue, as Oxford did not live in the district in which the suit was filed, and (2) Oxford’s failure to state sufficient facts under Rule 8(a), thus depriving the court of subject matter jurisdiction.
Oxford never filed a notice of appeal from the February 3 decision. Instead, on March 15, 1999, Stilley filed a new complaint against the same defendants named in Oxford’s suit, but this second suit was filed on behalf of a new set of plaintiffs — Horton Elzea, John Hoyle, and Ronald Williamson — each of whom actually owned property in Fort Smith. Stilley again filed this lawsuit in the Fort Smith District, but in circuit court, rather than chancery court. Stilley and his new plaintiffs again challenged the 1997 payment of 1996 property taxes; however, it is undisputed that these taxes were paid before the Elzea plaintiffs filed their lawsuit.
The defendant taxing entities again moved to dismiss under Rules 12(b)(6) and 8(a), and also defended on the grounds that, because the taxes were voluntarily paid before suit was filed, any recovery of those tax monies was barred. The Elzea plaintiffs, on the other hand, urged that their suit was merely a re-filing of the original suit filed by Oxford, and that the taxes complained of were paid and collected after that suit was initiated and therefore were involuntary.
Ultimately, both the Elzea plaintiffs and the defendants moved for summary judgment. The circuit court granted summary judgment for the defendants, finding that this second suit involved new plaintiffs and was filed in a different court, and was thus not a “refiling” of the original chancery action, as the plaintiffs contended. Because the second suit was brought in circuit court two years after the Elzea plaintiffs had already paid the 1997 taxes in issue, the court found the plaintiffs were barred from recovering taxes that they had voluntarily paid.
We find this to be a correct application of our law. In Austin v. Austin, 241 Ark. 634, 409 S.W.2d 833 (1966), this court held that “a dismissal . . . leaves the situation as though no suit had ever been brought, and it has the effect of an absolute withdrawal of the claim and leaves [the] defendant as though he had never been a party.” Austin, 241 Ark. at 638, 409 S.W.2d at 836. Because the chancellor dismissed Oxford’s original action, that suit is treated as though it never existed. For that reason, Stilley’s second suit brought on behalf of the Elzea plaintiffs could not relate back to the date of the original chancery suit, thus removing the basis for their claim that the 1996 taxes they paid in 1997 after the Oxford action were paid involuntarily. At the time of the payment of the disputed taxes, none of the circuit court plaintiffs were parties to the action challenging the assessment of property taxes. Plaintiffs do not contend their tax payments were coerced. Therefore, there is no basis for the imposition of an “involuntary” status on any tax payments made by the plaintiffs to this suit.
Arkansas has consistently followed the common-law rule that prohibits the recovery of voluntarily paid taxes, except where a recovery is authorized by a statute without regard to whether the payment is voluntary or compulsory. We follow this rule even when an illegal-exaction claim is based, as it was here, on constitutional grounds. See Mertz v. Pappas, 320 Ark. 368, 896 S.W.2d 593 (1995); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). We have held that taxes paid after the filing of a complaint are considered to be paid involuntarily, and thus recoverable. See Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998). In this case, as we have pointed out, the taxes were assessed in 1996 and paid in 1997. The Elzea lawsuit filed by Stilley was not filed until 1999; therefore, because the taxes were deemed voluntarily paid and unrecoverable by the plaintiffs, the circuit court properly granted the defendants’ motions for summary judgment.
The plaintiff-appellants make one other argument which we need not address. They argue that the savings statute, Ark. Code Ann. § 16-56-126 (1987) should apply and that it should somehow recreate an “involuntary taxpayer” status. However, this statute is only used when the original statute of limitations period expires in the interim between the fifing of the complaint and the time at which either a nonsuit is entered or the judgment is reversed or arrested. The statute “only applies to those causes of action which ... would otherwise be barred before the running of one year from the time of taking such nonsuit.” Shelton v. Jack, 239 Ark. 875, 395 S.W.2d 9 (1965) (citing Love v. Cohn, 93 Ark. 215, 124 S.W.2d 259 (1909)). However, in this situation, the original statute of limitations had not yet expired, and thus, the savings statute is simply irrelevant.
For the reasons set out above, we affirm the circuit court’s order granting the defendants’ motions for summary judgment.
The defendant-appellees raise a number of other arguments for reversal with respect to the propriety of the appellants’ notice of appeal. For instance, the appellees point out that the plaintiff-appellants nominally appealed from the order of the circuit court, but the only issues and arguments raised in the appellants’ brief concern the order dismissing the suit from chancery court, from which no notice of appeal was ever filed. However, while there appears to be some merit in some of the appellees’ arguments, we do not reach them, because we decide the case on the basis of the voluntary-payment rule.
Defendant-appellee Westark Community College also points out, correctly, that Ark. R. Civ. P. 15(c) cannot be used to somehow relate the Elzea suit back to the Oxford suit. This rule permits the amendment of a pleading to “relate back” to the date of the original pleading. Its purpose is not to permit the relation back of an entirely separate lawsuit to a suit that was properly dismissed and never appealed. | [
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ANNABELLE Clinton Imber, Justice.
This is an election-contest case. A special election was held on March 9, 1999, to fill a vacancy in the office of Ouachita County Municipal Judge. No candidate received a majority of the votes cast, so a runoff election was held on March 30, 1999, between the appellant, Tim A. Womack, and the appellee, Phillip J. Foster. On the night of the election, Mr. Foster challenged over 600 absentee ballots as they were being counted. Based on Mr. Foster’s challenge to the absentee ballots, the Ouachita County Election Commission threw out sixteen ballots for failure of the voters to comply with absentee voting laws. Mr. Womack made no challenges to any absentee votes as the votes were counted. Mr. Womack was declared the winner by a vote of 3,011 to 3,004, a margin of only seven votes. Not including absentee votes, the vote tally was 2,717 for Mr. Foster and 2,337 for Mr. Womack. The absentee votes added 674 to Mr. Womack’s total and 287 to Mr. Foster’s total. Thus, the absentee votes provided Mr. Womack with his seven-vote margin of victory. These results were certified by the Election Commission of Ouachita County on April 12, 1999.
Shortly before the runoff election, Mr. Foster had filed a petition for a writ of mandamus and declaratory judgment against Eve Holeman in her capacity as Ouachita County Clerk, asking that the trial court order her to comply with Arkansas’s absentee voting laws in the conduct of the runoff election. Specifically, Mr. Foster alleged that the county clerk had accepted absentee-ballot applications in which the applicants did not indicate a reason for voting absentee, as required by statute; and that she had also accepted applications and issued ballots to applicants who designated agents to deliver their applications to the county clerk because they were medically unable to do so themselves, but whose medical status was not verified by affidavit, as required by statute. Mr. Foster further alleged that the voter statement provided to absentee voters did not comply with the form mandated by Ark. Code Ann. § 7-5-409 (b)(4) (Supp. 1997); that the county clerk had failed to require that any person identified by the absentee voter as a designated bearer, authorized agent, or relative, sign documentation upon delivery of absentee ballots to her office; and that she had also failed to maintain any record of how many such ballots had been delivered to her office by each person so identified, as required by Ark. Code Ann. § 7-5-411(a)(2) (Supp. 1997).
At a hearing on March 29, 1999, Ms. Holeman testified that she advised applicants for absentee ballots that they did not have to indicate a reason for voting absentee. She also told her deputy clerks and employees to dispense this same advice to voters. According to her testimony, the clerk’s office readily issued absentee ballots to voters knowing that they had not indicated a reason on their absentee-ballot applications. She also admitted that she failed to make sure that medical affidavits were attached to absentee-ballot applications delivered by authorized agents for persons who were medically unable to deliver their own applications to her office. Furthermore, Ms. Holeman confirmed that the voter statements provided to absentee voters by her office were not in compliance with the law. Specifically, the forms did not contain a place for the voter to appoint a designated bearer to return the ballot. Nor did it contain a place for the bearer of the ballot, either as a designated bearer, relative of the voter, or authorized agent, to sign his or her name. Finally, Ms. Holeman testified that the county clerk’s office did not maintain a document signed by persons delivering absentee ballots to her office or any kind of record as to how many absentee ballots were brought to her office by a person other than the absentee voter.
The trial court granted Mr. Foster’s petition for writ of mandamus on March 29, 1999, and directed the county clerk to follow the applicable statutes regarding absentee voting. However, the trial court reserved ruling on Mr. Foster’s request that absentee ballots not applied for, issued by, or delivered to the county clerk in compliance with absentee voting laws, be declared null and void. Mr. Womack did not appeal the issuance of the writ of mandamus, and Mr. Foster’s mandamus and declaratory-judgment action was eventually consolidated with the election contest now at issue.
Mr. Foster’s election-contest complaint, which was timely filed on April 14, 1999, sought to cancel more than 600 absentee votes for Mr. Womack based on numerous instances of noncompliance with the absentee voting laws. Specifically, Mr. Foster asked the trial court to disqualify the votes of those absentee voters who did not state a reason for voting absentee on their applications and those who delivered their applications by means of an agent but failed to submit a medical affidavit. He also asked the trial court to disqualify all absentee ballots where the application or the ballot was delivered by a bearer, agent, or relative, unless the bearer signed the voter statement and a clerk-maintained record that identified the voters for whom the ballots were borne; and to disqualify all absentee ballots supported by undated applications, or applications showing only the March 9 election date, or applications altered to add the March 30 election date or the words “all elections.”
Furthermore, he alleged that one voter died prior to the runoff election; four voters were not mentally competent to vote in the election; the absentee ballots of three voters were fraudulently marked by someone else; seven voters fraudulendy stated on their applications for absentee ballots that they would be unavoidably absent from their polling sites on election day; and that certain conduct on the part of Mr. Womack’s campaign workers was illegal and fraudulent. Exhibits attached to the complaint identified the voters whose votes were being challenged by Mr. Foster and the reasons for those challenges. Finally, Mr. Foster alleged that he would be the winner of the election if the election returns were purged of the challenged absentee ballots cast for Mr. Womack. On April 21, 1999, Mr. Womack filed a timely answer to the election-contest complaint denying each of Mr. Foster’s substantive allegations of illegality or fraud. Mr. Womack also asserted in his answer that Mr. Foster’s complaint represented an improper effort to disen franchise qualified voters, in violation of the constitution and laws of Arkansas, and in violation of the U.S. Constitution and federal civil rights and voting rights laws.
Mr. Foster filed a timely amendment to his earlier complaint on April 30, 1999. In addition to restating many of the allegations found in his original complaint, he alleged that four voters were convicted felons and not legally entitled to vote; five voters were not residents of Ouachita County and not entitled to vote; signature irregularities and forgeries were on applications and voter statements; voter-registration cards did not exist for 10 voters; 408 voters failed to state a valid reason for voting absentee on their voter statements; 116 voters, whose applications indicated the appointment of an authorized agent for medical reasons, failed to attach medical affidavits to their applications or voter statements; some voters voted absentee despite being available to vote at their polling sites on election day; and Mr. Womack’s campaign workers inserted the names of bearers on absentee-ballot applications after the applihad already signed the application.
On May 3, 1999, Mr. Womack filed a counterclaim, also alleging noncompliance with absentee voting laws. Specifically, he alleged that Mr. Foster’s campaign workers made changes to the ballot materials of unidentified absentee voters after those materials had been filled out by the voters but before delivery to the court clerk; that one identified voter was paid to vote for Mr. Foster; that the ballots of three identified voters were cast by persons other than the voters, acting pursuant to powers-of-attorney; that thirty-one identified voters were nonresidents of Ouachita County and not entitled to vote; that eight ballots were delivered to the clerk by persons claiming to be relatives of identified voters, when, in fact, they were not relatives; that certain signatures of unidentified voters appeared to be forgeries; that more than five envelopes containing ballot materials were illegally delivered to a certain address; that all votes should be canceled where bearers returned more than five ballots to the county clerk; and that unidentified felons voted in the election. Mr. Womack also alleged that the county clerk disenfranchised certain unidentified voters when she refused to issue ballot materials to them because their applications for absentee ballots tendered the day before the election did not comply with absentee voting laws; and that she disenfranchised twenty-five unidentified absentee voters whose ballots were not counted because they had not been delivered to the clerk’s office until the day after the election.
Mr. Womack further challenged the Election Commission’s rejection of certain absentee ballots for various reasons, including the voter’s failure to attach a medical affidavit to his or her application or voter statement; the voter’s married name not matching the name on the voter-registration card; the voter’s failure to properly complete, sign, and tender the voter statement; and ballot stubs being lost or misplaced. Most significantly, Mr. Womack alleged in his May 3 counterclaim that the Ouachita County Election Commission violated Section 3 of Amendment 50 to the Arkansas Constitution by failing to number the ballots correctly, thus rendering all ballots used in the election untraceable. Mr. Womack restated this allegation in a motion for summary judgment filed on June 3, 1999, and further asserted that the failure to comply with the constitutional numbering requirement rendered the entire election void, thereby requiring that the results of the election be set aside. Mr. Womack filed an amended counterclaim on June 7, 1999, restating many of his earlier allegations. Additionally, he alleged various instances of illegality and fraud by Mr. Foster’s campaign workers and asked that all absentee ballots handled by them be set aside and canceled. Mr. Womack also rebutted many of the earlier allegations made by Mr. Foster in his complaint and amended complaint.
A trial was held on Mr. Foster’s complaint and amended complaint and Mr. Womack’s counterclaim and amended counterclaim over the course of eleven days, beginning on June 8, 1999, and ending on July 21, 1999. Mr. Foster first introduced several exhibits that contained separate groups of absentee-ballot applications and voter statements in the following categories: applications and voter statements in which no reason was given for voting absentee; voter statements where “early voting” was marked as the reason for voting absentee; applications and voter statements in which medical reasons were given for voting absentee, but with no medical affidavits attached; applications that were undated; and applications with no election date or an incorrect or crossed out election date. Mr. Foster also introduced certified copies of a death certificate, a guardianship order, and circuit court records reflecting the felony convictions of four individuals.
Mr. Foster then called Sylvester Smith, Jr., to testify about his work for Mr. Womack’s campaign. As part of that work, Mr. Smith delivered between 100 and 200 absentee-ballot applications to voters and urged them to vote for Mr. Womack. Mr. Smith gave the following description of how he solicited absentee votes:
[F]or the last several years I have gotten out and tried to get people that wasn’t involved in voting that was always complaining on the street, but never doing anything about it at the polls. I convinced a lot of them to register to vote and get involved in the process. After they got involved in the process, every election a lot of them flagged me down on the street wanting to continue to vote absentee, being involved in the process. Okay.
I would get them a application. A lot of these people work at different places. They leave at 6:00 in the morning. A lot of them don’t get home until 7:00 at night, trying to struggle to make a living for their families.
Okay. I would get then a application. They would sign the application. I would explain to them up front that I could only — according to the Clerk — pick up five ballots from the Clerk’s office. They would ask me, “then who would be bringing my ballot?” I’d say, “Well, I would have to find a bearer, a designated bearer to go and obtain your ballot. Do you mind?” “No. I don’t mind, but I want you to bring my ballot back to me. I don’t want any stranger person coming to my house or in day the [sic] that I don’t know.” A lot of these people are elderly people that I assist in voting, because they cannot get to the polls.
Okay. They know up front that on these applications that I’m not going to be the bearer, that I can only get five. Okay. I asked Ms. Bevers did she know some credible people, honest people that would work to be a bearer, would they mind to go and pick up a ballot. She said she thought she could find some bearers. Okay. No one has been, you know, fooled or tricked. Up front, these people have signed these applications. They know that Sylvester Smith is going to help them obtain their ballot. They know Sylvester Smith is going to bring their ballot back to them. They know that after they vote, these ballots are going to be sealed up in front of them and either taken back to the polls by the bearer or mailed back to the Clerk’s office.
During his testimony, Mr. Smith produced twenty-nine envelopes containing original ballots and original voter statements that he had in his possession on election day, but that had not been delivered to voters.
Randall C. Ferguson, another Womack campaign worker, testified that he had helped people vote absentee for at least eight years, and that he also solicited in excess of 100 absentee votes for Mr. Womack. Mr. Ferguson’s method of soliciting absentee votes was similar to that of Mr. Smith, except that Mr. Ferguson was shown on each application as the voter’s authorized agent to deliver the application because the voter was medically unable to deliver the application. However, medical affidavits were not attached to any of the applications or voter statements that identified Mr. Ferguson as the voter’s authorized agent. Mr. Ferguson acknowledged that on some voter statements, he was incorrectly identified as a voter’s relative for purposes of delivering the ballot to the clerk’s office. He also testified that he saw voters mark their ballots and sign their voter statements and that he would help voters place their ballots and voter statements in the appropriate envelopes and then seal the envelopes. Finally, Mr. Ferguson acknowledged that after he had personally delivered at least five ballots to the clerk’s office, he began to mail the envelopes containing each absentee voter’s ballot and voter statement back to the clerk’s office.
Many absentee voters and their relatives were called to testify about numerous instances of impropriety in the absentee voting process. Several of those absentee voters testified that they could have voted at their regular polling places on election day. Some witnesses testified about the mental and physical condition of their spouses or parents who were absentee voters in the runoff election. Other witnesses testified about the status of their residency or a relative’s residency in Ouachita County on the date of the election. Many witnesses testified that Mr. Smith or Mr. Ferguson assisted them or their relatives in voting absentee. For example, Mildred Ann Hill testified that she and her husband, Robert Hill, allowed Mr. Smith to mark their ballots because they did not have glasses on at the time. Grady Moore testified that he relied upon Mr. Ferguson’s advice when he signed his wife’s name to an application for an absentee ballot and to the voter statement, as well as when he marked her ballot. At that time, his wife was living at a nursing home and could not communicate with anyone. Gwen Ford testified that Mr. Ferguson witnessed her sign the applications for herself and her parents, Sherman Sanders and Beadie Sanders, and that Mr. Ferguson’s fellow campaign worker, Milton Cook, was present when she signed all three voter statements and marked all three ballots. At that time, her mother was a stroke patient at a nursing home.
Similarly, Sudie Jackson testified that Mr. Ferguson saw her sign voting materials for not only herself, but also for Ben Davis and her mother, Callie Murphy. Several witnesses who had designated Mr. Ferguson as their authorized agent to deliver their applications because they were medically unable to do so, testified that they picked up ballots for other absentee voters at the clerk’s office and delivered them to Mr. Ferguson. Another Womack campaign worker, Nancy Kendall, solicited absentee ballots from nursing home residents. She was a designated agent for five of those residents, but did not attach medical affidavits to their applications or voter statements. She also solicited several other applications where another bearer’s name was inserted.
Linda R. Taylor testified as an expert witness in the field of handwriting examination. She testified that she examined the voter applications, voter statements, and, in some instances, the voter-registration cards of many of the absentee voters who voted in the runoff election. As part of her testimony, she offered her expert opinion that it was highly probable that sixty-six absentee voters did not sign either the application, the voter statement, or both, and that the signatures on the voter statements of five absentee voters did not match the signatures on their respective applications. Ms. Taylor specifically identified those seventy-one absentee voters in a report.
After Mr. Foster concluded his presentation of testimony and evidence concerning the ballots he was challenging, the parties stipulated to the following facts: As the absentee ballots were being processed by election officials on the day of the election, Mr. Foster challenged approximately 630 of about 1000 absentee ballots. The envelopes containing each absentee ballot, along with the voter statement and ballot stub, were then segregated. The election officials rejected twenty-six ballots for various irregularities, including the absence of a voter statement, the failure of the voter to sign the voter statement, illegible signatures, or incorrect signatures or names. Approximately 332 unchallenged ballots were then set aside to be counted, and the ballot stubs were separated from those ballots. This made it impossible to identify the persons who cast those ballots because the ballot numbers and the voter numbers appeared only on the ballot stubs. After a hearing on Mr. Foster’s challenges, the Ouachita County Election Commission rejected seventeen more ballots, with one being thrown out because the stub was missing and the remaining sixteen being thrown out because the voter statements identified the reason for voting as a medical disability, but no medical affidavits were attached. The Election Commission then began to count the challenged but unrejected ballots. It was at that point that the back of each challenged ballot was marked with the ballot number printed on that ballot’s stub so that each ballot could be traced to a voter.
When the recitation of the above stipulated facts was completed, the trial court ruled that Mr. Foster had made a prima facie showing that the ballots of 546 identified absentee voters should be set aside as not in compliance with the laws of Arkansas. The parties then stipulated that 518 of those absentee ballots were cast for Mr. Womack.
Mr. Womack then proceeded with the presentation of his case and called Ms. Holeman, the Ouachita County Clerk, as his first witness. She testified about attending regular continuing education programs for county clerks where she would receive training and information on the current status of election laws and procedures. Ms. Floleman confirmed that prior to the issuance of the writ of mandamus on March 29, 1999, her office did not verify that one of two statutory reasons for voting absentee had been declared on each application. When the application permitted delivery by an authorized agent, Ms. Floleman would only require a medical affidavit if the applicant was going to be in the hospital or a nursing home on election day. Nor would she verify whether information about the particular election was properly filled out or whether an application that indicated it could be delivered by a relative or designated bearer was in fact delivered by a relative or someone who knew the voter. Flowever, she did keep a separate list of the names of those persons who picked up ballot materials for other voters in order to enforce the five-ballot rule. She would also keep a list of the voters who were issued absentee ballots in order to avoid sending duplicate ballots to the same voters.
These policies and procedures in her office were conveyed to her clerks and to voters and campaign workers who sought guidance regarding absentee voting procedures. Ms. Holeman further testified that twenty-five ballot packages were not counted because they were received by the clerk’s office the day after the election. On cross-examination, Ms. Holeman reaffirmed her earlier testimony at the mandamus hearing that the voter statement used by her office before March 29 did not comply with the law. She also confirmed that her office’s previous policies on absentee voting procedures changed after the writ of mandamus. Finally, Ms. Holeman testified that voters in Ouachita County vote by paper ballot and the ballots are then tabulated by machine.
Ray Bush, a Foster campaign worker, testified by deposition about his method of soliciting absentee votes. He would take the application to the voter, get it filled out, and then take it to Mr. Foster’s office where someone would make sure it had been filled out correctly. If corrections were necessary, one of the secretaries would fill in the missing items or check a box that needed to be checked. Mr. Bush would then take the application to the clerk’s office, pick up a ballot, and take it to the voter. He would tell the voters how to fill out the ballot and the voter statement, place both items in the envelope, and take the envelope back to the office where the ballot and voter statement were pulled out of the envelope and checked to make sure they had been filled out properly. After making a record of how the absentee voter voted, the envelope would then be sealed and delivered to the clerk’s office.
When Mr. Bush could no longer be a ballot bearer due to the five-ballot rule, he began to ask each voter not to fill in the spaces on the application or the voter statement for the bearer’s name so that a bearer’s name could be inserted at the office. When the bearer’s name was left blank, he would drop the application off at the office, at which point someone else would take the application to the clerk’s office, pick up the voter’s ballot materials, and return them to the office. Mr. Bush would then go to the office and pick up those ballot materials, deliver them to the voter, and return the completed ballot materials to the office for delivery to the clerk’s office by another bearer. According to a certified copy of a federal court record introduced by Mr. Womack, a criminal judgment had been entered against Mr. Bush in 1993.
Andrea Easter testified by deposition that Herbert Thompson paid her $5 to vote for Mr. Foster. Her sister, Carla Purifoy, also testified by deposition that Mr. Thompson gave her $5, possibly to encourage her to vote for Mr. Foster; but she didn’t know if she voted, much less who she voted for. Mr. Thompson testified by deposition that he was hired by Mr. Foster to take people to the polls to vote. He denied paying anyone to vote for Mr. Foster in the runoff election. He also testified that someone else signed his name on two absentee-ballot applications.
On July 26, 1999, the trial court issued its written findings of fact, conclusions of law, and judgment that invalidated 518 absentee votes for Mr. Womack and one absentee vote for Mr. Foster. Thus, Mr. Foster gained 517 votes due to the trial court’s findings and was declared the winner by 510 votes. The 518 absentee votes for Mr. Womack were invalidated by the trial court for the following reasons: 495 were invalidated because the absentee-ballot applications did not indicate a reason for voting absentee; twelve were invalidated because the voters testified that they were available to vote at their polling sites on election day, despite the fact that they voted absentee; fifteen votes were invalidated because the name of the bearer was filled in by someone other than the voter after the voter had signed the application; sixty-four votes were invalidated because, according to the testimony of Mr. Foster’s expert witness, Linda Taylor, those ballots were cast as a result of a forgery on either the application or the voter statement; 119 votes were invalidated for failure to attach a medical affidavit and additionally because Mr. Randall Ferguson mailed the ballots in for the voters; ten votes were invalidated because the applications either gave no reason for not voting on election day, a person was listed as a bearer after the voter signed the application, or Sylvester Smith mailed the ballot in for the voter; one was invalidated because the voter died before election day; four votes were invalidated because the voters were not residents of Ouachita County; four votes were invalidated because the voters were mentally incompetent; and four votes were invalidated because the voters were convicted felons. Many votes were thrown out for multiple reasons. The trial court reached the total number of 518 by invalidating 495 votes for not stating a reason on the absentee-ballot application for voting absentee, and by invalidat ing an additional twenty-three votes for some of the other reasons listed above.
With regard to Mr. Womack’s argument that the entire election should be voided for failure to comply with the numbering requirement of Ark. Const, amend. 50, § 3, the trial court found that the runoff election in Ouachita County was conducted by “machine” rather than by “ballot.” Thus, the trial court ruled that the numbering requirement did not apply, and there was no constitutional violation. The trial court further stated that Mr. Womack waived any argument based on the constitutional numbering requirement because Mr. Womack knew or should have known about the numbering of the ballots before the runoff election was conducted. The trial court noted also that the numbering requirement, while mandatory before the election, would only be directory after the election.
The trial court dismissed Mr. Womack’s counterclaim and amended counterclaim under Ark. R. Civ. P. 12(b)(6) for failure to state sufficient facts upon which relief could be granted. According to the trial court, Mr. Womack’s counterclaim and amended counterclaim did not sufficiently allege that the outcome of the election would be different if the trial court were to rule in his favor on his claims for affirmative relief. Specifically, the trial court found that in a majority of instances where voting irregularities were alleged to have occurred, the pleadings did not allege for whom the questioned votes were cast. Despite dismissing the counterclaim and amended counterclaim for failure to state a claim, the trial court proceeded to rule on the merits of each point raised by Mr. Womack and concluded that Mr. Foster’s margin of victory would be reduced by 37 votes, that is to 473 votes. Thus, even when the trial court reached the merits of Mr. Womack’s claims for affirmative relief, Mr. Foster remained the winner of the election.
Mr. Womack now brings this appeal from the trial court’s judgment and raises several assignments of error. On September 9, 1999, we granted Mr. Womack’s motion to advance the appeal on the docket and establish an expedited briefing schedule. Womack v. Foster, 338 Ark. 514, 998 S.W.2d 737 (1999) (per curiam).
Section 3 of Amendment 50 to the Arkansas Constitution.
For his first point on appeal, Mr. Womack argues that the Ouachita County Election Commission failed to record the voter number on any of the absentee ballots or the ballots cast on election day as required by Amendment 50, section 3, to the Arkansas Constitution, which states:
In elections by ballot every ballot shall be numbered in the order in which it is received, the number shall be recorded by the election officers on the list of voters opposite the name of the elector who presents the ballot, and the election officers shall be sworn or affirmed not to disclose how any elector voted unless required to do so as witnesses in a judicial proceeding or a proceeding to contest an election.
Ark. Const, amend. 50, § 3 (emphasis added). The number referred to in section 3 is the “voter number,” that is, the number assigned to each voter in the order of his or her appearance at the polling place, or in the case of absentee voting, in the order that each outer absentee-ballot envelope is opened and the voter’s name is read aloud from his or her voter statement. Ark. Code Ann. §7-5-416 (Supp. 1997).
The trial court ruled that the runoff election in Ouachita County was by machine and not by ballot. Thus, Ark. Const, amend. 50, § 3, did not apply to that election, and voter numbers were not required to be recorded on the ballots. Mr. Womack argues that the election at issue was conducted by ballot and that the trial court erred in holding that it was by machine. The voters in this election marked ballots printed on paper with a pencil. The ballots were then fed into a machine known as the American Information Systems Machine (“AIS machine”) for the purpose of tabulating the votes.
Two methods of voting are established by the Arkansas Constitution. Section 2 of Amendment 50 to the Arkansas Constitution states that “all elections by the people shall be by ballot or by voting machines which insure the secrecy of individual votes.” As previously stated, section 3 of Amendment 50 prescribes how ballots shall be numbered in elections by ballot. Whereas, section 4 of Amendment 50 delegates to the General Assembly the power to prescribe rules in elections by voting machines: “voting machines may be used to such extent and under such rules as may be prescribed by the General Assembly.”
The General Assembly has enacted statutes governing election by voting machines. See Ark. Code Ann. §§ 7-5-501 — 531 (Repl. 1993 and Supp. 1999). Pursuant to Ark. Code Ann. § 7-5-501, voting machines “may be acquired and used in any election conducted in a municipality or county upon the adoption of an ordinance therefore by the governing body of the municipality or the quorum court of the county.” The statutory specifications for voting machines provide that the machine must be constructed not only to perform the tabulation of votes, but the voter must also be able to perform the physical act of voting “on the machine.” Ark. Code Ann. § 7-5-504 (Repl. 1993).
Elections by paper ballot are also the subject of certain statutory provisions. For example, Ark. Code Ann. § 7-5-208(b) (Supp. 1999) provides that “[e]ach ballot shall be printed on paper with a perforated portion capable of being detached for use as the ballot stub.” At elections where paper ballots are used, the voters mark the ballot, and the votes are then calculated without the aid of a machine. Ark. Code Ann. §§ 7-5-309, 315 (Supp. 1999).
Sections 7-5-601 — 615 provide for yet another method of voting in a subchapter entitled “Electronic Voting.” Section 7-5-601 states:
The purpose of this subchapter is to authorize the use of electronic voting systems in which the voter records his votes by means of marking or punching one (1) or more vote cards, which are so designed that votes may be counted by data processing machines at one (1) or more counting places. In the enactment of this sub-chapter, the General Assembly recognizes that existing laws authorize the use of paper ballots or voting machines in elections of this state and that it is not the intention of this subchapter to repeal or modify any of those laws. It is the purpose of this subchapter to establish a method of marking vote cards and tabulating election results which shall be in addition and supplemental to the existing systems of voting by paper ballot or by voting machines as defined in Act 53 of 1963 [repealed].
See Ark. Code Ann. §§ 7-5-601 — 615 (Repl. 1993 and Supp. 1999). (emphasis added.)
We must first determine what method of voting was used in the March 30, 1999 runoff election. Ouachita County voters voted by making a mark on a printed vote card with a special pencil, much like voting was done on paper ballots in the days before any type of mechanical or electronic equipment was used. Once the voters marked their vote cards with the special pencil, the vote cards were fed into the AIS machine for tabulation. This was clearly an “electronic voting system” as described in section 7-5-601. Amendment 50, however, only recognizes elections by ballot and elections by voting machine and does not recognize elections by an “electronic voting system.” Nonetheless, Mr. Womack argues that this “electronic voting system” should be considered voting by ballot because the vote cards are used for the actual voting and the AIS machine is only used for the tabulation of votes. We must therefore decide whether the Amendment 50 numbering requirement applies to electronic voting systems such as the one used in Ouachita County.
Electronic voting systems merely tabulate voting cards that have been filled out by the voter in the same way that a paper ballot would be filled out. In essence, the voter is voting by paper ballot. On the other hand, when a voter uses a voting machine, the voter is actually performing the physical act of voting on the machine, and no paper ballots or voting cards are involved. Additionally, Ark. Code Ann. § 7-5-604(b) (Repl. 1993) states:
So far as applicable, the procedures provided by law for voting by [means other than electronic voting systems] and the conduct of the election in regard thereto by the election officials, not otherwise inconsistent with this subchapter, shall apply to the system of electronic voting and tabulation as authorized in this subchapter.
We therefore hold that the electronic voting system used in the March 30, 1999 runoff election constituted an election by ballot and was subject to Amendment 50 s numbering requirement. The trial court erred in holding otherwise.
We now consider whether Ouachita County’s election officials complied with Amendment 50’s numbering requirement. In this runoff election, the election officials placed voter numbers on the ballot stubs as they were received. Mr. Womack asserts that the ballots were not properly numbered because the Arkansas Constitution requires that the voter numbers be placed on the ballots so that that the vote cast by a voter may be traced in an election contest. The question then is whether election officials complied with Amendment 50 when they placed the voter numbers on the ballot stubs, rather than on the upper portion of the ballots. Section 3 of Amendment 50 merely states that “every ballot shall be numbered in the order in which it is received...” and does not specify where the number must be placed on the ballot. Mr. Womack argues that the clear intent of that constitutional provision was for the voter number to be placed on the ballot in such a way that the voter’s vote could be determined if that vote were ever challenged. We agree.
The constitutional requirement of recording voter numbers on ballots began with Article 3, section 3, of the Arkansas Constitution of 1874. Perforated ballot stubs, however, were not implemented by the General Assembly until 1949. See Ark. Stat. Ann. § 3-818 (Repl. 1956). Prior to that time, the voter number was placed directly onto the ballot, resulting in the voter number and the voter’s vote being shown on one document. Ark Stat. Ann. § 3-911 (1947). After the election, one copy of the voter list was placed in the ballot box, which was given to the County Election Commissioners. Ark. Stat. Ann. §§ 3-919, 3-1008, and 3-1013. Under this system, there was no voter secrecy because the County Election Commissioners had access to the voter list, which contained the voter’s name and voter number, and the ballots that contained the voter numbers. On the other hand, election officials were able to trace votes for election-contest purposes, as was constitutionally required.
Pursuant to Act 353 of 1949, the lower one inch of each ballot had to be perforated so that it could be detached, and the ballots were to be numbered consecutively as they were printed, with the same number being placed on the lower portion of the ballot and on the upper portion of the ballot. Ark. Stat. Ann. §§ 3-818 — 3-819 (Repl. 1956). This number is referred to as the “ballot number.” Act 353 also required that the words “List of Voters Number” followed by a blank, be printed on the lower portion of the ballot. Ark. Stat. Ann. § 3-821. Under this system, election officials were able to determine how a voter voted by first looking at the voter fist to find the voter’s number. With that voter number, they could locate the ballot stub. The ballot number on the ballot stub would then lead them to the upper portion of a ballot which contained the same ballot number and the voter’s vote. Therefore, the statutory scheme allowed for tracing, but secrecy remained questionable.
In City of Little Rock v. Henry, 233 Ark. 432, 345 S.W.2d 12 (1961), we held that the use of voting machines in popular elections would not satisfy the numbering requirement of Article 3, section 3, of the Arkansas Constitution, because the machines were not capable of making a record of individual votes. Amendment 50, eliminating the constitutional difficulty for voting machines, was initiated and adopted in 1962. Walsh v. Campbell, County Judge, 240 Ark. 1034, 405 S.W.2d 264 (1966). Although Article 3, section 3, of the 1874 Arkansas Constitution was repealed by section 1 of Amendment 50, the numbering requirement of Article 3, section 3, was readopted verbatim as section 3 of Amendment 50, along with sections 2 and 4 of Amendment 50, authorizing the use of voting machines in elections under rules prescribed by the General Assembly.
The General Assembly amended the election laws of this state in 1969 because “the present election laws are ancient and outdated in part and have caused and are causing much confusion and controversy....” Emergency Clause of Act 465 of 1969. Act 465 again provided that the lower one inch of each ballot be perforated so that it could be detached and that the words “List of Voters Number,” followed by a blank, be printed on the lower portion of the ballot along with the printed ballot number. Ark. Stat. Ann. § 3-613 (b), (c), (f) (Supp. 1969). The ballot number was to be printed on the upper portion of the ballot, but it was to be covered with a black sticker that could only be removed on the order of a proper court. Ark. Stat. Ann. § 3-613 (c) and (d). This system provided for complete tracing in the case of an election contest, and also allowed for greater secrecy due to the use of a blackout sticker. Ballots were to be kept by the County Board of Election Commissioners after the election, and the stub boxes were to be kept by the County Treasurer. Ark. Stat. Ann. § 3-718. While each of these officials also had a voter list, the stubs and the ballots were separated so that secrecy was maintained.
The system established by the General Assembly in 1969 remained in effect until 1995. Act 461 of 1995 amended the subsequent codification of Ark. Stat. Ann. § 3-613, Ark. Code Ann. § 7-5-208, to provide that the ballot number be printed only on the ballot stub and not on the upper portion of the ballot. Ark. Code Ann. § 7-5-208 (Supp. 1999). Furthermore, Act 461 deleted the provision for printing the words “List of Voters number,” followed by a blank. Id. Election officials were only required to place the voter number on the stub end of absentee ballots. See Ark. Code Ann. § 7-5-416 (Supp. 1997). Section 7-5-208, as amended by Act 461 of 1995, also provided that the ballots be held by the County Board of Election Officials, the stubs be held by the County Treasurer, and the voter fist be filed with the County Clerk. Ark. Code Ann. § 7-5-317 (Supp. 1999). Under this system, total secrecy would be assured, but the ability to trace votes in the event of an election contest would no longer be available. This statutory scheme was in effect at the time of the runoff election in this case.
Although the General Assembly enacted Act 461 of 1995 to ensure total secrecy and foreclose the tracing of votes, Amendment 50 to the Arkansas Constitution still requires the numbering of ballots in elections by ballot. In City of Little Rock v. Henry, supra, we addressed that particular constitutional provision, albeit while it was still Article 3, section 3, to the 1874 Constitution and before it was readopted as section 3 of Amendment 50. This court’s interpretation of the constitutional numbering requirement was succinctly expressed by Justice George Rose Smith in City of Little Rock v. Henry, supra:
It is perfecdy clear that the draftsmen of the constitution did not consider the numbering of the ballots to be a mere gesture having no practical significance. To the contrary, the matter was deemed so important that it was written into the constitution as a fundamental requirement in every election, not to be dispensed with by the legislature or by the courts.
When Section 3 of Article 3 is studied as a whole the reason for the mandatory numbering of the ballots cannot be open to doubt. If the number of each ballot is recorded alongside the voter’s name it becomes possible in an election contest to open the ballot box and determine how each person voted. Thus if an election should apparently be decided by a margin of ten votes and it is shown that twenty ineligible persons voted, the numbering of the ballots enables the courts to declare the winner with certainty. Obviously this clause in the constitution is an effective precaution against fraud and a valuable safeguard to the purity of elections.
233 Ark. at 436, 345 S.W.2d at 15. Thus, section 3 of Amendment 50 does not merely require that voter numbers be placed on the ballots or ballot stubs in a manner that would have no practical significance. Rather, the purpose of the constitution’s numbering requirement in elections by ballot is to allow for the tracing of votes in the event of an election contest.
With the abolition in 1995 of the statutory framework established by Act 465 of 1969 that required the printing of a ballot number on the upper and lower portions of the ballot and the insertion of the voter number on the ballot stub, there is no longer a statutory scheme that allows for the tracing of votes. Moreover, the absence of a ballot number on the upper portion of the ballot also forecloses tracing when the voter number is placed on the stub end of absentee ballots, as required by Ark. Code Ann. § 7-5-416. We therefore hold that, in the absence of a statutory scheme that allows for the tracing of votes, compliance with Amendment 50’s numbering requirement in elections by ballot mandates that the voter number be placed on the upper portion of the ballot so that the purpose of that amendment may be accomplished; that is, so that in an election contest it will be possible to determine how a voter voted.
With regard to the impact of this holding on secrecy, we acknowledge again, as we did in City of Little Rock v. Henry, supra, “that the secrecy of the ballot is better protected by the voting machine than by our traditional method of balloting, since the use of the machine prevents anyone else from ever discovering how an elector voted. But this circumstance is offset by the fact that the draftsmen of the constitution, with the knowledge available to them in 1874, chose to subordinate the secrecy of the ballot to the purity of the election.” Id. Likewise, the drafters of Amendment 50, with the knowledge available to them in 1962, chose to continue to subordinate the secrecy of the ballot to the purity of the election in the case of elections by ballot.
In this case, the ballots for the March 30, 1999 runoff election for Ouachita County Municipal Judge were printed in accordance with the statutory provisions that foreclose the tracing of votes. That is, the ballot numbers were printed only on the ballot stubs. On the day of the election, voter numbers were only recorded on the stubs and not on the upper portion of the ballots, thus making it impossible to trace votes in an election contest. Under these circumstances, we must conclude that Amendment 50’s numbering requirement was violated by Ouachita County officials.
With regard to a remedy for this constitutional violation, Mr. Womack asks this court to void the entire election. It is well settled that prior to an election, the provisions of the election laws are mandatory. Doty v. Bettis, 329 Ark. 120, 947 S.W.2d 743 (1997). In contrast, after the election has occurred, the provisions of the election laws are directory only. Id. See also Swanberg v. Tart, 300 Ark. 304, 778 S.W.2d 931 (1989). It is also well settled that the courts do not favor disenfranchising a legal voter because of the misconduct of another person, such as an election official. Ashcraft v. Cox, 310 Ark. 703, 839 S.W.2d 219 (1992); Allen v. Rankin, 269 Ark. 517, 602 S.W.2d 673 (1980). In Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992), we reiterated the election rule that applies when the results of an election are challenged after the election:
[T]his court has held many times that elections will not be invalidated for alleged wrongs committed unless those wrongs were such to render the result doubtful. Put in other terms, we have said that the failure to comply with the letter of the law by election officers, especially in matters over which the voter has no control, and in which no fraud is perpetrated, will not as a general rule render an election void, unless the statute expressly makes it so. In sum, the courts do not favor disenfranchising a legal voter because of the misconduct of another person.
310 Ark. at 434, 837 S.W.2d at 461 (citations omitted).
In the case at hand, both parties alleged widespread fraud and misconduct with regard to the absentee votes that were cast in the election. Of the more than 6,000 votes cast in the election, about 1,000 votes were cast by absentee ballot; whereas, over 5,000 voters cast their votes at the polls, either on election day or during the early voting period. No fraud or misconduct was alleged regarding those votes. Flowever, Mr. Womack seeks to have the entire election voided. To void the entire election because of the misconduct of the election officials would undermine the freely expressed will of the majority of the voters. This we cannot do. Doty v. Bettis, supra; Reichenbach v. Serio, 309 Ark. 274, 830 S.W.2d 847 (1992).
Failure of counterclaim and amended counterclaim to state a cause of action.
For his second point on appeal, Mr. Womack argues that the trial court erred in dismissing his counterclaim and amended counterclaim. The trial court dismissed Mr. Womack’s counterclaim and amended counterclaim pursuant to Ark. R. Civ. P. 12(b)(6) for failure to state facts upon which relief can be granted. The trial court ruled that Mr. Womack did not allege that by invalidating the votes of the voters named or referenced in the pleadings that a different election result would occur; and that in a majority of instances where voting irregularities were alleged to have occurred, the pleading did not allege for whom the voter voted.
Election contests are governed entirely by statute. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973). As such, they are statutory or special proceedings under Ark. R. Civ. P. 81. Thus, the rules of civil procedure do not apply where a statute specifically creates a right, remedy, or proceeding that provides a different procedure. See Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992).
In construing Ark. Code Ann. § 7-5-801 (d) (Repl. 1993) (and its predecessor provision), this court has held that a claim for affirmative relief in an election contest must state a prima facie case and plead sufficient facts to give the other party reasonable information as to the grounds of the contest. McClendon v. McKeown, 230 Ark. 521, 323 S.W.2d 542 (1959). The pleading must do more than merely state generalities or conclusions of law to the effect that illegal votes were cast. Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967). To state a cause of action for affirmative relief in an election contest, one must name the voters who allegedly cast invalid ballots, allege that they voted for the other candidate, and allege that the total of the invalid votes is sufficient to change the outcome of the election. Id.; Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980). We recently reaffirmed these requirements for stating a claim for affirmative relief in election-contest cases. King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (1999). At a minimum, the complaint for affirmative relief must include the number of votes received by each candidate, so that it appears, after subtracting the alleged invalid votes, that the claimant has more votes than his opponent. Id.
In this case, Mr. Womack’s counterclaim and amended counterclaim made several requests for affirmative relief. Specifically, he asked the trial court to invalidate all unchallenged absentee ballots that were not marked by election officials in accordance with Amendment 50, section 3, to the Arkansas Constitution. He also asked the trial court to invalidate numerous absentee ballots because of alleged fraudulent and illegal acts on the part of Mr. Foster’s campaign workers in the handling of applications for absentee ballots and absentee-ballot materials. Many of these allegations failed to name the voters who allegedly cast the invalid ballots. Voters alleged to have been wrongfully disenfranchised were also not identified. Moreover, in those instances where voters were identified by name, Mr. Womack failed to allege whom they voted for in the runoff election. Without that information, we cannot conclude from the face of the counterclaim and amended counterclaim whether Mr. Womack would have had more votes than his opponent. Finally, the concluding request for relief in both the counterclaim and the amended counterclaim stated as follows:
Upon hearing the competent evidence in this cause, the Court will come to the conclusion that more qualified, proper votes were cast for Womack than were cast for Foster.
This conclusory statement clearly fails to state a cause of action.
This case is controlled by our decision in Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965), where the plaintiff omitted from his complaint which candidate benefited from the illegal votes. Instead, the complaint set out the total votes per candidate and then asserted that 52 named persons voted in an absentee box and were not qualified electors and that 196 named persons voted in precincts in which they did not reside. The trial court sustained a demurrer, and we affirmed. We held that the complaint did not state a cause of action because the plaintiff did not allege whether the contested votes were cast for the other candidate or that the election results would be different if those votes were set aside. Likewise, Mr. Womack’s counterclaim and amended counterclaim did not allege whether all of the contested votes were cast for his opponent or that, after subtracting the alleged invalid votes, he would have had more votes than his opponent.
Although Mr. Womack’s counterclaim and amended counterclaim asserted numerous general and conclusory allegations of serious misconduct and fraud on the part of Mr. Foster’s campaign workers, we conclude that neither pleading stated a cause of action for affirmative relief in an election contest. Thus, we affirm the trial court’s dismissal of Mr. Womack’s counterclaim and amended counterclaim.
Invalidation of 495 votes for failure to state a reason for voting absentee.
Based on the allegations set forth in Mr. Fowler’s complaint and amended complaint, and the testimony and evidence presented at the trial, the trial court invalidated a total of 518 absentee votes, 517 of which were votes cast for Mr. Womack. 495 of those absentee votes were invalidated because the voters did not state a reason for voting absentee on their applications for an absentee ballot. Because these 495 votes for Mr. Womack make up the majority of the votes invalidated by the trial court, we consider them first.
Arkansas Code Annotated section 7-5-402 (Supp. 1999) provides that only the following persons may cast absentee ballots: “(1) Any person who will be unavoidably absent from his voting place on the day of the election; and (2) Any person who will be unable to attend the polls on election day because of illness or physical disability.” The absentee-ballot application form provided by the county clerk and used by the voters in this case was substantially similar to the form set out in Ark. Code Ann. § 7-5-405 (Supp. 1997). On that form, each voter was asked to check one of two reasons listed in section 7-5-402 that qualify a voter to cast an absentee ballot:
Because I
_ will be unavoidably absent from my voting place on
election day, OR
_ will be unable to attend the polls on election day
because of illness or physical disability,
I am requesting that you provide me with the appropriate absentee ballot(s) for the following elections.
The trial court did not err when it threw out 495 votes for Mr. Womack because the voters who cast those votes failed to indicate a statutory reason for voting absentee on their absentee-ballot application. In Roach v. Kirk, 228 Ark. 958, 311 S.W.2d 525 (1958), we held that a voter who failed to state a reason for being absent from the polls on his absentee-ballot application was disqualified from voting absentee. Likewise, in this case, the failure of 495 voters to indicate a statutory reason for voting absentee on their absentee-ballot applications disqualified them from casting absentee ballots.
Mr. Womack argues that even though these voters may have violated our election laws by not indicating a reason for voting absentee on their absentee-ballot applications, their votes should not be invalidated for such “technical failures.” We disagree. We have held that there must be strict compliance with statutory provisions regarding the application for and casting of absentee ballots, even if the challenge is brought after the election has occurred. Bingham v. City of Eureka Springs, 241 Ark. 477, 408 S.W.2d 607 (1966). See also Martin v. Hefley, 259 Ark. 484, 533 S.W.2d 521 (1976); Phillips v. Melton, 222 Ark. 162, 257 S.W.2d 931 (1953); Logan v. Moody, 219 Ark. 697, 244 S.W.2d 499 (1952). Furthermore, there is no merit to the argument that these absentee votes should not be invalidated because voters filled out their absentee-ballot applications based upon incorrect advice given by the county clerk’s office. The absentee-ballot application form provided to each voter in this case was clear and accurate. Nothing on that form prevented a voter from knowing what information was being requested, or from properly inserting the requested information on the form.
Because we have determined that the trial court correctly invalidated 495 votes cast for Mr. Womack, only twenty-three votes remain at issue. Many of those votes were invalidated by the trial court for several reasons. We will now address various other reasons given by the trial court to invalidate votes cast for Mr. Womack.
Invalidation of 119 absentee votes for failure to attach medical affidavits.
The trial court also declared 119 votes cast in favor of Mr. Womack to be invalid because the absentee voters failed to attach medical affidavits to their absentee-ballot application forms. The trial court relied on Ark. Code Ann. § 7-5-405 (Supp. 1997) in ruling that the attachment of medical affidavits to absentee-ballot application forms was mandatory in certain circumstances. Mr. Womack contends that medical affidavits were not required. We disagree.
As previously stated, the absentee-ballot application form provided by the county clerk and used by the voters in this case was substantially similar to the form set out in Ark. Code Ann. § 7-5-405 (Supp. 1997). On that form, each voter must indicate one of five methods listed in section 7-5-405 for delivering the absentee-ballot application to the county clerk:
I am delivering this application by: [please check which one]
_ personally delivering this application.
_ mailing this application.
_ authorizing my relative or designated bearer, (please insert name)_, to deliver this application.
_ authorizing (please insert name)_as my agent, to deliver this application, as I am medically unable to deliver it. An affidavit verifying my medical status as unable to deliver the application or to vote on the day of the election is attached.
I am transmitting a signed facsimile of this application by facsimile machine transmission over telephone lines to the office of the county clerk.
(Emphasis added.)
The plain language of section 7-5-405 and the absentee-ballot application form indicate that an affidavit verifying the voter’s medical status is required when the absentee voter authorizes an agent to deliver his or her application to the county clerk. On the other hand, if the absentee voter chooses any of the other four methods for delivering the absentee-ballot application, a medical affidavit is not required by section 7-5-405. This interpretation is supported by Ark. Code Ann. § 7-5-403 (a)(2)(A) (Supp. 1997), which specifically lists the only ways that an application for absentee ballot may be delivered to the county clerk when the form prescribed in section 7-5-405 is used:
(2) Delivery of the request for an absentee ballot to the county clerk may be made in one (1) of the following ways, and in no other manner:
(A) For applications submitted using the form prescribed in § 7-5-405:
(i) In person at the office of the county clerk . . .
(ii) Applications by mail . . .
(iii) A designated bearer may deliver the completed application to the office of the county clerk . . .
(iv) (a) A person declared as the authorized agent of the applicant may deliver the application to the office of the county clerk
(b) An authorized agent must submit to the county clerk an affidavit of the administrative head of a hospital or nursing home located in this state that the applicant is a patient of the hospital or nursing home and is thereby unable to vote on the election day at his or her regular polling site.
(c) A copy of the affidavit shall be retained by the county clerk as an attachment to the application for an absentee ballot;
(v)(a) An application for absentee ballot may be requested by facsimile machine transmission . . .
(b)(1) The completed facsimile-transmitted application must be received in the office of the county clerk ....
Thus, a medical affidavit is required only when the voter delivers the application by means of an authorized agent. Furthermore, in order to utilize that manner of delivery, the voter must be in a hospital or nursing home. Ark. Code Ann. § 7-5-403 (a)(2)(A)(iv).
The record in this case indicates that for all 119 absentee votes invalidated by the trial court, the voters indicated on their absentee-ballot applications that their applications would be delivered to the clerk by authorized agents. However, each of those voters failed to attach the required medical affidavit, notwithstanding the fact that such a requirement was clearly stated on the absentee-ballot application form. We reiterate once again that strict compliance with absentee voting laws is required under these circumstances. Bingham v. City of Eureka Springs, supra. Therefore, we hold that the trial court correctly invalidated 119 absentee votes cast in favor of Mr. Womack because the voters failed to attach medical affidavits to their absentee-ballot application forms.
Invalidation of four votes based on mental incompetency.
The trial court found that four absentee voters were incompetent and declared that their votes were invalid. Article 3, section 5, of the Arkansas Constitution states that “[n]o idiot or insane person shall be entitled to the privileges of an elector.” Also, Amendment 51, section 11(a)(6), states that the registration of voters who have been adjudged mentally incompetent by a court of competent jurisdiction shall be canceled. Mr. Womack argues that there was insufficient evidence of incompetence to support the trial court’s invalidation of these four votes. When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999); Arkansas Dep’t of Human Servs. v. Spears, 311 Ark. 96, 841 S.W.2d 624 (1992). In reviewing the findings of fact by a trial court, we consider the evidence and ail reasonable inferences therefrom in a light most favorable to the appellee. Jernigan v. Cash, 298 Ark. 347, 767 S.W.2d 517 (1989).
Robert McKoin’s vote was invalidated after the trial court heard testimony that he suffered from Alzheimer’s disease and dementia and had no short-term memory. Beadie Sanders’s vote was disqualified upon testimony that she was a severe stroke victim and could not walk or talk, was unaware of her surroundings, and had no awareness of the election. Merdis Moore’s vote was disqualified due to evidence that she was afflicted with Alzheimer’s disease and was unable to communicate or mark her own ballot. With regard to the competency of Annie Dempsey, the Ouachita County Probate Court entered an order on January 6, 1999, appointing a guardian for her because it found that she was “senile, and her intellectual capacity, ability to reason, and emotional status are markedly impaired to the point where she is no longer able to make decisions for herself.”
Mr. Womack first argues that the appointment of a guardian does not mean that Annie Dempsey is incompetent. Incapacitated persons for whom a guardian is appointed are not presumed to be incompetent. Ark. Code Ann. § 28-65-106. However, the probate court made specific findings that Ms. Dempsey was incompetent. Thus, the trial court’s finding of incompetency in this case was not based on a presumption. Mr. Womack also cites Sparks v. First National Bank, 242 Ark. 435, 413 S.W.2d 865 (1967), for the proposition that professional evidence is required in order for the court to find that someone is incompetent. The holding in that case is inapposite because it dealt with a statutory requirement in guardianship proceedings. Based upon the evidence noted above, we conclude that the findings of the trial court are not clearly erroneous.
Invalidation of four votes based on felony convictions.
The trial court invalidated the votes of four absentee voters because they were convicted felons. Amendment 51, section 11(a)(4), of the Arkansas Constitution, states that it is the duty of the registrar to cancel the registration of voters “who have been convicted of felonies and have not discharged their sentence or been pardoned.” Mr. Foster had the burden of proving that convicted felons voted in the election. City of Newport v. Smith, 236 Ark. 626, 367 S.W.2d 742 (1963). As previously mentioned, he introduced certified copies of the criminal judgments and commitment orders entered against four individuals, thereby disqualifying them as voters.
Mr. Womack contends on appeal that there was no proof that the individuals whose criminal records were introduced actually voted in the election by absentee ballot. However, as Mr. Foster points out, such evidence was introduced and it was sufficient. For each of these individuals, Mr. Foster introduced evidence showing that the birth date or address on the individual’s absentee-ballot application or voter statement matched the birth date or address on the criminal records. The name on each individual’s absentee-ballot application or voter statement also matched the name on his or her criminal record.
Once again, when a case is tried by a circuit court sitting as a jury, our inquiry on appeal is whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Raker, supra. There was abundant evidence from which the trial court could find that these four felons voted absentee. We conclude that the trial court’s findings in that regard are not clearly erroneous.
Next, Mr. Womack argues that proof of a felony conviction alone is not sufficient to invalidate the votes. Amendment 51, section 11, requires the circuit clerk, upon the conviction of any person of a felony, to notify the registrar. The registrar then has a duty to cancel that voter’s registration and notify the voter. Mr. Womack asserts that this process was not followed for these four voters, and as a result, they were still qualified to vote despite being felons. Specifically, he argues that “any individual is permitted to continue voting until his name is removed from the registration rolls and he is notified by the clerk of such action.” However, Mr. Womack cites no authority in support of this argument. We have said on numerous occasions that we will not consider the merits of an argument if the appellant fads to cite any convincing legal authority in support of that argument. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998). Mr. Womack’s failure to cite authority or make a convincing argument is sufficient reason for affirmance of the trial court’s ruling on this point. Williams v. Martin, 335 Ark. 163, 980 S.W.2d 248 (1998). It is certainly not apparent without further research that this argument is well-taken. Id.
Finally, Mr. Womack contends that Sheree Jenkins had completed her sentence at the time of the election and, thus, was able to vote. A felon who has discharged his or her sentence is able to vote. Arkansas Constitution, Amendment 5, section 11. We cannot say that Ms. Jenkins had discharged her sentence at the time of the election. The judgment and commitment order reflects that she was sentenced to the Arkansas Department of Correction on July 29, 1992, and that the circuit court suspended imposition of any additional sentence for a period of five years. We, therefore, conclude that it was not error for the trial court to invalidate the votes of four absentee voters because they were convicted felons.
Invalidation of three votes based on nonresidency.
The trial court invalidated the votes of four absentee voters because they were nonresidents of Ouachita County at the time their votes were cast. Mr. Womack argues that the trial court erred in canceling three of these votes. Specifically, he asserts that Franklin A. Gaston, Jr., Neva Jo Gaston, and Kelly Kendall intended to claim Ouachita County as their residence.
Arkansas Code Annotated § 7-5-201 (Supp. 1997) provides that:
(a) ... The person shall be eligible to vote only in the county in which he resides on the date thirty-one (31) calendar days prior to the election, unless specifically exempted under § 7-5-406.
(b) Residency shall generally be that place where one lives and works for a period of time, notwithstanding that there may be an intent to move or return at some future date to another place. Persons who are temporarily living in a particular place because of a temporary work-related assignment or duty post, or as a result of their performing duties in connection with their status as military personnel, students, or office holders, shall be deemed residents of that place where they establish their home prior to beginning such assignments or duties.
(c) No person may be qualified to vote in more than one (1) precinct of any county at any one (1) time.
We have previously stated that there are two factors to consider in resolving the validity of voting residence. Pike Co. Sch. Dist. v. Pike Co. Ed. Bd., 247 Ark. 9, 444 S.W.2d 72 (1969). First, we look at the intent of the voter with respect to residency. Id. Second, the conduct of the voter must be reasonably consistent with his or her asserted residency. Id. This is a question of fact. Accordingly, we will affirm the trial court’s findings unless they are clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of witnesses. Springdale Winnelson Co. v. Rakes, supra.
There was testimony at the trial that Franklin A. Gaston, Jr., and Neva Jo Gaston sold their house in Ouachita County and moved to Garland County in August 1998. They had no plans to move back to Ouachita County. However, Mr. Gaston continued to work four days each month in Ouachita County. He also owned property in Ouachita County. There was also testimony that Kelly Kendall moved to Little Rock in June 1998, where she maintained her own apartment and worked five days a week. Her employment was considered to be on a trial basis, until such time as she proved her worth and was awarded a permanent position. She continued to assess her personal property in Ouachita County, receive mail there, and maintain phone service there. In view of this testimony, we cannot say that the findings of the trial court on residency are clearly erroneous. Nor can we say that the trial court erred in invalidating the votes of four absentee voters because of their non-residency in Ouachita County at the time of the election.
In affirming the trial court’s judgment in this case, we also note our agreement with the following conclusions expressed by the trial court in its findings of fact, conclusions of law, and judgment:
The laws dealing with absentee voting have a very obvious purpose, and they cannot be ignored by the unscrupulous campaign worker, the County Clerk’s office, or the Secretary of State. It borders on the absurd for anyone to assume that absentee voting and “early” voting should be governed by the same rules. “Early” voting does nothing more than offer the voter the opportunity to do early what he or she would otherwise do on election day: Go vote in person. It offers no additional opportunity for fraud. On the other hand, absentee voting offers all sorts of opportunity for fraud, as was so vividly seen in this election. This can be no better illustrated than Sylvester Smith carrying around 30 unmarked absentee ballots, looking for the persons whom they were intended. Both election laws and criminal laws were violated in this election, none of which would have been possible had a strict adherence to the clear requirements of the statute been demanded. Ignoring the law by those chosen to enforce it, or even slack enforcement by those persons, invariably brings on increased violations — and the innocent voter suffers.
In all fairness, had the entire absentee box been challenged by the two contestants, as plaintiff offered to do on election night but which defendant was unwilling to do, the vast majority of all the absentee voters would have been invalidated. That’s how widespread the abuse of the process was. While Sylvester Smith and Randall Ferguson were the most obvious and most active abusers, both sides are guilty, if not in a criminal sense, certainly in a practical sense. Both sides took advantage of the fact that the law wasn’t being enforced, the defendant far more than the plaintiff. Without doubt, had the entire box been challenged, the ultimate result would have been the same, Foster would have won, but at least each voter could have been told why his or her ballot was invalid. Nevertheless, it is this court’s hope that the next election will see every voter go to the polls in person on election day, vote early, or cast a valid absentee ballot which expresses the choice of the voter, not some vote hustler; that those charged with enforcing the election rules will do so; that those intent on abusing the rules will know that they will not succeed and that there is a price to pay for those trying.
Affirmed.
Arnold, C.J., Brown, J., and Special Justice Bud Cummins concur.
Special Justice Walter Skelton joins the majority.
Corbin and Thornton, JJ., not participating.
Ballot materials included a ballot (with a ballot number printed on the back of the detachable ballot stub and the words “List of Voter’s Number” printed on the front of the detachable ballot stub), ballot envelope, voter statement, and outer envelope.
The trial court did not rule on Mr. Womack’s allegations of violations of the U.S. Constitution and federal civil rights and voting rights laws.
Contrary to the trial court’s alternative ruling, this argument was not waived by Mr. ‘Womack prior to the election. Until the election officials placed the voter numbers on the ballots on election day, either at the polling places or when the absentee-ballot envelopes were being opened, Mr. Womack could not have known that the numbering of the ballots might not comply with Amendment 50. See Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999).
We note that he does not ask this court to void all of the absentee votes, probably because Mr. Foster would clearly be the winner of the runoff election if all absentee votes were excluded.
We need not address the timeliness of Mr. Womack’s counterclaim as an election-contest petition because that issue has not been raised in this appeal.
Mr. Womack argues that the violation of Amendment 50 made it impossible for him to allege for whom the voters voted at the time he filed the counterclaim and amended counterclaim unless the votes were challenged. This argument, however, ignores the fact that at the pleading stage of an election contest, a contestant will not have access to the ballots. Only after the trial court hears the evidence and makes a determination that the ballots are invalid will the votes on those ballots be disclosed. | [
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LAVENSKI R. SMITH, Justice.
The State appeals the trial court’s acceptance of a guilty plea by Appellee Antonio Covell Singleton entered over the State’s objection. The State objected to entrance of the guilty plea, citing Ark. R. Crim. P. 31.1. The State contends that the trial court could not accept Singleton’s guilty plea because the State did not consent. The State asserts that Rule 31.1 requires the State’s consent before a defendant can waive a jury trial. The State reads the rule consistent with our recent cases and we must, therefore, reverse.
Facts
On March 9, 1999, the State charged Singleton with two felony counts of possession of a controlled substance, and one felony count of simultaneous possession of drugs and a firearm. In an August 27, 1999, hearing, Singleton tendered a guilty plea to the trial court. The trial court stated its intention to accept Singleton’s guilty plea over the objection of the State. The State argued that under Ark. R. Crim. P. 31.1, the trial court could not accept the guilty plea without the prosecution’s consent. The trial court entered the guilty plea and passed sentence. The State timely filed its notice of appeal.
Jurisdiction
The State’s ability to appeal criminal cases is limited. The State may file an interlocutory appeal based upon evidentiary rulings that suppress state’s evidence or permit evidence of a victim’s prior sexual conduct. Also, the State may bring a non-interlocutory appeal where two conditions exist: 1) the Attorney General believes that prejudicial error has occurred, and 2) the uniform administration of the criminal law requires this court’s review. Ark. R. App. P. — Grim. 3(b). State v. Murphy, 315 Ark. 68, 864 S.W.2d 842 (1993). We have previously held that issues similar to those in the instant case satisfy those criteria. State v. Vasquez-Aerreola, 327 Ark. 617, 940 S.W.2d 451 (1997). Hence, jurisdiction of this case is proper.
Guilty Plea Without Consent of the State
On appeal, the State argues that Rule 31.1, as interpreted by this court’s prior opinions, requires that the prosecutor consent to a defendant’s waiver of a trial by jury. The State is correct. Rule 31.1 provides, “No defendant in any criminal cause may waive a jury trial unless the waiver is assented to by the prosecuting attorney and approved by the court.” In Fretwell v. State, 289 Ark. 91, 708 S.W.2d 630 (1986), the defendant sought to plead guilty to capital-murder charges on the eve of trial, ostensibly to avoid imposition of the death penalty by the jury. The prosecutor objected and insisted on putting on the State’s proof of the defendant’s guilt. The court sustained the objection and proceeded to trial. In his appeal, Fretwell contended that the trial court should have had discretion to accept his guilty plea even without the prosecutor’s assent. The court stated, “[I]n Arkansas a felony defendant is not entitled to a trial to the court without the assent of the prosecutor.” Fretwell, 289 Ark. at 93-94. The Fretwell decision further stated, “The rule is clear. Criminal cases which require trial by jury must be so tried unless (1) waived by the defendant, (2) assented to by the prosecutor, and (3) approved by the court. The first two are mandatory before the court has any discretion in the matter. Here, the second requirement, assent by the state, was not had and the court was without discretion to hear the plea.” Id. The court went on to expressly decline to follow those jurisdictions that give a defendant an absolute right to waive a jury trial.
More recently, in Vasquez-Aerreola, we reversed a trial court’s decision to accept a defendant’s guilty plea, citing Fretwell. Vasquez-Aerreola reiterated the Fretwell holding that a trial court has no discretion to accept a felony defendant’s guilty plea over the prosecution’s objection. It is apparent from these cases that this court has interpreted Rule 31.1’s consent requirements to apply not only to a defendant’s election to be tried by the court as opposed to being tried by the jury, but also to the felony defendant’s decision to be tried at all. Our cases thus have viewed a guilty plea in the same manner as a request for waiver of a jury trial.
Failure to Cite the Applicable Rule in the Jurisdictional Statement
In response, Singleton makes five arguments opposing the State’s appeal. None of appellant’s arguments are availing. First, Singleton asserts the State is procedurally barred by its failure to cite the correct basis for appeal on its jurisdictional statement. The State admits the error in its reply brief, and counters that jurisdiction is proper under Ark. R. App. P. — Crim. 3(b) and (c).
Ark. Sup. Ct. R. l-2(c) and 4-2(a)(2) require an informational and jurisdictional statement. The proper form is set out in the accompanying notes, and is the one used by the State. The State marked ‘Interlocutory Appeal,’ when they should have marked ‘Criminal.’ Singleton cites no authority for the proposition that this type of defect requires dismissal of an appeal. We decline to do so now. When an appellant cites no authority or convincing argument in support of his theory, we will not reverse. McGehee v. State, 338 Ark. 152, 992 S.W.3d 110 (1999); Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998).
Double Jeopardy
Second, Singleton argues that regardless of the court’s authority to accept the plea, double jeopardy would attach because the trial court actually did accept his plea. He relies on Ark. Code Ann. § 5-1-112(2), which provides:
A former prosecution is an affirmative defense to a subsequent prosecution for the same offense under any of the following circumstances:
(2) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court. (Emphasis added.)
We hold Singleton has not been subjected to double jeopardy. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998). However, once set aside, a defendants plea of guilty, just as a verdict of guilty, does not constitute a conviction. Thus, in the instant case, where this court reverses the acceptance of a guilty plea, there is no conviction and, therefore, nothing to afford Singleton the protection of double jeopardy. Singleton stands in precisely the same position he occupied the day he tendered a guilty plea. Ford v. Wilson, 327 Ark. 243, 939 S.W.2d 258 (1997). Singleton is not being asked to stand trial for a crime for which he was acquitted, but rather for one to which he unsuccessfully tried to plead guilty.
Singleton cites Penn v. State, 57 Ark. App. 333, 945 S.W.2d 397 (1997), for the proposition that trial court error will not allow prosecution a second time. However, in Penn, the trial court committed an error resulting in entry of an acquittal. For the reasons cited above, this is inapplicable to the present case.
Appeal from a Guilty Plea
Singleton next argues that the State may not appeal a guilty plea, citing State v. Pylant, 319 Ark. 34, 881 S.W.2d 28 (1994). In Vasquez-Aerreola, this court previously discussed the language in Pylant relied on by Singleton and resolved the issue against the position asserted by Singleton. In Pylant, the trial court entered a guilty plea over the objection of the State, and the State filed an interlocutory appeal from denial of its motion for a jury trial. This court disposed of the case on grounds of lack of finality because the order on the motion was not a final judgment. We stated, “Aside from issues of finality, the law is well-established that, in general, there is no right to an appeal from a plea of guilty where the appeal constitutes a review of the merits of the plea itself, as in the instant case.” Pylant, 319 Ark. at 36. This language was cited, and this issue was discussed, in Vasquez-Aerreola. This court stated as to the cited language, “The State maintains that this language in Pylant is mere dictum. We agree. Pylant was decided on finality grounds, thereby making the quoted language obiter dictum.” Vasquez-Aerreola, 327 Ark at 624. This court went on in Vasquez-Aerreola to find that the trial court lacked authority to accept a guilty plea over the objections of the State. In Vasquez-Aerreola, the guilty pleas were vacated, and the case was remanded.
Appeals Demonstrating Trial Court Error
Singleton next asserts that the State has appealed a mixed issue of law and fact in violation of the principles set out in State v. Harris, 315 Ark. 595, 868 S.W.2d 488 (1994). The argument is flawed. The State has not appealed merely a discretionary error in application of law to facts but has appealed a judgment which the trial court lacked the discretion to make at all under current precedents.
The Right to a Jury Trial
Singleton’s fifth and final point on appeal is to simply request that this court overrule Vasquez-Aerreola, and to amend Rule 31.1 to allow a defendant to plead guilty and limit the prosecution to making recommendations on sentencing. He argues that the State has no right to a jury trial. He is correct. The State has no express constitutional right to a jury trial. However, under our current rules and cases interpreting them, it does have the option to refuse to consent to the defendant’s waiver of jury trial. Singleton acknowledges that defendants do not have the right to unilaterally waive a jury trial. Singer v. United States, 380 U.S. 24 (1965). A right to plead guilty may be conferred by statute or rule; however, there is no such rule or statute in Arkansas. Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1987).
Singleton asks us to reconsider Rule 31.1 and the Fretwell/Vasquez-Aerreola line of cases. This court does not lightly overrule cases and applies a strong presumption in favor of the validity of prior decisions. Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984) (citing Walt Bennett Ford, Inc. v. Pulaski County Special Sch. Dist., 274 Ark. 208, 624 S.W.2d 426 (1981)); Sanders v. County of Sebastian, 324 Ark. 433, 922 S.W.2d 334 (1996); McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998). We decline the invitation in the context of this case, but certainly comments and suggestions can be made to, the rules committee at any time.
Reversed and remanded. | [
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RAY Thornton, Justice.
Appellant Richard Ottis Carmichael was convicted of capital murder and sentenced to life imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1976), and our Ark. Sup. Ct. R. 4 — 3(j)(1), his attorney has filed a motion to withdraw and a brief stating that there is no merit to the appeal previously filed with this court. Appellant’s brief filed by counsel offers two rulings adverse to appellant and states that there are no meritorious grounds for appeal. The State agrees that there is no merit to appellant’s appeal and appellant has not filed a pro se brief arguing additional points for reversal. Based on our review of the issues raised by appellant, together with our consideration of the entire record pursuant to Ark. Sup. Ct. R. 4-3(h), we conclude that there is no merit to the issues raised by appellant, and further that there are no errors with respect to rulings adverse to appellant. Accordingly, we affirm appellant’s conviction and sentence, and grant counsel’s motion to be relieved.
The State charged appellant with capital murder for causing the death of Ms. Terry Kirton, alleging that he murdered the victim with the premeditated and deliberated purpose of causing her death. The evidence presented at trial revealed that police officers responding to a call from appellant at his apartment on the morning of September 9, 1997, found the victim’s partially covered body lying on the couch. Appellant told the officers that after a day of drinking together, he had gone to sleep and awoke to find Ms. Kirton unresponsive. He also volunteered that he had not killed her, a statement the officers found odd because her death was, at that time, considered only a “suspicious death,” not a homicide.
Over the course of the investigation, detectives conducted several interviews with appellant about the circumstances of the victim’s death. Initially, appellant told detectives that he had invited the victim over and they had gotten drunk and had sex several times during the day. He said that the last sex act had taken place on the couch and he had then fallen asleep. When he awoke, he found blood on the floor and on the toilet seat and could not rouse Ms. Kirton.
After the medical examiner began his autopsy of the body, he notified police that Ms. Kirton had suffered trauma to the anal area and that her death appeared to be a homicide. Officers then sought and received consent to search appellant’s apartment and discovered several items investigators described as “sexual devices,” including a pair of table legs wrapped in electrical tape and a length of plastic pipe attached to a pair of boxer shorts. Upon further questioning, appellant admitted that the couple had anal sex and that he had requested the victim use one of the devices on him, but he denied having used any foreign objects on her. He denied that she was bleeding when he went to sleep, or that he had harmed her in any way.
Three days later, after the investigating officers received the medical examiner’s report concluding that the cause of Ms. Burton’s death was homicide, appellant agreed to give police a third statement. He repeated his earlier version of meeting the victim in MacArthur Park and getting drunk and having “rough sex” with her in his apartment, but added that he had “lost control” during sex and had hit her, and that the two had fought. He also said that they had used the sexual devices found by the police on one another, including inserting one of them in the victim rectally. The medical examiner’s report had revealed that the cause of death was strangulation.
Sufficiency of the Evidence
The first adverse ruling we address is the trial court’s denial of appellant’s motion for a directed verdict. At the close of the State’s case, appellant moved for a directed verdict, arguing that the evidence was insufficient to establish that he had acted with premeditation and deliberation. The trial court denied the motion, and, because we find no error in this ruling, we affirm.
On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Cobb v. State, 340 Ark. 240, _ S.W.3d _ (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. The evidence may be either direct or circumstantial. Id. Only evidence supporting the verdict will be considered. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Whether the evidence excludes every hypothesis is left to the jury to decide. Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Id.
The evidence presented at trial was sufficient to support appellant’s capital murder conviction. Pursuant to Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Id. Premeditated and deliberated murder occurs when it is the killer’s conscious object to cause death and he forms that intention before he acts and acts as a result of a weighing of the consequences of his course of conduct. See Davis v. State, 251 Ark. 771, 475 S.W.2d 155 (1972). Premeditation is not required to exist for a particular length of time. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Id. Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the tnanner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id. One can infer premeditation from the method of death itself where the cause of death is strangulation. Id. (citing Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).
The autopsy revealed that the victim had numerous abrasions and bruises on her body and face, including a contusion to her skull and a laceration on her left ear. In addition, she suffered injuries to her liver and intestines consistent with having been hit or kicked. She also had extensive hemorrhages in her scalp tissue and in the inner aspects of her skull, which the medical examiner testified were consistent with having been punched or slapped and were sufficiently serious to cause a loss of consciousness.
The autopsy further revealed extensive bruising, distention, and lacerations to the anus and rectum, as well as a four-inch-long tear of the intestines and bowel. This was consistent with appellant’s statement to police with regard to the sexual devices that he had put the “big stick” up in her rectum “quite a ways.” Lastly, the autopsy indicated evidence of strangulation, including abrasions around the neck and hemorrhaging of the neck muscles. The conclusion drawn from the autopsy was that the victim died as a result of strangulation, with blunt force injuries to her head, abdomen, and rectum. The medical examiner opined that it would have taken between one and five minutes to strangle Ms. Kirton to death, and he concluded that the head, stomach, and rectal injuries occurred prior to death.
We conclude that the testimony of the medical examiner was sufficient to support the jury’s verdict of premeditation and deliberation as those terms are defined under Arkansas law. Despite appellant’s testimony that he was too drunk to recall much of what occurred, the undisputed evidence was that the victim died of strangulation and that prior to her death she was savagely beaten and sodomized with one or more of several large objects. Furthermore, the testimony of the medical examiner established that it would take anywhere from one to five minutes to cause her death by strangulation, sufficient time in which appellant would have been able to reflect upon his actions and their consequences. The jury could easily have inferred from the numerous injuries to the victim’s internal organs, as well as the autopsy evidence that she was strangled, that appellant acted with the purpose to cause her death. Mulkey, supra. The State introduced sufficient evidence to show that appellant acted with premeditation and deliberation when he killed Ms. Kirton, and, accordingly, the trial court’s denial of appellant’s request for a directed verdict was not erroneous.
Constitutionality of Statutes
The only other objection raised in this case was appellant’s motion to dismiss the capital murder charge because of its asserted overlap with the first-degree murder statute, Ark. Code Ann. § 5- 10-102 (Repl. 1997). Appellant argued at trial that the same conduct was proscribed in both statutes, thus rendering the capital murder statute unconstitutionally void for vagueness because it faded to give adequate notice of the proscribed conduct, thus violating due process and depriving him of equal protection under the law. In his motion to the trial court, appellant requested that the capital murder charge be dismissed, or, in the alternative, that the trial court omit the jury instruction on first-degree murder as a lesser-included offense to capital murder, offering only second-degree murder instruction in its stead. The trial court denied appellant’s motion.
The capital murder statute, Ark. Code Ann. § 5-10-101(a)(4) (Repl. 1997), provides that a person commits capital murder if: “With the premeditated and deliberated purpose of causing the death of another person, he causes the death of another person. . . . ”. Id. Murder in the first degree occurs when, “with a purpose of causing the death of another person, he causes the death of another person.” Ark. Code Ann. § 5-10-102(a)(2)(Repl. 1997). On numerous occasions, we have held that there is no constitutional infirmity in the overlapping of the “premeditated and deliberated” mens rea in the capital murder statute and the “purposeful” mens rea in the first-degree murder statute. Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997)(citing Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Greene v. State, 317 Ark. 360, 878 S.W.2d 384 (1994); Sanders v. State, 317 Ark. 328, 878 S.W.2d 391 (1994); Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992); Van Pelt v. State, 306 Ark. 634, 816 S.W.2d 607 (1991); Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); White v. State, 298 Ark. 55, 764 S.W.2d 613 (1989)). We have explained that it is impossible to avoid the use of general language in the definition of offenses, and that one or the other offense may be established depending on the testimony of witnesses. Id. We have consistently found no constitutional or other impediment to the discretion conferred by the “overlap” upon the State to choose between the two laws in charging a particular homicide. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348, cert. denied 502 U.S. 829 (1991).
Appellant concedes in his brief that he was not prejudiced by any alleged lack of difference between the mens rea of the two statutes. The jury was instructed on the additional charge of mur der in the second degree, but found appellant guilty of capital murder, thus never reaching the question of the lesser-included offenses. See AMI Crim. 2d 302 (“If you have a reasonable doubt of the defendant’s guilt on the charge of capital murder, you will then consider the charge of murder in the first degree”). We find no error in the trial court’s denial of appellant’s motion to dismiss on the basis of an asserted overlap between the capital murder charge and that of first-degree murder.
In conclusion, because we find this appeal to be without merit, counsel’s motion to be relieved is granted and the judgment affirmed.
Affirmed. | [
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Robert L. Brown, Justice,
concurring. I agree to grant the State’s motion for permission to file belated brief. I am troubled, however, by the five-month gap between the filing of appellant’s brief on August 16, 1999, and the tender of the State’s brief on January 24, 2000, especially since the appellant apparently is in prison. The State did not receive a copy of the appellant’s brief after it was filed. But the State, no doubt, did receive a copy of the briefing schedule from the Supreme Court Clerk, showing that the appellant’s brief was due in August 1999. This should have alerted the State to determine whether the appellant’s brief had indeed been filed. Had the State checked, this considerable delay in moving ahead on this appeal could have been avoided.
This is a Rule 37 appeal, and in order to file a Rule 37 petition, a petitioner must be in custody. See Ark. R. Crim. P. 37.1; Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). | [
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LAVENSKI R. Smith, Justice.
Attorney William Sherman appeals the order of the Pulaski County Probate Court disqualifying him as the attorney for the estate in an ancillary probate proceeding for decedent Earle L. Berrell, who died in Canada. The trial court disqualified Sherman after finding that Sherman appeared to represent not just the general interest of the estate but also the specific interest of one beneficiary to the detriment of other beneficiaries. Sherman argues three points on appeal. First, he contends that the legal arguments he made that were conducive to Arndt’s interests under the Canadian will did not justify disqualifying him from representing the estate in the ancillary proceeding. Second, Sherman argues that the trial court based its finding on insufficient evidence. Third, Sherman argues that he should be able to represent the personal representative in the appeal of this matter despite the fact that he testified below. We find merit in Sherman’s points and reverse.
Facts
Earle L. Berrell, age sixty-four, died on October 20, 1997, in Makepeace, Alberta, Canada. At the time of his death, Berrell possessed real and personal property in Canada and Pulaski County, Arkansas. Berrell executed his last will and testament on February 4, 1994, entirely in his own handwriting. This holographic will stated that Berrell had no children and named only one beneficiary, Erika Arndt. This wiE specificaEy stated:
This will makes null and void all previous wills and statements.
In the event of my death, I wish Erika Arndt of Makepeace Alberta to have all of my property both real and personal in both Canada and the State of Arkansas. This is to include the house at 24 Coolwood Dr. Little Rock, Ark. and all monies held by Craig-Crews Inc. Realty to the house, all insurance money — United States, Veterans Ins., Mutual of Minn. & Equitable Ins. Co. My interest in the house at Makepeace Alberta, and my profits derived from sale of my Plymouth Sundance and Delta Motorhome (unless she decides to keep them for personal use). She is to get my bank accounts and my death benefits that might be available. She is to further get my checks owing to me or cash. She is to get the proceeds from my RRSP and my stocks I have not sold held by Richardson-Greenshields — She is to pay my outstanding debts from these monies —
Signed this 4th day of February, 1994
/s/Earl L. BerreE
P.S. I am of sound mind and body and am not under any threat or coersion(sic).
/s/Earl L. BerreE
This will, unlike Berrell’s previously executed wills, did not mention Berrell’s two children from previous marriages, namely Edward James Berrell and Bonita Berrell Carrigo.
About four months after Berrell’s death, Arndt initiated Canadian probate proceedings, and the Canadian court appointed her the personal representative of the estate in Canada. She retained the Canadian law firm of Hoffinan Dorchik, which filed the necessary pleadings on February 13, 1998. In that a portion of Berrell’s estate was located in Arkansas, Arndt, through her Canadian attorneys, contacted Sherman, who had handled Berrell’s mother’s probate affairs in the 1980s, to open an ancillary probate proceeding in Arkansas. Upon being retained, Sherman filed the necessary papers with the Pulaski County Probate Court to open the ancillary probate. The original pleadings, filed on April 8, 1998, did not mention Berrell’s children. In those pleadings, Arndt requested that she be appointed the personal representative of the estate in Arkansas as well.
In a letter dated April 8, 1998, Sherman acknowledged receipt of a letter from Gordon Hoffman of Hoffman Dorchik in which Hoffinan apparently referred Arndt to Sherman to represent the estate in Arkansas. Sherman acknowledged that he had filed the ancillary probate, and detailed the filing and publication fees spent to date. In this letter, Sherman advised Hoffman that he had spoken to one of Berrell’s friends, Sharlett Craig, who managed Berrell’s property in Arkansas, and that Craig was holding $2,000 in escrow for the estate fees. Sherman also noted that he remembered that Berrell had a son, and requested that Hoffman find out whether this child had been adopted by Berrell. Sherman specifically advised Hoffman that the existence of a child not mentioned in the will could cause a problem in that Arkansas law allows a child pretermitted-heir rights to inherit when not specifically acknowledged in the will. Furthermore, Sherman indicated that his fees to handle the estate were $100 to $125 per hour, not to exceed the Arkansas statutory allowance to handle the estate. In this case, the Arkansas estate, valued at approximately $50,000, would not allow fees above $1,860.
Sherman filed an amended ancillary probate pleading on June 29, 1998, specifying that Berrell had two children who may be entitled to share in Berrell’s Arkansas estate property. Sherman followed up with a letter to the probate judge on July 18, 1998, in which Sherman advised the judge that Arndt was Berrell’s common-law wife in Canada, and that after the ancillary probate order is issued, he would send the statutory notice to Berrell’s son. Sherman also advised the judge that he was currently searching for the second child, a daughter, and would provide notice to her as well if she was located. Sherman further advised the judge regarding possible conflict-of-laws issues between Canadian and Arkansas law.
On August 4, 1998, the probate court issued an order granting and directing issuance of ancillary letters, but found that it would not be in the best interest of the estate in Arkansas to have Arndt remain as the personal representative for the ancillary probate because she resided in Canada. The court directed that an Arkansas citizen be appointed as personal representative. The court therefore appointed Craig personal representative in the Arkansas ancillary probate. Sherman continued as the ancillary estate’s attorney.
Once Berrell’s children were located, Sherman sent notice to them regarding the ancillary probate of their father’s estate in Arkansas. Sherman notified Edward Berrell and Bonita Berrell Carrigo by letters dated August 10, 1998, and December 14, 1998, respectively. Sherman included in the letters the necessary notice information required by Ark. Code Ann. § 20-40-111(c). Sherman also included additional information including copies of documents filed in the ancillary probate, and noted that Craig would take the position that Canadian law governs the disposition of the assets of the estate. Further, Sherman advised Edward and Bonita that they could have rights as pretermitted children because they were not mentioned in the will, and determination of this issue was up to the probate court.
On December 23, 1998, Craig filed a motion for determination of heirship and legal interests in assets. The pleading noted that Berrell’s holographic will did not mention his children and that under Arkansas law, this failure to mention the children could enable them to obtain rights to property in Arkansas as if Berrell had died intestate. Craig requested the court to determine what rights the children had to the property to advance the administration of the estate. Also on this date, Craig filed a motion to sell the real estate in Arkansas. Sherman sent a letter to Edward Berrell notifying him that he and Carrigo would probably be found heirs to the real estate, but not to the personal property, and that Arndt may have a dower interest in the real estate. As with the prior correspondence, Sherman informed Edward Berrell and Carrigo that the probate court would make these determinations.
On February 12, 1999, Carrigo, through her attorney Ann C. Donovan, filed her notice of intent to take against the will or to contest the validity of the will. She specifically requested to be a pretermitted heir and that the Arkansas court should determine Arndt’s status as a common-law wife. On March 3, 1999, the probate court issued an order requesting that the ancillary personal representative, Craig, file a trial brief laying out the issues which the court should address at the scheduled March 25, 1999, hearing to probate the estate. In response, Sherman wrote a letter to the probate judge on March 3, 1999, noting his concern that the issues involved might take more than two hours to address.
Craig, through Sherman, filed her trial brief as personal representative on March 10, 1999. In the brief, Craig identified the issues facing the court at the hearing, and opined that the personal property in Arkansas would probably be governed by the law of the domiciliary jurisdiction, namely Canada. However, the real property is subject to the law of Arkansas where it is located and would be subject to the pretermitted children’s rights because the will omitted them. In addition, Craig surmised that while Canada does not recognize common-law marriages, that case law in that province appears to be moving towards recognizing them. Craig contended that Arkansas law requires courts to construe the will to give effect to the testator’s wishes, and Berrell’s will wanted Arndt to have everything. Craig requested that the court consider whether she could testify about a conversation she had with Berrell in which he indicated that he wanted Arndt to have all of his property. In closing, Craig presented two alternative approaches for the court. One, the court could follow the strict language of the Arkansas statutes indicating that the domiciliary estate jurisdiction should govern, in which case Arndt should get all of the real estate or, two, the court could follow the common-law rule that the situs of the real property determines distribution, and the children should inherit the land.
Carrigo filed her response brief on April 7, 1999. In her brief, Carrigo noted that Canada does not have common-law marriages, but will recognize them from other locations, as will Arkansas. Furthermore, she noted that the Canadian probate court had not made a determination about Arndt’s status as a common-law wife. Carrigo also contended that the court should address additional issues. Specifically, Carrigo raised the issue of whether extrinsic evidence is permissible to show the intent of the testator, since the Uniform Rules of Evidence and Arkansas case law would prevent such evidence. Carrigo also questioned whether Sherman could represent both Arndt and the estate because he “filed the original application as attorney for Erika Arndt.” Carrigo asserted in this brief that this constituted a conflict of interest, and that the court should decide who Sherman represents. Craig, through Sherman, filed a reply brief on March 23, 1999, and attached the case of Pauliuk v. Pauliuk, [1986] 48 Alta. L.R.2d 25, for the proposition that common-law marriages are recognized in Alberta, Canada. Edward Berrell also questioned Sherman’s status.
Because of allegations of Sherman’s possible conflict of interest, the trial judge scheduled a phone conference with all of the parties and attorneys to settle the matter before the scheduled hearing. The phone conference began on April 13, 1999, but was postponed because of technical problems until the scheduled hearing. The judge also requested that the parties challenging Sherman’s representation submit formal motions which Carrigo did through her attorney on April 19, 1999. Carrigo also submitted proposed findings of fact, to which Sherman objected on April 19, 1999. Craig also filed a response to the motion to disqualify Sherman.
The court heard the matter on April 20, 1999, with all of the parties and attorneys present in the courtroom. During the hearing, Arndt, Sherman, Craig, and Carrigo testified. At one point, the court asked Sherman several questions regarding his perception of his duties and obligations as attorney for the estate. A portion of that dialogue follows:
The Court: Let me just ask you, Mr. Sherman, do you feel an obligation to the children, to Mr. Berrell’s children, as attorney?
Sherman: Of course, I do, Your Honor.
The COURT: And what is that obligation?
Sherman: My obligation, first and foremost is to show that they have complete notice of the proceeding and a chance to make their positions known, to be represented, and to have their issues, have their positions considered by the Court. I don’t think I have a duty to agree with them. In fact, I said to the Court in the briefs, this question, to me, is a very close question and it’s open. There’s no deciding precedent from the Arkansas Supreme Court.
The COURT: I guess I’m looking for something else from you. You have three people, two who may have the same interest, two children. Then you have Ms. Arndt. You seem to be advancing Ms. Arndt’s position with respect to the letters and so forth and what you’ve done in this case. Who is to advance the position of the children? Do you feel any responsibility to the children to advance their position, as well?
SHERMAN: I don’t think I can make — I’ve tried, as best I can, to show the Court the competing argument. I think, in general, Your Honor, I had concluded that the law of the situs would control the passage of realty. It wasn’t a final conclusion but it looked that way as I researched it. I was trying to notify Ms. Carrigo, just trying to locate her, so I could give her notice of the case. This evolved over time. The letters which have been introduced, most of them came in the spring of 1998 and I was not in touch with Ms. Carrigo or Mr. Edward Berrell. I wasn’t trying to keep them out. I was trying to locate them.
The COURT: Well, I’m not passing judgment on what you’ve done. I’m just trying to understand your intention with respect to what you’ve done thus far. Now, with respect to Erika Arndt, you’ve done more than simply notify her.
SHERMAN: She contacted me —
The COURT: But with respect to the children, you have not. Okay. Go ahead.
SHERMAN: She contacted me, her lawyers contacted me to handle the ancillary administration. Every case I’ve ever been involved in, it’s always ■—
The Court: When I speak of Erika Arndt, I mean Erika Arndt as a devisee or as a person who lived with Earle Berrell prior to his death. I’m not talking about her as the administrator in Canada. But when you look at the three of them as potential beneficiaries of this estate you’ve notified the children but with respect to Erika Arndt you’ve notified her and you have advanced her position.
Sherman: I think in the briefing, the positions I’ve taken as a lawyer concur with the position she has, yes. I think in the final analysis that’s where I am with the arguments.
The Court: Now, Ms. Arndt then didn’t have to hire a personal attorney to advance her position, but the children did, is that right? Because you’re representing the estate and not either of the potential beneficiaries of the estate. Now, you said that the children seem to have hired competent counsel to advance their positions. What about Ms. Arndt? She hasn’t had to hire a personal attorney to advance her position because it has been advanced by the attorney for the estate. Or has she? I don’t know of one.
After Sherman testified, Craig testified regarding her status as personal representative of the Arkansas ancillary probate. Carrigo also testified, stating that she received the letters from Sherman, and that Sherman had called her regarding the sale of the Arkansas real estate. Carrigo testified that she felt that Sherman was trying to pressure her into selling the property, and that she was concerned because Sherman had filed pleadings for Arndt. Sherman was then recalled to the stand by the trial judge, who again questioned him. The trial judge questioned Sherman’s use of the word “we” in the December 23, 1998, letter to Carrigo in which Sherman stated, “As you will see in the Motion to Determine Heirship, we have concluded that the Court will likely find that you and Edward James Berrell are heirs to the real estate, but not the personal property. Erika Arndt may have a dower interest in the real estate.” In response, Sherman answered that “we” included himself and Craig, the personal representative. The trial judge further questioned why Sherman seemed to communicate with Arndt, but not the children, regarding the sale of the property in Arkansas. Sherman testified that it was some time after the ancillary estate was opened before he actually found the children. Furthermore, Sherman responded that there was a concern that the house would deteriorate, but that the house could not and would not be sold without the concurrence of all interested parties.
After examination of the witnesses, the court issued its decision finding that Sherman should be disqualified as the attorney for the ancillary probate because “it would appear that his efforts have been directed toward advocating for Erika Arndt’s interests. The attorney for the estate has advanced the position of one potential beneficiary of the estate to the exclusion of the two children of the decedent.” The trial court entered this order on May 7, 1999. Sherman filed his Notice of Appeal the same day.
Standard of Review
We review a trial court’s decision to disqualify an attorney under the abuse-of-discretion standard. Seeco, Inc, v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1993); Berry v. Saline Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995). An abuse of discretion may be manifested by an erroneous interpretation of the law. Seeco, supra. We have held that the Model Rules of Professional Conduct are applicable in disqualification proceedings. Berry, supra; See also, Saline Memorial Hosp. v. Berry, 321 Ark. 588, 906 S.W.2d 297 (1995); Norman v. Norman, 333 Ark. 644, 970 S.W.2d 270 (1998). Disqualification can be warranted in the absence of an ethical violation. It is an available remedy to a trial court “to protect and preserve the integrity of the attorney-client relationship.” Burnett v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990). Yet, it is a drastic measure to be imposed only where clearly required by the circumstances. Burnett, supra.
I. Ancillary Probate Under Arkansas Law
In the instant case, it must be borne in mind that the action below is an ancillary probate proceeding. An ancillary administration is a separate but related proceeding to the administration of the decedent’s estate in the jurisdiction where the decedent died. The primary administration of the decedent’s estate in this case is occurring in Alberta, Canada. The ancillary proceeding serves to collect assets and pay debts of the decedent in that locality. Ancillary administration of an estate in Arkansas is governed by Ark. Code Ann. §§ 28-42-101 — 28-42-111. Under these code provisions, a foreign personal representative such as Arndt may file for ancillary letters in Arkansas by filing an authenticated copy of his or her domiciliary letters with the proper Arkansas probate court. Ark. Code Ann. § 28-42-102(a)(l). This foreign personal representative shall be given preference to become the personal representa tive in Arkansas unless the probate court determines that such appointment would not be in the best interest of the estate. Ark. Code Ann. § 28-42-102(b). If such a determination is made, as it was here, the court may order the issuance of ancillary letters here to a qualified person, other than the domiciliary personal representative, pursuant to Ark. Code Ann. 28-48-101 (b). Under Ark. Code Ann. § 28-48-101 (a), a “hierarchy” of qualified people to act as personal representative of the estate in Arkansas exists. Under Ark. Code Ann. § 28-48-101 (a), this order of priority includes:
(a)(1) To the executor or executors nominated in the will;
(2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty (30) days after the death of the decedent;
(3) To one (1) or more of the persons entitled to a distributive share of the estate, or his or her nominee, as the court in its discretion may determine, if application for letters is made within forty (40) days after the death of the decedent, in case there is a surviving spouse and, if no surviving spouse, within thirty (30) days after the death of the decedent;
(4) To any other qualified person.
In the instant case, the probate court appointed Craig, an Arkansas resident, as the ancillary personal representative. Craig managed Berrell’s property interests in Little Rock and was a logical choice as the ancillary personal representative under subsection (4) as “any other qualified person.” Sherman, who had filed the initial paperwork on Arndt’s behalf, continued as legal counsel for the appointed personal representative, Craig.
II. Sherman’s Duties to the Estate in the Ancillary Probate
Arkansas law requires the attorney retained by the personal representative to perform several legal tasks on behalf of the estate. Ark. Code Ann. § 28-48-108(d). One of the tasks is to give proper notice of the appointment of the personal representative to all persons having claims against the estate, including heirs and creditors, pursuant to Ark. Code Ann. § 28-40-111. The statute provides a form section (c) for that purpose. This form provides a basic notice of the proceedings, including the date of the will, the date of the death of the testator, the name of the personal representative, and notice of the time to file any objections to the will or claims against the estate.
The record reflects that Sherman provided this information and more to Berrefl’s children once they were located. In addition to the required notice information, Sherman informed them by letter that their father’s will was a holographic will that nominated Arndt as executrix and named her sole beneficiary of the assets of the estate. Sherman further explained that Craig, as ancillary personal representative, was taking the position that Canadian law applied to the will and distribution of the assets. However, Sherman indicated to both children and to the probate court that Berrell’s failure to mention either child in his will gave the children inheritance rights in the Arkansas estate as if Berrell had died intestate. Sherman concluded from his research that Arkansas inheritance law would apply to the real estate but not the personal property in Arkansas. Sherman opined in the letters to the children and the court that this would be an issue that the probate court would have to resolve.
Sherman also addressed the issue of whether Arndt, who had been identified in the Canadian probate as Berrell’s common-law wife and who was receiving retirement benefits from a Canadian state agency as Berrell’s common-law wife, would be recognized in Arkansas as Berrell’s common-law wife for purposes of dower and curtesy under the Arkansas statutes. If she is considered a common-law wife in Canada, Arkansas would recognize that and allow her dower rights of one-third of all the lands for life and one-third interest in any lands sold, as well as one-third of the personal estate. Sherman advised the court that he believed that Arndt had been identified as a common-law wife in Canada by the probate court there, and cited Pauliuk and the fact that she was receiving Berrell’s retirement benefits from a state agency in Canada for that proposition.
III. The Probate Court’s Order Disqualifying Sherman
In making its disqualification order, the probate court made specific findings in support of its ruling. In pertinent part, the court stated:
Mr. William Sherman, attorney, efforts were diligent, earnest and honest in this case. The efforts of Mr. Sherman have been directed towards advocating for Erika Arndt’s interest with the exception of ultimately providing notice to the children of these proceedings.
Mr. Sherman has advanced a position of one potential beneficiary of the estate to the exclusion of the two children of the decedent. The argument that Ms. Arndt should not have to hire or bear the expense of hiring separate counsel does not justify Mr. Sherman advocating for one potential beneficiary to the exclusion of the children. At the very least, the children have justifiably concluded their efforts are being prejudiced by the attorney’s actions and filings in this estate.
From statements in the hearing on March 3, 1999, wherein Sherman appeared on behalf of the estate, but no other parties appeared, it can be surmised that Sherman considered himself to be counsel for the estate rather than Arndt’s counsel. Sherman addressed payment to the personal representative of a fee for managing the decedent’s real estate and notified the court of the probable signifi cant issues which could arise at the upcoming probate hearing. Sherman gave a brief overview of those issues, including the issue regarding Arndt’s status as a common-law wife in Canada and the effect of that on the property in Arkansas, and then stated:
I represent the estate, I think it’s my duty to show both arguments on that issue. I think that Ms. Donovan will do a good job of arguing her client’s position. And I’d just alert the court to the fact we do have that very unique question, which is both interesting and difficult.
After hearing the matter on April 20, 1999, the trial court felt Sherman’s representation of the estate disadvantaged the pretermitted children, though finding no conflict of interest.
As stated in Saline, supra, “[t]he primary reference in any modern day disqualification case is to Rule 1.7 of the Model Rules of Professional Conduct.” Rule 1.7 of the Arkansas Model Rules of Professional Conduct defines conflicts of interest. Generally under the rule, an attorney should not represent a client if the representation will be directly adverse to another client. In Arkansas, it is not necessarily a conflict of interest for an attorney to represent both the estate and the only devisee in the will. There must be an additional showing of prejudice. King v. King, 273 Ark. 55, 616 S.W.2d 483 (1981). In King, the testator died leaving a will in which he named and disinherited six of his seven children, but did not name the seventh or the seventh’s children. As such, they were pretermitted heirs under the statute, and were allowed to take that portion they would have been allowed had the deceased died without a will. Also in that case, the attorney for the executor of the estate filed a brief in opposition to the pretermitted heirs’ stance on an issue, and the court still did not find that a conflict of interest arose.
The trial court did not discuss conflicts of interest under Rule 1.7. While we could remand for consideration of the conflict-of-interest issue, it is well settled that we have the power to hear probate cases de novo. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000). When the facts have been fully developed, a remand would serve little purpose. Norman, supra. Apparently, attorney ethics was not a factor in this case. In fact, the trial court complimented Sherman’s honesty and diligence. Here, the core issue is whether the existence of parallel legal positions held by the personal representative for the estate, Craig, and one of the potential heirs of that estate, Arndt, has been shown to be prejudicial to the other potential heirs. In other words, did Sherman’s arguments on behalf of the personal representative charged with probating Berrell’s holographic will which happened to be consistent with the interests of the sole devisee under the will prejudice the remaining potential heirs? We hold they did not.
The actions taken by Sherman throughout the proceedings below reflect conscientious legal services consistent with the duties of counsel for a personal representative in an ancillary probate. Mr. Sherman fulfilled his obligations of notice and adequately advised the court of the issues confronting it. His obligations as estate counsel would not include advocacy for any individual heirs, but neither would those obligations prevent the estate from having positions that proved consistent with those of some individual heirs. Based upon the preceding analysis, we hold the trial court erred in disqualifying appellant, and, accordingly, we reverse.
Reversed.
Ark. Code Ann. § 28-48~108(d) allows the personal representative to employ legal counsel in connection with the probate of the will or the administration of the estate. This attorney
shall prepare and present to the probate court all necessary notices, petitions, orders, appraisals, bills of sale, deeds, leases, contracts, agreements, inventories, financial accounts, reports, and all other proper and necessary legal instruments during the entire six (6) months, or longer when necessary, while the estate is required by law to remain open.
Ark. Code Ann. § 28-48-108(d). Section (d) also indicates that the attorney’s fee is based on the total market value of the real and personal property reportable to the probate court, regardless of who inherits the real and personal property.
Sherman based his reasoning on several Arkansas statutes and cases. Under Ark. Code Ann. § 28-39-407(b), children not mentioned in the will have certain rights. Because the children were not mentioned in Berrell’s holographic will, they are considered under Arkansas law to be “pretermitted children” allowed to take Arkansas property under the intestate statutes. Ark. Code Ann. § 28-9-203 details the general rules of intestate succession. Under this section, any real property in Arkansas would pass to the children despite the language of the will. Personal property, however, is not as clearly dilineated for distribution because this statute seems to indicate that the personalty may pass to the heirs through the personal representative, although leading authorities indicate that distribution of personal property is governed by the domicile of the deceased. See Am. Jur. 2d Executors and Administrators § 1171 (1991). As such, if Canadian law governs the distribution of personal property, Arndt would take all the personalty because failure to mention adult children in a will created in Canada does not allow the children to take any of that property there. | [
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TOM Glaze, Justice.
This case began as a tort suit filed in Hot Spring County Circuit Court by Joan George against two officers of the Caddo Valley Police Department. It is now before us following certification from the Court of Appeals pursuant to Ark. Sup. Ct. R. l-2(b)(l) and (6) as that court found that the appeal involved an issue of first impression and questions of statutory construction.
The following events led to this litigation: Officer John Whittle of the Caddo Valley Police Department heard a BOLO (be on the lookout) report regarding a truck stolen from the parking lot of a gas station in Malvern. When Whittle saw the truck, driven by Patrick Sherman, pass through Caddo Valley, he flipped on his police vehicle’s siren and lights and began pursuit. After hearing Whittle’s radio call that he was in pursuit, Sergeant John Kelloms also joined in the chase. As the pursuit reached speeds of somewhere between seventy-five and ninety miles per hour, the officers heard radio reports from Arkadelphia that police there were in the process of setting up a roadblock across Highway 67. Sergeant Kelloms told Officer Whittle to back off from the fleeing truck in the hopes that they could get Sherman to slow down before reaching town. When Whittle did not back off far enough, Kelloms told him to do so again. Despite Whittle’s eventual backing off, however, Sherman failed to slow down.
Meanwhile, in Arkadelphia, Lieutenant Mike Smith and Officer David Turner had positioned their cars partially across the highway, with one vehicle blocking a portion of the northbound lane and the other blocking part of the southbound lane. There was just enough room between the police vehicles for a car to pass through if it were going at a slow, safe speed. Several cars had made it through before Sherman arrived. Plaintiff Joan George’s Jeep was caught between the police cars when Sherman crested the hill just above the roadblock. Lieutenant Smith was standing on the center line with his pistol drawn, hoping to slow Sherman down. However, Sherman accelerated the stolen vehicle, forcing Smith to jump out of the way, and slammed it into George’s car. The impact threw the Jeep off the road and tossed George out of the vehicle and into the ditch.
George filed her complaint in September of 1998, naming as defendants, among others, Sherman, Whitde, and Kelloms. She alleged negligence on the parts of Whittle and Kelloms, claiming that they pursued Sherman at a high rate of speed when they knew, or should have known, that the pursuit was likely to injure innocent victims; that they failed to disengage from the pursuit when they knew, or should have known that the Arkadelphia police were setting up a roadblock; and that they failed to end the pursuit when they knew, or should have known, it was no longer prudent to chase Sherman under the conditions.
Whittle and Kelloms denied negligence, and in addition, they argued that they were immune from liability or damages because they were acting in their official capacities as employees of Caddo Valley. Eventually, they filed a motion for summary judgment on these same grounds. In response, George asserted that the officers were indeed negligent because they were engaged in conduct which gave rise to her injuries. She also pointed out that the officers were not protected by tort immunity only to the extent that they had minimum liability insurance as required by Arkansas law. The trial court denied the summary-judgment motion, but did permit the City of Caddo Valley to substitute itself as the real party in interest, in place of the two officers.
The case proceeded to trial. At the close of George’s case, Caddo Valley moved for a directed verdict, arguing that there was no evidence that the officers had been negligent in the operation of a motor vehicle, that Sherman’s actions constituted an intervening cause which superseded the officers’ liability, and that even if they were negligent, they were immune from suit. The court denied the motion at this time and again at the close of trial. The case was submitted to the jury, which found that Sherman, Whittle, and Kelloms were all negligent, and that liability should be apportioned ninety percent to Sherman and five percent each to Whitde and Kelloms. At a posttrial hearing, the trial court determined that Caddo Valley was jointly and severally liable for the judgment, but limited their liability to $25,000.00, the amount of the minimum required insurance coverage. George contended that, because there were two police cars involved, she should get twice that amount, but the court rejected that argument.
On appeal, Caddo Valley now argues that (1) the trial court erred in ruling that the city is not immune from liability in tort; (2) the court erred in denying the city’s motion for a directed verdict on the basis that any liability of the officers was cut off by the efficient intervening cause of the acts of Patrick Sherman; (3) no evidence was presented that Officers Whittle and Kelloms negligendy operated their motor vehicles; and (4) no evidence was presented indicating that the officers’ negligent operation of their motor vehicles, if any, proximately caused Joan George’s damages. On cross-appeal, George argues that the trial court erred in limiting Caddo Valley’s liability to $25,000.00.
Caddo Valley’s first argument is that the police officers were immune from suit. Ark. Code Ann. § 21-9-301 (Supp. 1999) provides that it is the “declared . . . public policy of the State of Arkansas that all . . . municipal corporations . . . shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance. No tort action shall lie against any such political subdivision because of the acts of its agents and employees.” (Emphasis added.) The immunity granted to municipalities extends to the city’s officials and employees when they are being sued in their official capacities. Matthews v. Martin, 280 Ark. 345, 346, 658 S.W.2d 374, 375 (1983). However, that same subchapter of the code also provides that “[a]ll political subdivisions shall carry liability insurance on their motor vehicles or shall become self-insurers, individually or collectively, for their vehicles, or both, in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act, § 27-19-101 et seq.” Ark. Code Ann. § 21-9-303(a) (1996). Under this section, “[t]he combined maximum liability of local government employees . . . and the local government employer in any action involving the use of a motor vehicle within the scope of their employment shall be the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act . . . .” Ark. Code Ann. § 21-9-303(b). The minimum amount defined in that act is $25,000.00 per vehicle insured. Ark. Code Ann. § 27-19-713(b)(2) (Supp. 1999).
Thus, a municipal corporation’s immunity for negligent acts only begins where its insurance coverage leaves off. An instructive case is City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989). There, Weber was injured when a Little Rock police officer, driving a city police car with the lights flashing and siren running, ran a red light and struck her vehicle. The city had moved for summary judgment, which was denied, and Weber won a jury verdict for $4,750.00. On appeal, the city argued that it was absolutely immune from tort liability arising out of a city policeman’s negligent operation of an authorized emergency vehicle. Weber, 298 Ark. at 383-84, 767 S.W.2d at 530. This court rejected the city’s reliance on earlier cases which held that immunity could be broached only when the public employee breached a duty imposed on him by law in common with (all other people, as opposed to a situation in which the negligent conduct arose out of a duty peculiar to his employment. The Weber court explained, stating the following:
The city’s reliance on these cases is misplaced. The test used previously in those cases allowed an injured party to side step governmental immunity and seek relief against the employee when the duty the employee breached was common to ah people. It cannot be used by the city to create governmental immunity not otherwise available, as where a statute specifically provides that all political subdivisions shall carry liability insurance on their motor vehicles.
There is no indication in § 21-9-303 that the legislature intended to distinguish in any manner the circumstances to which it apphed. In any event, we see no reason why a person injured by an emergency vehicle should be left without a remedy while persons may seek redress against a municipality for its employees’ negligence in the operation of ah other vehicles.
Weber, 298 Ark. at 385, 767 S.W.2d at 531 (emphasis added).
Although Weber is factually distinguishable (there, the police car was physically involved in the accident), the underlying principle is the same. A city is not immune to the extent that it has liability insurance. Here, Caddo Valley strenuously urges that it was not the officers’ negligent operation of their motor vehicles that caused the accident in this case; rather, it says, it was an exercise of discretion in the performance of their official duties that led to the wreck. However, the question of negligence is not so easily divisible from the question of discretion. In Weber, the officer had also, for some reason, made a decision to turn on his lights and sirens prior to his collision with Weber, and that decision, as in the instant case, involved an exercise of discretion; nonetheless, this court held that he was not immune from suit. In other words, once the officers here exercised their discretion and made the decision to pursue the stolen vehicle, any actions taken subsequent to that decision were required by law to be taken with ordinary care. AMI Civ. 3d 911, which was given in this case without objection, speaks to this very question as follows:
The driver of an emergency vehicle is relieved of the obligation to obey a speed limitf, but t]he existence of this privilege does not reheve the driver of an emergency vehicle of the duty to exercise ordinary care for the safety of others using the highway.
It was the officers’ failure to exercise ordinary care, once the decision to pursue Sherman was made, that led to the accident; therefore, to the extent of the city’s liability coverage, they are not immune from suit and may be found liable for their negligence.
Caddo Valley argues that two cases from other jurisdictions should control our decision here. However, both of those cases are distinguishable. In the first, Thornton v. Shore, 666 P.2d 655 (Kan. 1983), the Kansas Supreme Court held that an officer pursuing a fleeing vehicle was immune from suit on the basis of a Kansas statute, similar to Ark. Code Ann. § 27-51-202 (Repl. 1994), which reheves drivers of emergency vehicles of the responsibility to obey speed limits. However, in Thornton, there was no finding that the police officer was driving negligendy. Here, the trial court found sufficient evidence of the officers’ negligence to place that issue before the jury. In addition, the Kansas statute provides that the emergency vehicle privilege does not relieve the driver of the duty to “drive with due regard for the safety of all persons.” Kan. Stat. Ann. § 8-1506(d) (1982). The “due regard” language was interpreted in Thornton to be some degree of care less stringent than the standard of “ordinary negligence.” Thornton, 666 P.2d at 661. To the contrary, Arkansas law, as applied by our court in Weber, requires an ordinary-care standard. Thus, the logic of Thornton does not control the situation here.
Nor do we find Caddo Valley’s reliance on the case of Kelly v. City of Tulsa, 791 P.2d 826 (Okla. Ct. App. 1990), controlling. First, we emphasize that, to the extent that Kelly can be read to immunize an officer when he or she is negligent during a hot pursuit, Arkansas law is well settled, as discussed above, that such officers must exercise ordinary care. In any event, the Kelly case differs factually from the case at hand. There, the driver of the fleeing vehicle lost control and swerved into the plaintiff’s car, resulting in injury. Thus, in Kelly, it was simply the police officer’s decision to initiate pursuit which was the basis of the plaintiff’s complaint, and the Oklahoma Supreme Court found that this was “not the consideration addressed by [Oklahoma’s emergency vehicle statute].” Kelly, 791 P.2d at 828. In the present case, however, the police officers continued to pursue Sherman at a high rate of speed even after they knew that Arkadelphia police officers were setting up a roadblock a short distance down the highway. Arkadelphia police officer Mike Smith testified that the there was only enough room for a vehicle traveling at a slow, safe rate of speed to pass between the police vehicles making up the roadblock. In sum, the question here was whether the officers were negligent in continuing the pursuit once they knew of conditions which could create a danger to innocent bystanders. It was their failure, once they knew of the roadblock, to exercise ordinary care for the safety of others using the highway, that leads to the conclusion that they were negligent.
This leads us to Caddo Valley’s second argument, i.e., that the officers were not negligent, and that the trial court erred in refusing to direct a verdict in its favor on that point. Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997) (citing Southern Farm Bureau Casualty Ins. V. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996)). It is not this court’s province to try issues of fact; we simply review the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence we view the evidence in the light most favorable to the party against whom the motion is sought and give the evidence its strongest probative force. Id. Stated another way, if there is any substantial evidence to support the verdict, we affirm the trial court. Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987).
Negligence is the failure to do something which a reasonably careful person would do and a negligent act arises from a situation where an ordinarily prudent person in the same situation would foresee such an appreciable risk of harm to others that he would not act or at least would act in a more careful manner. Mergen, 329 Ark. at 412, 947 S.W.2d at 784. While a party can establish negligence by direct or circumstantial evidence, that party cannot rely on inferences based on conjecture or speculation. Id.
Once again, the evidence presented at the trial of this case showed that the two Caddo Valley officers in pursuit knew that a roadblock was being set up in Arkadelphia. Officer Whittle stated that he was approximately 100 feet behind the fleeing vehicle while the suspect was driving at approximately 90 to 100 miles an hour. He was twice told by his superior officer, Kelloms, to back off. This was Whittle’s first high-speed pursuit, and he had been given no training or instructions on “what factors to consider when pursuing a high-speed pursuit.”
Sergeant Kelloms joined the pursuit after having told Officer Whittle to back off. Testimony of Arkadelphia Police Officer Jackie Woodall revealed that the Caddo Valley officers were only about four or five car lengths behind the stolen truck, which was being driven at an estimated 75 to 80 miles an hour. On cross-examination, Woodall stated that it was only a matter of seconds from the time he heard the radio transmission telling Whittle to back off until the moment of the collision.
The foregoing is substantial evidence from which the jury could have concluded, without resort to speculation or conjecture, that the Caddo Valley officers were pursuing the suspect too closely at high speeds, and continued to do so after they knew of the presence of the roadblock in Arkadelphia. An ordinarily prudent person in the same situation could have foreseen an appreciable risk of harm to others; thus, we hold that there was sufficient evidence of negligence from which the jury could have reasonably found the officers to be at least partially or minimally at fault in the accident with George.
For its next two points on appeal, Caddo Valley argues that the trial court erred in refusing to direct a verdict in its favor on the question of proximate causation and on the issue of whether Patrick Sherman’s actions constituted an efficient intervening cause. Because these two issues are so closely intertwined, we consider them together. Proximate cause has been defined as “that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produced the injury, and without which the result would not have occurred.” Union Pac. R. R. Co. v. Sharp, 330 Ark. 174, 181, 952 S.W.2d 658, 662 (1997). Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. Id. In other words, proximate causation becomes a question of law only if reasonable minds could not differ. Id.
On the issue of whether or not there was an efficient intervening cause, this question is “simply . . . whether the original act of negligence or an independent intervening cause is the proximate cause of an injury. Like any other question of proximate causation, the question whether an act of omission is an intervening or concurrent cause is usually a question for the jury.” Hill Constr. Co. v. Bragg, 291 Ark. 382, 385, 725 S.W.2d 538, 540 (1987) (quoting from Larson Machine v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980)). The Bragg court went on to say that the “original act or omission is not eliminated as a proximate cause by an intervening cause unless the latter is of itself sufficient to stand as the cause of the injury. The intervening cause must be such that the injury would not have been suffered except for the act, conduct or effect of the intervening agent totally independent of the acts of omission constituting the primary negligence.” Bragg, 291 Ark. at 385, 725 S.W.2d at 540 (emphasis added).
In this case, there was evidence to establish a causal connection between the actions of the police officers and the injuries to Joan George. But for their actions in continuing to pursue Sherman, the jury could have reasonably found that the accident likely would not have happened. The events occurred in a natural and continuous sequence, thus making the officers’ acts a proximate cause of George’s injuries. In short, the jury could have easily concluded that the actions of Sherman, while admittedly an intervening cause, were not totally independent of the acts of negligence performed by the Caddo Valley police officers. As already discussed, the questions of proximate cause and the presence of an intervening cause were proper questions for the jury. As there was sufficient evidence from which the jury could have found negligence, the trial court did not err in refusing to direct a verdict on these two issues.
Caddo Valley’s last argument is that the trial court erred in finding it to be jointly and severally liable for the $150,000.00 judgment rendered against it and Sherman. The jury had assessed Sherman to be ninety percent at fault in the accident, and Whittle and Kelloms to each be five percent at fault (making Caddo Valley’s total liability ten percent). At a posttrial hearing on the form of the judgment, the trial court ruled that Caddo Valley, like any other corporate entity, could be jointly and severally liable. See Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962) (when the combined negligence of all joint tortfeasors exceeds the negligence of the plaintiff, each tortfeasor is jointly and severally hable for the plaintiff’s damages after they have been reduced in proportion to the degree of his own negligence); see also AMI Civ. 3d 2111. Following Arkansas’s law of joint and several liability, if George could not recover any of her loss from Sherman, she could look to Caddo Valley for satisfaction of the $150,000 judgment. Even so, the court limited Caddo Valley’s total liability to $25,000.00, the maximum liability of a local government employer in an action involving the use of a motor vehicle. Ark. Code Ann. § 21-9-303(b). In its brief, Caddo Valley argues that it is immune from suit and that there is no exception to tort immunity which permits a plaintiff to collect more than the amount actually owed by a local government. However, the city cites no authority which compels such a conclusion, and, therefore, we reject its argument. We have stated on occasions too numerous to count that we will not reverse where the appellant has offered no convincing argument or authority and it is not apparent without further research that the argument is well taken. See McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999).
On cross-appeal, George presents us with a related question. She argues that because there were two police vehicles involved in the accident, she should be able to recover $50,000.00 — twice the amount determined by the trial court to be Caddo Valley’s maximum liability, or $25,000.00 for each police car. The trial court interpreted Ark. Code Ann. § 21-9-303 to read in terms of an “occurrence” involving a city vehicle (or vehicles), rather than applying the insurance requirements to each vehicle involved in an accident. The trial court reads language into § 21-9-303 that is not there. Arkansas’s motor vehicle liability insurance statute plainly provides that a vehicle owner’s insurance policy must insure the policy-holder “against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the vehicle or vehicles..., with respect to each vehicle” for a minimum of $25,000.00. Ark. Code Ann. § 27-19-713(b)(2) (emphasis added). Thus, because there were two Caddo Valley vehicles involved in the accident, and each officer was found five percent at fault, Caddo Valley, as a joint tortfeasor, would be jointly and severally hable in the amount of $25,000.00 for each of the city’s vehicles. George therefore should recover $50,000.00 against Caddo Valley, and the trial court erred in ruling otherwise.
For the foregoing reasons, the decisions of the court below are affirmed on direct appeal and reversed on cross-appeal.
ARNOLD, C.J., not participating.
Thornton and Smith, JJ., dissent. | [
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RAY THORNTON, Justice.
Appellant, Louis Kenjuan Cobb was convicted of capital murder and sentenced to life imprisonment without the possibility of parole. Pursuant to Anders v. California, 386 U.S. 738 (1976) and our Sup. Ct. R. 4 — 3(j) (1), his attorney has filed a motion to withdraw and a brief stating that there is no merit to the appeal. Appellant’s brief filed by counsel outlines the four adverse rulings and states that there are no meritorious grounds for appeal. The State agrees that there is no merit to appellant’s appeal. Appellant has not filed a pro se brief arguing additional points for reversal. We conclude that there are no meritorious issue raised from the rulings that were adverse to appellant. Accordingly, we grant counsel’s motion to withdraw and affirm appellant’s conviction and sentence.
Appellant’s conviction resulted from the shooting death of Steven Tyler on March 16, 1998. The testimony presented at trial established that Mr. Tyler was dating the mother of appellant’s child. Appellant was upset with the victim, whom he thought was taking too much parenting responsibility for appellant’s child. On the night of the murder, appellant followed Mr. Tyler to his home, and, armed with a gun, went inside to discuss the matter. An argument occurred and Mr. Tyler, who was unarmed, was shot twice, once in the back and once in the chest. Mr. Tyler’s body was discovered by his roommate, Napoleon Tillman.
At trial, appellant admitted to shooting Mr. Tyler. However, he argued that he was acting only in self-defense and that the killing was not premeditated or deliberated. The trial court denied appellant’s motion for directed verdict. At the close of the evidence, appellant requested that the trial court give the jury an instruction on manslaughter. The trial court, finding that manslaughter was inconsistent with appellant’s defense of self-defense, declined to give the instruction. The jury found appellant guilty of capital murder.
Sufficiency of the Evidence
The first adverse ruling we must discuss is the trial court’s denial of appellant’s motion for a directed verdict. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before all other points raised. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). At the close of the State’s case, appellant moved for a directed verdict arguing that the evidence was insufficient to establish that he had acted with premeditation and deliberation. The trial court denied the motion. As we find no error in this ruling, we affirm.
On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. The evidence may be either direct or circumstantial. Only evidence supporting the verdict will be considered. Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. Id. Whether the evidence excludes every hypothesis is left to the jury to decide. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. McDole v. State, 339 Ark. 391 , 6 S.W.3d 74 (1999). The trier of fact is free to believe all or part of a witness’s testimony. Moreover, the credibility of witnesses is an issue for the jury and not for this court. Bangs, supra. 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. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).
The evidence presented at trial was sufficient to support appellant’s capital murder conviction. First, Napoleon Tillman, Mr. Tyler’s roommate, testified. He stated that when he came home from work on March 16, 1998, he found Mr. Tyler’s dead body on the floor of their apartment. He also testified that neither he nor Mr. Tyler owned a gun.
Next, Lori Baker, appellant’s former girlfriend and Mr. Tyler’s girlfriend at the time of his death, testified. She stated that on the night of the murder she called Mr. Tyler’s residence and was informed that appellant was there. She further testified that later that night appellant came to her home and informed her he had met with Mr. Tyler. Finally, she testified that appellant told her he knew where Mr. Tyler lived because he had followed him home from work.
Then, Detective Kevin Simpson from the Little Rock Police Department testified. He stated that he found a ,9mm semi-automatic pistol, with one loaded black clip, along with two five rounds in the case in appellant’s car.
Doctor William Sturner, the Chief Medical Examiner for the Arkansas State Crime Laboratory, also testified. He stated that it was more likely than not that the first gunshot wound Mr. Tyler suffered caused him to suffer paralysis and put him in a state of shock such that the victim would not be able to fend off the shooter or protect himself in any way. Doctor Sturner further testified that the second wound had been inflicted while Mr. Tyler was lying on his back with the shooter standing at contact range directly over him.
Finally, appellant, Lewis Cobb testified. He stated that on the day of the murder he had gone to Mr. Tyler’s home to have a conversation regarding his relationship with appellant’s daughter. Appellant noted that he had been wanting to have this conversation with Mr. Tyler “for a while”. He further testified that he had a gun, which he had purchased seven days before the murder, when he went into Mr. Tyler’s home. Appellant then stated that he did not know whether Mr. Tyler had a gun when he went into his home but that based on his clothing he would have had no place to hide a gun on his person. He also testified that he shot Mr. Tyler and “he fell down” and that he did not know why he shot him the second time— “there was no reason.” Appellant finally stated that he left the house after the murder and did not try to get help for Mr. Tyler.
Pursuant to Ark. Code Ann. § 5-10-101 (a) (4) (Repl. 1997), a person commits capital murder if “with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person.” Id. Premeditation is not required to exist for a particular length of time. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence but must usually be inferred from the circumstances of the crime. Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused’s conduct. Id.
We conclude that according to these standards, the State introduced sufficient evidence to show that appellant acted with premeditation and deliberation when he shot Mr. Tyler. Specifically, it was possible for the jury to have found that appellant, who had wanted to talk with the victim “for a while” and went to Mr. Tyler’s home with a recendy purchased gun, acted with premeditation and deliberation when he shot the unarmed victim in the back causing him to suffer paralysis, and then shot him a second time at point-blank range in the chest and left him to die. Accordingly, the trial court’s denial of appellant’s request for a directed verdict was not erroneous.
Lesser Included Offense Instruction
Following the presentation of evidence, the court instructed the jury on capital murder and the lesser included offenses of first degree and second degree murder. Noting that the manslaughter instruction was inconsistent with the justification defense, the court refused appellant’s proffered manslaughter instruction. It is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). We will affirm a trial court’s decision to exclude an instruction on a lesser included offense only if there is no rational basis for giving the instruction. Id. Pursuant to Ark. Code Ann. § 5-10-104 (Repl. 1997), and appellant’s proffered jury instruction, an individual commits manslaughter if “he recklessly causes the death of another person.” Id. In this case, where appellant admitted to shooting the unarmed victim once in the back causing paralysis and shooting the victim a second time while he was incapable of moving or causing harm to appellant, it is clear that a justification defense is inconsistent with the “recklessly causing” element found in the offense of manslaughter. Thus, there was no rational basis for giving the manslaughter instruction and the trial court did not err.
Relevancy of Mr. Tillman’s Testimony
Counsel next contends that the trial court did not abuse its discretion when it overruled an objection to a statement made by Mr. Tillman during his testimony. The exchange in dispute is as follows:
Q: [ Prosecutor John Johnson] Did he [Mr. Tyler] have any other interests?
A: [Napoleon Tillman] He loved music.
Q: Was he involved in any aspects of music?
A: Yeah, he does, [sic]
Jeff Weber [defense attorney]: Object to the relevance of this.
The Court: Overruled.
Arkansas Rule of Evidence 401 states “ ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Arkansas Rule of Evidence 402 states “all relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible.” Id. Additionally, we have held that a ruling on the relevancy of evidence is discretionary, and we will not reverse absent an abuse of discretion. Easter v. State, 306 Ark. 615, 816 S.W.2d 602 (1991). Moreover, we note that we have held that when the evidence of guilt is overwhelming and the error is slight, we can declare that the error was harmless and affirm. Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999); see also Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999). We apply this standard of review to evidentiary rulings made in the guilt phase of capital cases. Id. Thus, in this case, where appellant has admitted to killing Mr. Tyler, and it has been established by sufficient evidence that he acted with premeditation and deliberation, whatever harm may have resulted from Mr. Tillman’s testimony about Mr. Tyler’s interest in music was harmless.
Prosecutor’s Statement
The final ruling adverse to appellant resulted from an objection made following a question posed by Prosecutor John Johnson during cross examination of appellant. Mr. Johnson’s question referenced the fact that appellant’s first criminal act was murder. He asked; “Mr. Cobb, when you embarked on a life of crime you certainly picked the big time, didn’t you?” Appellant’s attorney objected to this question and the trial court overruled the objection. We have noted that trial courts, must be, and are, vested with wide discretion in determining whether the remarks of counsel are within their legitimate scope, or whether they transcend the bounds set for them by the well established rules of practice. Adams v. State, 176 Ark. 916, 5 S.W.2d 946 (1928). We will always reverse where counsel goes beyond the record to state facts that are prejudicial to the opposite party, unless the trial court, by its ruling, has removed the prejudice. But we do not reverse for the mere expression of opinion of counsel in their argument before juries, unless the expression is so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect. Id. Here, it is difficult to see how the prosecutor’s question was harmful to appellant because appellant had previously testified to the facts noted in the question and the testimony was already before the jury. Specifically, appellant admitted that he killed Mr. Tyler and testified that he had been convicted of no other crimes prior to the murder and the prosecutor’s question simply reiterated facts already in evidence. Accordingly, the trial court did not abuse its discretion in overruling appellant’s objection.
4-3 (h) Review
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 to appellant, and no error has been found.
From the review of the record and the briefs before us, we find the appeal to be without merit. Counsel’s motion to be relieved is granted and the judgment is affirmed.
Affirmed. | [
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Donald L. Corbin, Justice.
Appellant Owen D. Oates appeals an order of the Perry County Chancery Court granting Appellee Maria Teresa Oates a divorce and establishing the parties’ rights in both real and personal property. Appellant sets forth four points for reversal that involve property-settlement issues and an award of attorney’s fees. A related opinion was previously handed down in Oates v. Oates, 340 Ark._,_S.W.3d_(Feb. 24, 2000). In that opinion, we reversed the trial court’s order granting Appellee a divorce because Appellee failed to provide corroboration of her grounds for divorce. As a result of our decision in that case, Appellant’s points for reversal in the present matter are moot. Accordingly, this appeal is dismissed. | [
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ANNABELLE CLINTON Imber, Justice.
This is an election-contest case. On appeal, Lona Horne McCastlain argues that the trial court erred when it dismissed Barbara Elmore’s complaint without prejudice. Ms. McCastlain contends that the trial court should have dismissed Ms. Elmore’s election contest with prejudice because the statutory time for filing an election-contest complaint had expired. We agree that the complaint should have been dismissed with prejudice, and affirm the trial court’s order as modified.
Lona Horne McCastlain and Barbara Elmore were candidates in the 1998 general election for the office of Prosecuting Attorney in the Seventeenth Judicial District (West). On November 13, 1998, the Lonoke County Board of Election commissioners certified the election results and declared Ms. McCastlain the winner by a vote of 6,651 to 6,650, a margin of only one vote. Ms. Elmore filed an election-contest complaint on December 2, 1998, against Lona McCasdain, Myrde Finch in her official capacity as Lonoke County Clerk, the Lonoke County Board of Election Commissioners and Clayton Shurley, Mickey Stumbaugh, and Jimmie Taylor in their official capacities as Lonoke County Election Commissioners. The complaint signed by Ms. Elmore and her attorneys reflected the following jurat executed by the notary public: “Subscribed and Sworn to before me this 2nd day of December, 1998.”
Ms. McCastlain initially asserted that the court was without jurisdiction to hear the matter and moved for dismissal of the complaint pursuant to Ark. R. Civ. P. 12(b)(1). Specifically, Ms. McCastlain alleged that Ms. Elmore failed to timely file an affidavit in which she verified that she believed the statements in her complaint to be true, as required by Ark. Code Ann. § 7-5-801 (d) (Repl. 1993), thereby depriving the trial court of subject matter jurisdiction. The trial court held a hearing and ruled that Ms. Elmore’s notarized signature and the “statement of verification” quoted above satisfied the affidavit requirement in section 7-5-801(d) and denied Ms. McCastlain’s motion to dismiss.
The trial court scheduled the case for trial on May 18, 1999; however, on May 10, 1999, Ms. McCastlain’s attorneys were notified by Ms. Elmore’s attorneys that she wished to dismiss her complaint. That same day, the attorneys for both parties advised the trial court’s case coordinator that Ms. Elmore was dismissing her complaint and that an order of dismissal would be sent to the trial court for its signature. The attorneys also confirmed with the case coordinator that the two days scheduled for trial, May 18 and 19, 1999, were released. Later that day, Ms. McCastlain’s attorneys were notified that Ms. Elmore had changed her mind and would not dismiss her complaint. One of Ms. Elmore’s attorneys indicated that he would seek the court’s permission to withdraw, and her other attorney contacted the trial court’s case coordinator about keeping the trial dates previously released. Following a conference call with the attorneys on May 17, 1999, the trial court entered an order on May 20, 1999, in which it ruled that Ms. Elmore could not withdraw her request for a dismissal or nonsuit. However, the trial court dismissed Ms. Elmore’s complaint without prejudice and gave her the option to refile her election contest. Ms. McCastlain now appeals and asserts two grounds: (1) it was error for the trial court to dismiss Ms. Elmore’s complaint without prejudice; and (2) it was error for the trial court to deny the motion to dismiss for failure to comply with the affidavit requirement in section 7-5-801 (d). Because we find merit in Ms. McCastlain’s first assertion of error, we need not address her second argument.
The right to contest an election is purely statutory. Casey v. Burdine, 214 Ark. 680, 217 S.W.2d 613 (1949). Because election contests are special proceedings, the rules of civil procedure do not apply. See Ark. R. Civ. P. 81(1999); Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000); Rubens v. Hodges, 310 Ark. 451, 837 S.W.2d 465 (1992). The provision requiring an election contest to be filed within a certain number of days of the certification is mandatory and jurisdictional. See Jenkins v. Bogard, 335 Ark. 334, 980 S.W.2d 270 (1998); Gay v. Brooks, 251 Ark. 565, 473 S.W.2d 441 (1971); Moore v. Childers, 186 Ark. 563, 54 S.W.2d 409 (1932); Gower v. Johnson, 173 Ark. 120, 292 S.W. 382 (1927). We have also held that “[T]he right to contest a[n] ... election is a statutory proceeding, the purpose of which is to furnish a summary remedy and to secure a speedy trial.” Gower v. Johnson, 173 Ark. at 122, 292 S.W. at 383. In light of the fact that such statutory proceedings are special and summary in nature, the statutory requirements to secure jurisdiction must be strictly observed, and the jurisdictional facts must appear on the face of the proceedings. Casey v. Burdine, supra.
The General Assembly has specifically mandated that election-contest proceedings be expedited with abbreviated deadlines for initiating an election contest and appealing a trial court’s determination of an election. See Ark. Code Ann. § 7-5-801 (Repl. 1993)(twenty-day time period for filing a complaint); Ark. Code Ann. § 7-5-810 (Supp. 1999) (seven-day time period for filing an appeal). Statutory provisions also require the trial courts and the Supreme Court to hear and decide election-contest cases promptly. See Ark. Code Ann. § 7-5-804 (Supp. 1999) (“It shall be the duty of the Supreme Court to advance the hearing of any such appeal.”); Ark. Code Ann. § 7-5-802 (Repl. 1993) (requiring circuit court to “proceed at once” to hear the case, and the case shall be given “precedence and be speedily determined”). In this regard, we have noted the legislature’s mandate for speedy determination and this court’s condemnation of “fishing expeditions” in the context of election contests. See Cartwright v. Carney, 286 Ark. 121, 690 S.W.2d 716 (1985).
Additionally, Arkansas law does not allow an election-contest complaint that was deficient when filed to be later amended and corrected to allege a cause of action after the twenty-day time period for filing the complaint has elapsed. Cowger & Stewart v. Mathis, 255 Ark. 511, 501 S.W.2d 212 (1973); Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967);Wheeler v. Jones, 239 Ark. 455, 390 S.W.2d 129 (1965); see also, King v. Whitfield, 339 Ark. 176, 5 S.W.3d 21 (Glaze, J., concurring). Furthermore, where a complaint fails to allege sufficient facts to state a cause of action in an election contest, it may not be subsequently amended by pointing to facts outside the complaint after the time for contesting the election has expired. King v. Whitfield, supra; Rubens v. Hodges, supra; see also Wheeler v. Jones, supra. These cases demonstrate a strict adherence to the statutory time constraints articulated for election contests.
Finally, we have previously addressed the applicability of the savings statute in the context of an election contest. Casey v. Burdine, supra. Pursuant to the savings statute, a claimant may refile an action within one year after taking a nonsuit upon the original action brought within the statutory limitations period. Ark. Code Ann. § 16-56-126 (1987). In Casey v. Burdine, we specifically held that the savings statute applies only to actions governed by a general statute of limitations, and not to proceedings, such as election contests, in which the right to file is limited to a very short period:
Both the continuity of administration, as well as the sanctity of the acts of a person holding office and exercising its powers, require the strict enforcement of a short period for contesting the right to hold the office.
Casey v. Burdine, 214 Ark. at 683, 217 S.W.2d at 615. Likewise, the election contest in this case must be governed by our holding in Casey v. Burdine because the statutory time limit for filing an election contest is jurisdictional. We also note that the case law cited by Ms. Elmore, Walton v. Rucker, 193 Ark. 40, 97 S.W.2d 442 (1936), does not address the applicability of the savings statute to election- contest proceedings, and is therefore inapposite.
We have also refused to permit nonsuits in analogous special proceedings where the legislature has expressly provided for expedited proceedings. See In re Adoption of Martindale, 327 Ark. 685, 940 S.W.2d 491 (1997)(holding that a petition to set aside an adoption decree could not be dismissed without prejudice); and Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981)(holding that a will contestant could not take a nonsuit). In Screeton v. Crumpler, we stated:
The appellant’s brief implies that the dismissal should have been without prejudice, but we do not think that procedure . . . was available. A proceeding to probate a will is a special proceeding, not an “action” as that term is ordinarily used. It does not constitute a civil action within [the Arkansas Rules of Civil Procedure], Rules 2 and 3. A will contestant cannot take a nonsuit under Rule 41, because such a contest is not an independent proceeding in itself. It would seriously disrupt the administration and distribution of estates if a will contest could be dismissed, voluntarily or without prejudice, and refiled at some indefinite later date. Hence the dismissal in the probate court was necessarily with prejudice.
Screeton v. Crumpler, 213 Ark. at 168, 617 S.W.2d at 848 (citations omitted). While these cases involve probate proceedings, the principles enunciated therein apply equally to election-contest proceedings. If an election contest could be dismissed voluntarily or without prejudice, it would seriously disrupt the administration of government and would effectively subvert the time limitations established by the legislature. We therefore hold that Ms. Elmore’s complaint should have been dismissed with prejudice.
Affirmed as modified.
Thornton, J., not participating.
Although not cited by the parties, our decisions in Spires v. Election Comm'n Union County Ark., 302 Ark. 407, 790 S.W.2d 167 (1990) (Spires I) and Spires v. Compton, 310 Ark. 431, 837 S.W.2d 459 (1992) (Spires II) are also inapposite for the same reason. | [
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Donald L. Corbin, Justice.
The sole issue in this case is whether the Sebastian County Chancery Court abused its discretion in setting the amount of attorney’s fees awarded to Appellant Lela K. Phelps for her claim against Appellee U.S. Life Credit Life Insurance Company. This is the second appeal of this matter. See Phelps v. U.S. Life Credit Life Ins. Co., 336 Ark. 257, 984 S.W.2d 425 (1999) (Phelps I). Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2 (a) (7). We find no error and affirm.
Our decision in Phelps I reflects that Appellee’s agent sold a credit fife insurance policy to Lincoln Phelps, incident to his purchase of a pickup truck on November 4, 1994. Mr. Phelps died on September 13, 1996, while coverage of the policy was in force, from an acute myocardial infarction with a chronic condition of cardiac arrhythmia. Appellant, the widow of Mr. Phelps and the administratrix of his estate, filed a claim against Appellee, seeking payment of death benefits to the creditor-beneficiary, Ford Motor Credit Company. Appellee refused to pay the claim, contending that Mr. Phelps’s application answers misrepresented his true health condition. Appellee asserted that had it known of Mr. Phelps’s heart condition, it would not have issued the policy and was therefore entitled to rescind it. The chancellor granted Appellee’s request for rescission and dismissed Appellant’s complaint. This court reversed the chancellor’s decision in Phelps I. On remand, the chancellor entered judgment in favor of Appellant, awarding her $12,699.98, plus interest of $2,075.42, and a penalty of $1,524.00. Additionally, the chancellor awarded attorney’s fees in the amount of $5,433.13 plus $651.40 for the costs on appeal.
The record on remand reflects that Appellant sought attorney’s fees in the amount of $11,812.50 for approximately 94.5 hours of work at $125.00 per hour. Appellant also sought fees in the amount of $1,250.00 for the costs to prepare and argue the postjudgment motion. The fee request was based on an itemization of tasks performed by Appellant’s attorney, Bill Walters, as well as the affidavits of four local attorneys, which reflected that a reasonable hourly rate in the area was $150.00.
Appellee challenged the accuracy of Mr. Walters’s estimation of time spent working on the case. Appellee also questioned the relevance of Appellant’s affidavits, which were taken from another case and specifically referred to the difficulty of representing policyholders on fire insurance claims where they are suspected of arson. Appellee further urged the chancellor to consider the fact that under Ark. Code Ann. § 23-79-208 (Repl. 1999), the attorney’s fee is not the property of the attorney, but is indemnity to the litigant. Thus, Appellee argued that the fee should be limited to the amount that Appellant was obligated to pay her attorney. Appellee contended that the appropriate amount would be between thirty-three and forty percent of the judgment. In support of this contention, Appellee relied on a letter from Mr. Walters to the chancellor, which reflected in part that the case was taken on a contingency-fee basis. The chancellor agreed with Appellee and awarded a fee in the amount of one-third of the judgment and penalty awarded to Appellant.
This court has interpreted section 23-79-208 as providing that “[i]n the event an insurer wrongfully refuses to pay benefits under an insurance policy, the insured may recover the overdue benefits, twelve percent damages upon the amount of the loss, and reasonable attorneys’ fees.” Northwestern Nat’l Life Ins. Co. v. Heslip, 309 Ark. 319, 326-27, 832 S.W.2d 463, 467 (1992) (quoting State Farm Fire & Cas. Co. v. Stockton, 295 Ark. 560, 565, 750 S.W.2d 945, 948 (1988)). The following factors are relevant in determining reasonable fees: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; and (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Parker v. Southern Farm Bureau Cas. Ins. Co., 326 Ark. 1073, 935 S.W.2d 556 (1996); Heslip, 309 Ark. 319, 832 S.W.2d 463. While courts should be guided by the foregoing factors, there is no fixed formula in determining the reasonableness of an award of attorney’s fees. See Shepherd v. State Auto Prop. & Cas. Ins. Co., 312 Ark. 502, 850 S.W.2d 324 (1993); Stockton, 295 Ark. 560, 750 S.W.2d 945. Because of its intimate acquaintance with the record and the quality of the service rendered, we recognize the superior perspective of the trial court in assessing the applicable factors. Id. Thus, we will not set aside an award of attorney’s fees absent an abuse of discretion by the trial court. Id.
Appellant argues that the chancellor abused his discretion in setting the amount of fees in this case. She asserts that the chancellor should have awarded fees in accordance with the total time Mr. Walters spent working on her case. We disagree. There was no evidence of the actual amount of time spent preparing Appellant’s case. Mr. Walters merely submitted a five-page itemization of particular tasks and the dates on which they were performed. There was no indication of the time spent on each of the tasks; rather, there was only an estimation of the total time spent performing all of the tasks. It is not known how Mr. Walters arrived at the figure of 94.5 hours. Moreover, according to his letter to the chancellor, Mr. Walters acknowledged that his office’s records were not completely accurate, stating that “we had not kept this matter entirely timed during the work we were doing on it because of it being a contingency fee case.” Thus, the total time allegedly spent on the case was merely an estimation arrived at after the fact. In any event, the time spent on a case is but one factor to consider, and we do not regard this argument as a persuasive reason to reverse the chancellor’s judgment. See Heslip, 309 Ark. 319, 832 S.W.2d 463.
Furthermore, we reject Appellant’s argument that the chancellor abused his discretion in “arbitrarily” setting a contingency fee in this case without explanation. Mr. Walters admitted in a letter to the chancellor that he had taken the case on a contingency-fee basis. The chancellor thus properly considered that factor in arriving at a reasonable fee. See Parker, 326 Ark. 1073, 935 S.W.2d 556; Heslip, 309 Ark. 319, 832 S.W.2d 463. Additionally, this court has recognized that the fee provided for in section 23-79-208 “is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests.” Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 91, 514 S.W.2d 224, 225 (1974). The fee is not the property of the attorney; instead, it is indemnity to the litigant. Id. Thus, the fee awarded should not exceed the amount that the client is responsible for paying, otherwise the statute would be susceptible to abuse. The purpose of the statute is not to provide a windfall to attorneys; rather, it is to permit the insured to obtain competent representation. Id. Accordingly, we cannot say that the chancellor abused his discretion in awarding attorney’s fees in the amount of $5,433.13, plus costs of $651.40, on a total judgment of$16,299.40.
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Robert L. Brown, Justice.
The matter before this court is a petition for writ of certiorari filed by Dick Barclay, Director, Arkansas Department of Finance and Administration (DFA). The respondents are Farm Credit Services of Central Arkansas, PCA; Farm Credit Services of Western Arkansas, PCA; Eastern Arkansas Production Credit Association; and Delta Production Credit Associations (the PCAs). The issue raised involves the propriety of a writ of mandamus issued by the chancery court to restrain counsel for DFA from representing the State of Arkansas before the United States Supreme Court. We dissolve the writ of mandamus due to lack of jurisdiction in the chancery court to issue the same.
On July 1, 1999, this court affirmed the summary judgment entered by the Pulaski County Chancery Court in favor of the PCAs because the PCAs were entitled to immunity from the state sales tax and income tax due to their status as “federal instrumentalities.” See State v. Farm Credit Services of Central Arkansas, 338 Ark. 322, 994 S.W.2d 453 (1999). Throughout that litigation, the State was represented by Martha Hunt, legal counsel for DFA. On July 16, 1999, the State, which continued to be represented by Martha Hunt, moved this court to stay its mandate pending the resolution of its petition for writ of certiorari in the United States Supreme Court. This court stayed its mandate on September 9, 1999, over the objection of the PCAs.
On November 23, 1999, the PCAs filed a petition for writ of mandamus. In that petition, they prayed that the Pulaski County Chancery Court order DFA to refrain from acting in violation of Ark. Code Ann. § 25-16-703(a) (Repl. 1996). Section 25-16-703(a) reads that the Attorney General shall represent the State of Arkansas before the United States Supreme Court. The PCAs prayed that the DFA’s legal counsel be stopped from filing the petition for writ of certiorari in that court or, if it already had been filed, be directed to withdraw it. On November 24, 1999, the chancery court orally granted the PCAs’ petition for mandamus. The matter was then transferred to another division of the chancery court due to the recusal of the first chancellor. A motion for reconsideration was filed by DFA on December 3, 1999. Attached to the motion was correspondence from the Attorney General in which he declined to act as counsel and a letter from Governor Huckabee appointing Martha Hunt as counsel. On December 8, 1999, the new chancellor denied DFA’s motion for reconsideration and issued the writ of mandamus.
Also, on December 8, 1999, DFA filed its petition for certiorari in this court as well as a motion for expedited consideration and an application for temporary relief. In the application for temporary relief, DFA requested that this court stay the mandamus order so that DFA’s legal counsel could proceed with the petition before the United States Supreme Court. The deadline for docketing that petition was December 13, 1999. By per curiam order handed down on December 10, 1999, we temporarily stayed the chancery court’s writ of mandamus in order to permit the certiorari petition to be docketed in the United States Supreme Court, and we ordered the parties to brief (1) the merits of DFA’s petition in this court, and (2) the basis for the chancery court’s jurisdiction to issue a writ of mandamus. On December 13, 1999, DFA’s petition for writ of certiorari was docketed in the United States Supreme Court.
We turn first to the matter of the chancery court’s jurisdiction to issue a writ of mandamus in this case to prevent DFA’s counsel from representing the State. This court is obligated to raise issues of subject-matter jurisdiction on its own, and we do so in this instance. See, e.g., Hoyle v. Faucher, 334 Ark. 529, 975 S.W.2d 843 (1998).
When this court asked for briefs on the question of the chancery court’s jurisdiction, the parties briefed the issue of whether the chancery court had in fact issued a writ of mandamus, or whether it, in reality, had issued an injunction to prevent a public official from committing an ultra vires act. See Villines v. Lee, 321 Ark. 405, 902 S.W.2d 233 (1995). We do not address that issue, because we conclude that the chancery court had no jurisdiction to take the action it did pertaining to State v. Farm Credit Services of Central Arkansas, supra, on December 8, 1999.
It is axiomatic that this court takes jurisdiction of a matter once the record on appeal is filed with the Clerk of the Supreme Court. See, e.g., Heigle v. Miller, 332 Ark. 315, 965 S.W.2d 116 (1998); In re Morgan, 310 Ark. 220, 833 S.W.2d 776 (1992). This court loses jurisdiction to the trial court once the mandate is issued from this court to the trial court. See First Pyramid Life Ins. Co. of Am. v. Stoltz, 312 Ark. 516, 849 S.W.2d 525 (1993); Brimson v. Brimson, 228 Ark. 562, 309 S.W.2d 29 (1958). A mandate is the official notice of the action taken by the appellate court. 5 Am. Jur. 2d, Appellate Review § 777 (1995). The mandate is directed to the trial court, and it instructs that court to recognize, obey, and execute the appellate court’s decision. Id. In the instant case, the mandate had been stayed by this court, which had the effect of preventing reinvestment of jurisdiction in the chancery court. Accordingly, the chancery court had no jurisdiction to act in State v. Farm Credit Services of Central Arkansas, supra.
The remaining question then is whether the PCAs could file a new mandamus action subsequent to the mandate’s stay to prevent counsel from representing the State in its petition for certiorari before the United States Supreme Court in State v. Farm Credit Services of Central Arkansas, supra. Stated differently, was the new mandamus action truly a separate case from the primary litigation, or was it a procedural maneuver to prevent the certiorari petition from being heard by the United States Supreme Court?
We conclude that the mandamus action and resulting writ were so intertwined with the primary litigation as to be part and parcel of it. The stated prayer for relief in the mandamus petition was to prevent DFA’s counsel from representing the State in the case before the United States Supreme Court. Indeed, at the time DFA petitioned this court for a writ of certiorari on December 8, 1999, the Attorney General had already declined the invitation to represent the State and Governor Huckabee had appointed Martha Hunt as counsel to represent the State before the United States Supreme Court, under the authority of Ark. Code Ann. § 25-16-702(c) (Repl. 1996). Thus, the effect of the chancery court’s writ of mandamus was to thwart the State’s certiorari petition from being docketed in the Supreme Court in State v. Farm Credit Services of Central Arkansas, supra.
Moreover, the appropriate avenue for relief to resolve the legal counsel issue would have been a petition filed before this court at the time the mandate was stayed. The PCAs were aware that the mandate was stayed on September 9, 1999, and would continue to be stayed pending resolution of the certiorari petition before the United States Supreme Court. Yet, the PCAs failed to petition this court for relief under § 25-16-703(a), when it was clear that this court retained jurisdiction over the matter and that the chancery court had no authority to act. Instead, the PCAs waited to file the mandamus petition until almost three months after the mandate was stayed. We cannot countenance a mandamus action brought under these circumstances to derail appellate review of a certiorari petition filed in the United States Supreme Court.
We hold that the chancery court lacked subject-matter jurisdiction to issue the writ of mandamus in this matter.
Writ dissolved. | [
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Donald L. Corbin, Justice.
This is a wrongful-death case in which we are asked to interpret the term “beneficiaries,” as provided in Ark. Code Ann. § 16-62-102(d) (Supp. 1999). Appellants Tiny Standoak Babb, Gregory Franks, Shilena Easter, Michael Easter, Felisha Easter, Frederick Easter, and Daryl Standoak are the grandchildren of Allean Standoak, who died on March 29, 1997. Allean had four children: Appellee Leanna Mat-lock, Appellee Curtis Standoak, Theadoris Standoak, and Shirley Standoak. Appellants are the children of Theadoris Standoak and Shirley Standoak, both of whom predeceased Allean. In December 1997, Appellee Leanna Matlock was appointed special administratrix of Allean’s estate for the purpose of bringing a wrongful-death suit. In August 1998, the Garland County Probate Court entered an order of settlement in the wrongful-death action. The order reflected that after payment of attorney’s fees and satisfaction of liens held by Medicare and Medicaid, the remainder of the settlement was divided between Appellees, the two surviving children. Appellants subsequently filed a motion to intervene in the wrongful-death action, claiming that they were Allean’s heirs at law and thus beneficiaries of the settlement. The probate judge denied intervention, and this appeal followed. Our jurisdiction of this case is pursuant to Ark. Sup. Ct. R. 1 — 2(b)(1), as it involves issues of first impression. We affirm.
We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). 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. The questions presented by this appeal are: (1) whether the definition of “children” as used in section 16-62-102(d) should be interpreted broadly so as to include the descendants of those children of the deceased who predeceased the deceased; and (2) whether the relationship of in loco parentis continues past the age of majority for purposes of claiming as a beneficiary to a wrongful-death suit. We conclude that the answer to both questions is “No.”
There was no cause of action for wrongful death at common law. Simmons First Nat’l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986); McGinty v. Ballentine Produce, Inc., 241 Ark. 533, 408 S.W.2d 891 (1966). Thus, because the action is a statutory creation and is in derogation of or at variance with the common law, we construe the wrongful-death statute strictly. Id. Strict construction necessarily “requires that nothing be taken as intended that is not clearly expressed.” Lawhon Farm Servs. v. Brown, 335 Ark. 272, 279, 984 S.W.2d 1, 4 (1998). Given that narrow standard, we must reject Appellants’ first argument, that we should broadly construe the class of statutory beneficiaries to include persons not specifically named.
Section 16-62-102(d) provides:
The beneficiaries of the action created in this section are the surviving spouse, children, father and mother, brothers and sisters of the deceased person, persons standing in loco parentis to the deceased person, and persons to whom the deceased stood in loco parentis.
Clearly, grandchildren of the deceased person are not included in the group of statutory beneficiaries. It is equally clear that the term “children” means living children, as the entire group of beneficiaries is qualified by the term “surviving.” Thus, children who are not living at the time of the deceased person’s death are not among the statutory beneficiaries, and, correspondingly, neither are the deceased children’s heirs at law. Accordingly, we reject Appellants’ assertion that they are beneficiaries to the wrongful-death settlement.
We also reject the claim raised by Appellants Tiny Standoak Babb and Gregory Franks that they are beneficiaries because they are persons to whom the deceased stood in loco parentis. Their claim is based on the fact that Allean raised them after each of their mothers had died. Appellees argue that this fact is of no consequence to the wrongful-death action, because both Babb and Franks were over the age of eighteen and were not disabled at the time of Allean’s death. Thus, Appellees assert that the relationship of in loco parentis terminates at the time the children reach the age of majority, unless they are disabled. The probate court agreed with Appellees.
Babb and Franks do not dispute that they were both adults at the time of Allean’s death and that neither one of them suffers from any disability. They maintain, however, that the loss they suffered as a result of Allean’s wrongful death is not lessened by the fact that Allean was no longer supporting them, financially or otherwise, at the time of her death. In this respect, they contend that their legal position is no different from that of Appellees, who were also adults at the time of Allean’s death. We disagree.
This court has defined the term “in loco parentis” as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties, and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d 496, 500 (1991) (quoting Black’s Law Dictionary 708 (5th ed. 1979)). One who stands in loco parentis to a child puts himself or herself “in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to a legal adoption.” 59 Am. Jur.2d Parent and Child § 75, at 217 (1987) (footnote omitted). The relationship may be abrogated at will by either the person assuming the parental duties or the child. Id. Thus, the relationship is a temporary one, unlike that of adoption. Bryant v. Thrower, 239 Ark. 783, 394 S.W.2d 488 (1965). The question then is when does the relationship end, provided that it is not voluntarily abrogated by either party.
Although this court has not specifically addressed this issue, the general rule appears to be that the relationship of in loco parentis ends when the child reaches the age of majority and is not disabled. See 67A C.J.S. Parent & Child § 154, at 551 (1978) (footnote omitted) (providing that “[o]rdinarily, a person cannot stand in loco parentis to an adult who is not mentally or physically incapacitated from providing for himself’). This is consistent with the general rule that a parent is legally obligated to support his or her child at least until the time the child reaches majority. See Towery v. Towery, 285 Ark. 113, 685 S.W.2d 155 (1985). Once a child reaches majority and is physically and mentally capable, the legal duty of the parent to support that child ceases. Id. Conversely, the duty of support does not cease at majority if the child is mentally or physically disabled and needs support. Id.
Here, there is no evidence that Babb or Franks, both of whom were adults and suffered from no disability, were relying on Allean’s support at the time of her death. Thus, they are not beneficiaries under the wrongful-death statute, as Allean did not stand in loco parentis to them at the time of her death. We are aware of the impact that this decision may have on the ever-increasing number of children in this state who are being raised, but not formally adopted, by grandparents and other relatives. Indeed, we may be tempted to sympathize with Appellants’ position that their loss is in no way lessened merely because Allean was no longer contributing to their support. Nevertheless, we believe that any expansion of the right of recovery under the wrongful-death statute lies within the province of the General Assembly, not this court. We thus affirm the probate court’s ruling on this point. Accordingly, because we conclude that all Appellants lacked standing to claim any interest in the settlement procured as a result of Allean’s wrongful death, we summarily affirm the remaining points on appeal.
BROWN and ImbER, JJ., concur.
Arnold, C.J., and Thornton, J., dissent. | [
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PER CURIAM.
Appellant, Mishon Laron Wright, by his attorney, Stephen E. Morley, has filed a motion for a belated appeal. Appellant was convicted on October 8, 1998, on two counts each of aggravated robbery, terroristic act, and theft of property, and judgment was entered on October 27, 1998. However, Wright filed a motion for a new trial on October 22, 1998, prior to the entry of judgment. Although the trial court entered an order denying that motion on December 17, 1998, the order is void in light of the date of judgment.
In any event, the notice of appeal filed on January 15, 1999, made Wright’s appeal untimely. Mr. Morley admits in the instant motion that he faded to timely file the notice of appeal due to a mistake on his part. We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam). Accordingly, the motion for belated appeal is granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Id. | [
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Donald L. Corbin, Justice.
Appellant Kelley Christopher appeals the judgment of the Pulaski County Circuit Court convicting him of the capital murder of Drajah Morrow and sentencing him to life imprisonment without the possibility of parole. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant’s sole point for reversal is that the trial court abused its discretion in restricting his voir dire of prospective jurors. We find no merit and affirm.
The record reflects that Appellant attacked Mr. Morrow as he was walking down the sidewalk in front of Appellant’s apartment. Appellant stabbed Mr. Morrow repeatedly, using both a butcher knife and a meat fork. The medical examiner testified that Mr. Morrow died as a result of five of those stab wounds. The State alleged that Appellant killed Mr. Morrow with premeditation and deliberation, and thus, charged him with capital murder. The State later agreed to waive the death penalty. Appellant subsequently exercised his right to a trial by jury. During voir dire, Appellant’s attorney attempted to question jurors with regard to lesser offenses, and the following colloquy took place:
[Q]: ... Is there anybody — anybody think that [capital murder is] the only charge there should be when there’s murder involved?
You know, there’s murder in the first degree, murder in the second degree, which each offer lesser punishments but a homicide has still taken place.
Miss Gieringer, do you think it always should be capital murder? Or do you think there’s [sic] circumstances where there should be a lesser?
[A]: I was going to ask you or Mrs. Raney what it is — why do you term it capital murder. I don’t know the difference between them.
[Q]: They get to choose. I don’t have any control over that. So I don’t know. Premeditated and deliberated is what they need in capital murder.
[A]: The other ones are not?
[Q]:. . . [F]irst-degree murder is purpose and second-degree murder is someone causes the death showing extreme indifference to [the] value of human life. And each individual one comes down a little bit on his mental state. Do you think that’s proper? Or do you think it should always be capital murder, death penalty or life without for everyone?
At that point, the State objected to the line of questioning on the grounds that it was unknown whether the jury would receive instructions on any lesser offense. The trial court sustained the State’s objection and instructed Appellant’s counsel to simply ask the prospective jurors if they would be able to foEow any instruction submitted to them. After considering aE the evidence, the jury convicted Appellant of capital murder.
For reversal, AppeEant argues that the trial court improperly restricted his voir dire of potential jurors, thus impeding his abEity to ascertain the jurors’ understanding of the distinctions among the classes of homicide. He claims that this, in turn, restricted his abEity to determine when to exercise his peremptory chaEenges. The State argues that AppeEant is proceduraEy barred from arguing this on appeal because the defense conceded that the jury was acceptable at the close of jury selection. We agree with the State that AppeEant has not preserved this issue for appeal.
In order to preserve an argument for appeal, there must be an objection in the trial court that is sufficient to appraise that court of the particular error alleged. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996); Moore v. State, 321 Ark. 249, 903 S.W.2d 154 (1995). The faüure to object at the first opportunity waives any right to raise that point on appeal. Id. Here, AppeEant never took exception to the trial court’s decision to restrict his voir dire of the potential jurors. Likewise, he never noted on the record that he had any objection to the impanelment of the jury even though he now argues that he was unable to adequately question the potential jurors. It was necessary for Appellant to raise his objection at this point in order to establish that he was prejudiced by the trial court’s decision. Accordingly, Appellant has waived his right to raise this issue on appeal.
Even absent this procedural defect, there is no merit to Appellant’s argument that the trial court abused its discretion in hmiting voir dire. This court has held that the extent and scope of voir dire is left to the sound discretion of the trial judge, and the trial judge’s ruling will not be disturbed on appeal, absent an abuse of discretion. Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998); Ferrell v. State, 325 Ark. 455, 929 S.W.2d 697 (1996). The proper role of a trial judge in voir dire is to direct the process, and he is given great discretion to ensure that no undue advantage is gained. Britt, 334 Ark. 142, 974 S.W.2d 436; Anderson v. State, 278 Ark. 171, 644 S.W.2d 278 (1983).
Rule 32.2 of the Arkansas Rules of Criminal Procedure provides for voir dire examination of potential jurors and specifically grants the trial judge the power to “permit such additional questions by the defendant or his attorney and the prosecuting attorney as the judge deems reasonable and proper.” (Emphasis added.) See also Danzie v. State, 326 Ark. 34, 930 S.W.2d 310 (1996). This court in Danzie held that the rule has been interpreted as providing trial judges with wide latitude in conducting and monitoring voir dire. Furthermore, this court has held that the purpose of voir dire is to discover if there is any basis for a challenge for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). In the present matter, the trial court found that Appellant’s line of questioning was irrelevant because it was unknown at that point whether instructions on lesser charges would even be submitted to the jury. Considering the wide latitude allowed trial judges in managing voir dire, we cannot say that this was an abuse of the trial court’s discretion.
Pursuant to Ark. Sup. Ct. R. 4-3(h), the record has been reviewed for rulings decided adversely to Appellant. No reversible errors were found.
Affirmed. | [
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TOM GLAZE, Justice.
Isaac Colbert brings this appeal from his conviction for possession of a controlled substance with intent to deliver. He argues that the trial court erred in denying his motion to suppress evidence seized from his vehicle. We agree, because the initial stop of his car was constitutionally invalid, and because the admission of the cocaine seized from his car was not harmless error. Therefore, we reverse his conviction.
In the late afternoon of March 18, 1999, a warrant was issued for the search of Colbert’s house, located at 330 West Olive Street in Prescott, Arkansas. The warrant was based on information gained from a confidential informant who had purchased crack cocaine at Colbert’s house. The scope of the warrant covered the Colbert residence and all curtilage, vehicles, persons, and outbuildings on the premises.
Investigator Todd Daley of the Arkansas State Police and Investigator Wayne Kisselburg with the Nevada County Sheriff’s Office went to Colbert’s house at about 6:15 that evening to execute the warrant. However, when they drove up to his house, they saw that his car was not there, so they decided not to search the house at that point. Rather, they chose to drive around Prescott, looking for Colbert’s car, because they had a suspicion that if he was not at home, the drugs might be on him. The officers later testified that they chose to look for Colbert’s car because they wanted him to return home and allow them access to his house so they could avoid damaging it.
As they drove around looking for Colbert, Daley and Kisselburg spotted Colbert’s car turning onto Highway 67, heading away from town. Although Colbert was not speeding or committing any traffic violation, Daley instructed Deputy Danny Martin, who was driving a marked patrol vehicle, to pull Colbert over. Colbert stopped when Martin flashed his blue lights at him. Daley stopped his vehicle in front of Colbert’s and, as Daley departed his car and walked back to Colbert’s car, Colbert’s car began rolling towards Daley. Unsure whether Colbert’s foot had merely slipped off the brake pedal or if he was attempting to flee, Daley drew his gun and ordered Colbert to stop and get out of the vehicle.
As Colbert got out, a piece of plastic fell to the ground. Kisselburg picked it up and saw a substance that looked like crack cocaine. At that time, Daley placed Colbert under arrest for possession of cocaine, and proceeded to search the car. The officers found one rock of cocaine on the driver’s side floorboard, a plastic bag containing cocaine residue and three smaller rocks of cocaine (also on the driver’s side floor), and what appeared to be a crack pipe stuffed down between the passenger’s seat and the center console.
Once the search of the car was completed, Daley executed the search warrant at Colbert’s house around 7:15 p.m. The search turned up $110.00, a .22 pistol, approximately 45 rounds of .22 ammunition; a .22 rifle with scope; a 12-gauge shotgun; and a paper towel containing two rocks of cocaine totaling .576 grams in the butter tray of the refrigerator. The total amount of cocaine found, including that from the car, was a little over 1.3 grams.
After Colbert was charged with possession of a controlled substance with intent to deliver and simultaneous possession of drugs and a firearm, he filed a motion to suppress the evidence seized from the car. Colbert argued that he was stopped without any probable cause, and that the subsequent search of his car and seizure of the cocaine violated his Fourth Amendment rights. The trial court denied this motion, finding that the officers were acting in good faith. The case proceeded to trial, and Colbert was convicted and sentenced to life in prison on each of the two counts.
On appeal, Colbert argues that the trial court erred in denying his motion to suppress the evidence seized from his car because the traffic stop was illegal. He does not challenge the execution of the search warrant at his home or his conviction on the simultaneous possession charge.
When reviewing the denial of a motion to suppress, this court makes an independent examination based upon the totality of the circumstances and reverses only if the decision is clearly against the preponderance of the evidence. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997). The facts and evidence are reviewed in the light most favorable to the state. Id.
Rule 14.1 of the Arkansas Rules of Criminal Procedure provides that a police officer “who has reasonable cause to believe that a moving ... vehicle ... contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is: (i) on a public way....” Reasonable cause, as required by this rule, exists when officers have trustworthy information which rises to more than mere suspicion that the vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. Reyes v. State, 329 Ark. 539, 954 S.W.2d 199 (1997) (citing Bohanan v. State, 324 Ark. 158, 919 S.W.2d 198 (1996)).
Although Colbert does not explicitly rely on Rule 14.1, he bases a large part of his argument on Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), in which this rule figured prominently. The court in that case held that “[t]he right of police officers to stop a vehicle on the public highway for the purpose of searching it exists when there is probable cause for that action, i.e., when the facts within the knowledge of the officers ... amounts to more than a mere suspicion that it contains something subject to seizure.” Id. at 557 (emphasis added).
The officers in this case admitted that at the time they obtained the warrant to search Colbert’s house, they did not have probable cause to search Colbert’s vehicle. Nevertheless, they chose to locate Colbert and his car because, as Officer Daley testified at the suppression hearing, they felt there might be a possibility that Colbert could have taken some or all of the drugs with him. Daley stated, “[although I suspected there may be some drugs, I had no probable cause to believe there was anything in the car.” Based on these facts, the officers appeared to have no more than possible or mere suspicion that Colbert possessed drugs when they stopped Colbert’s car. Consequently, we hold the officers failed to comply with Rule 14.1.
Rule 3.1 also governs police stops. That rule provides that “[a] law enforcement officer lawfully present in any place may ... stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit ... a felony. . . , if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.” (Emphasis added.) Ark. R. Crim. P. 3.1; see also Ark. Code Ann. § 16-81-204 (1987). Rule 2.1 of the Arkansas Rules of Criminal Procedure defines “reasonable suspicion” as “a suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.” See also Ark. Code Ann. § 16-81-202 (1987).
Again, investigators Daley and Kisselburg had only a “bare suspicion” that Colbert had taken the drugs with him in his car; they did not articulate a single reason why they might have thought that to be the case. It is worth noting that the search warrant was issued based upon an alleged controlled buy that took place in Colbert’s house, not his car. Although the State argues that the search warrant, obtained on the basis of a confidential informant’s purchase of cocaine from Colbert, gave the officers reasonable suspicion to stop Colbert’s car, the officers themselves admitted that the purpose of the stop was not to “determine the lawfulness of Colbert’s conduct,” as required by Rule 3.1. Rather, the reason they gave for stopping Colbert was to ask him to return to his house so they could search it when he was present. This, however, does not fall within the language of the rule.
When the initial “reasonable suspicion” is lacking, the stop itself is impermissible. See Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998). In that case, this court held that where the arresting officer’s suspicions were aroused only after he asked Stewart to approach his car, those suspicions could not form the justification needed for the initial stop. Stewart, 332 Ark. at 145, 964 S.W.2d at 797. Such is the case here, as well.
The State also attempts to analogize this case to that presented in Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995), in which this court affirmed the trial court’s denial of a motion to suppress for the reason that the police had reasonable suspicion to stop and search defendant Kilpatrick on the basis of a tip from a confidential informant. However, there, the case turned on the reliability of the informant, who had given detailed information about exactly who was involved in the drug sales and where the sales were taking place. In affirming the trial court, this court held that the prior reliability of the informant, combined with the accuracy of the informant’s information and the detective’s knowledge that the area was known for drug trafficking, “was enough to give the officers specific, particularized and articulable reasons indicating the person or vehicle may be involved in criminal activity.” Kilpatrick, 322 Ark. at 736, 912 S.W.2d at 921.
No such specific, particularized, or articulable reasons were present here. The traffic stop of Colbert’s car was unnecessary; the search warrant could have been executed any time, day or night, and the officers knew they could enter Colbert’s house regardless of whether he was there. The only lawful reason the officers could have stopped Colbert was if they reasonably suspected him of committing a felony, if the stop was reasonably necessary to determine the lawfulness of Colbert’s conduct. However, Colbert was not engaging in any apparent lawless conduct; instead, he was pulled over on the basis of the officers’ unreasonable suspicion that he might have drugs on him. Thus, the officers’ initial stop of Colbert was invalid under Ark. R. Crim. P. 3.1.
Although the stop cannot be justified under the Arkansas Rules of Criminal Procedure, the State argues that the inevitable discovery rule should validate the search of Colbert’s car. That rule provides that evidence otherwise subject to suppression can be admissible if the State proves by a preponderance of the evidence that the police would have inevitably discovered the evidence by lawful means. Thompson v. State, 333 Ark. 92, 966 S.W.2d 901 (1998); Brunson v. State, 296 Ark. 220, 753 S.W.2d 859 (1988). The State urges that if Colbert’s car had been at his house when the officers first drove by, or had the officers merely waited for Colbert to come home, the warrant would then have permitted them to search the car. However, this argument ignores the fact that Colbert was not returning home when the officers spotted him. Because Colbert appeared to be leaving town when the officers decided to stop him, it is impossible to conclude the officers would have inevitably discovered drugs in Colbert’s car when he eventually returned home. Nor did the officers suggest they intended to stake out Colbert’s house to await his return. In short, the State fails to show how the inevitable discovery rule can be employed to validate the stop and search of Colbert’s car.
In its final argument, the State asserts that, even if the trial court erred in allowing the drugs seized from Colberts car, the error was harmless. Again, we must disagree.
As mentioned earlier, Colbert does not challenge his conviction of simultaneous possession of drugs and a firearm,. which resulted from the officers’ finding .576 grams of cocaine and firearms in their search of Colbert’s house. The State argues this contraband can be used also to prove Colbert violated Ark. Code Ann. § 5-64-401 (Supp. 1999), which makes it a felony to possess a controlled substance with the intent to deliver it. The State cites Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994), where the court held that, even where a criminal defendant possesses less than the presumptive amount, a conviction can stand where other proof of intent to deliver is present. In Johnson v. State, 333 Ark. 673, 972 S.W.2d 935 (1998), we held that when an accused is charged with possession of a controlled substance with intent to deliver, evidence of possession of firearms is relevant to prove intent.
The Hendrickson and Johnson holdings are good for the proposition that firearms evidence may be used to prove intent to deliver and can be substantial evidence to affirm a conviction for possession with intent to deliver. However, those cases are not otherwise applicable to the facts in the instant case. Here, the State was allowed to introduce inadmissible evidence taken from Colbert’s car to show he possessed 1.3 grams of cocaine, which, unlike the .576 grams found in Colbert’s house, was more than the presumptive amount Arkansas law established to prove intent to deliver. The prosecutor relied on the drugs seized from Colbert’s car and argued its significance to the jury, and the jury had a right to rely on the drugs taken from the car to find Colbert violated § 5-64-401, since the trial court allowed that evidence at trial.
The State cites Rockett v. State, 318 Ark. 831, 890 S.W.2d 235 (1994), in support of its harmless error argument, but there this court stated that illegally seized items from a motel room did not affect the defendant’s guilty verdict based upon other overwhelming evidence of defendant’s guilt. Here, although the jurors could have found Colbert had violated § 5-64-401 by inferring that he intended to deliver drugs, since firearms were found in his house, that sole factual issue was not presented to them. To the contrary, the State’s case, beginning with its opening argument, relied on the fact that Colbert had over 1.3 grams in his car and house and that the amount of cocaine the General Assembly had established to be sufficient to raise that legal presumption of intent to deliver is one gram. Harmless error is simply inapplicable to the evidence and facts now before us.
For the reasons above, we reverse and remand. | [
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Smith, J.
Appellant was convicted on a charge of selling liquor illegally under the following agreed statement of facts:
“State of Arkansas, vs. “Bob Means.
STIPULATION.
“It is agreed and stipulated in this case:
“First. That on March 10, 1915, defendant, Bob Means, did sell to Lightning Miller a pint of alcoholic, intoxicating liquor.
“Second. That at the time of said sale the defendant and Lightning Miller were at a point on Island 34 west of the Tennessee shore but east of the middle of the main channel of the Mississippi river, opposite Mississippi County, Arkansas.
“Third. That said sale of liquor occurred at ia point on said island opposite Mississippi County east of the middle of the main channel of the Mississippi river and west of the Tennessee shore.
“This stipulation may ¡be introduced in evidence by either party, 'and when introduced shall be binding and conclusive evidence of the facts stated therein.
“State of Arkansas,
“By M. P. Huddleston, Prosecuting Attorney.
“Bob Means, By S. L. Gladish, Attorney.”
Upon the trial of any criminal charge the burden devolves upon the State to prove the commission of the crime within the jurisdiction of the court or, as is commonly said, to prove the venue. This may be done by a preponderance of the evidence, but no attempt is made here to show that the island upon which the liquor was sold is within the boundary of the State of Arkansas, and the stipulation does not prove the venue, unless jurisdiction is conferred upon the courts of this State by the section of Shannon’s Tennessee Code, hereinafter set out ■and by the Act of the General Assembly of this State hereinafter referred to. Cessill v. State, 40 Ark. 503; Kinnanne v. State, 106 Ark. 286; Wolfe v. State, 107 Ark. 33.
It is conceded on behalf of the State that the proof does not show that the island is a part of the State of Arkansas, but it is said that inasmuch as the island lies in the Mississippi River, which river forms the boundary between the States of Arkansas and Tennessee at the point in question that such proof is unnecessary, for the reason that the courts of those States have 'Concurrent jurisdiction of this and all other islands lying within the Mississippi River. The correctness of this, contention presents the sole question in this case.
It is urged that concurrent jurisdiction exists on the winters of the Mississippi River and over the islands lying in said river as the result of the enactment of Act No. 290, of the Acts of the General Assembly of the State of Arkansas of 1909, page 888, iand of section 84 of Shannon’s Code of Tennessee. The said Act 290, is as follows:
“Section 1. That the criminal jurisdiction of the State of Arkansas be and is hereby extended as follows:
“Beginning at a point where the north boundary line of Arkansas intersects the west bank of the Mississippi River ¡and extending east along a line in extension of and parallel to the said north boundary of Arkansas to the east bank of the said Mississippi River; thence south along said bank, and following the meandering thereof to a point where a line drawn east along and parallel to the south boundary of Arkansas would intersect the said east bank of the Mississippi River, thence west 'along said line to a point where the south boundary line of Arkansas intersects the west bank of the Mississippi River.
“Sec. 2. That the State of Arkansas .and her sister States, Tennessee and Mississippi, have concurrent criminal jurisdiction over the parts of said territory lying opposite them and between the lines extending and parallel to their north and south boundaries.
“Sec. 3. That this act be in force when the said States of Tennessee and Mississippi, or either of them, pass a similar act governing the territory described in this act, opposite them and between their said north and south boundaries.”
Section 84 of Shannon’s Code reads as follows:
“The State has concurrent jurisdiction on the waters of any river which forms a common boundary between this >and any other State.”
We judicially know that our act is more recent than the section of Shannon’s Code quoted, and we assume, of course, that the Legislature of this State was aware of this section of (Shannon’s Code at the time of the enactment of our statute quoted above. It will be observed that our act becomes effective in the event only that Tennessee and Mississippi, or either of them, enact similar legislation; and no such legislation had been enacted by Tennessee at the time of the sale of the liquor by appellant.
The difference between our statute and that of Tennessee is manifest. The Tennessee statute assents jurisdiction “on the waters of any river which forms a com mon boundary between this and any other State. ’ ’ It will be observed that it does not say ‘ ‘within the banks of any river forming the boundary of this State.” The sale here was on one of the permanent islands of the Mississippi River, and not upon the waters of the river. One reason for legislation of this character is that when crimes are committed upon boats or other floating objects it is frequently difficult to prove the venue, but this difficulty does not arise in the case of the permanent islands lying in the river. In the case of Brown v. State, 109 Ark. 373, which was a case involving the question of jurisdiction of an offense committed on the waters of a river forming the boundary between Arkansas and Missouri, this court quoted with approval from Rorer on Interstate Law, p. 438, the following statement:
“The existence of concurrent jurisdiction in two States over a river that is a common boundary between them, as more particularly referred to in section 1 of this chapter, vests in each of such States, and in the courts thereof, except as to things permanent, and except as to maritime and commercial matters cognizable by the National government and courts, jurisdiction both civil and criminal, from shore to shore, of all matters of rightful State cognizance occurring upon such river in all parts thereof where it forms isuoh common boundary. Such concurrent jurisdiction obviates the difficulty in judicial proceedings of ascertaining on which side of the main channel of a boundary river occurrences have transpired or crimes have been committed. ’ ’
The offense in the Brown case was committed on a boat tied to a bridge across the St. Francis River, but it appears from the opinion in that case that the State of Missouri had passed an act which gave Arkansas and Missouri concurrent criminal jurisdiction over the whole of the St. Francis River where it is the boundary line between the two States.
Discussing jurisdiction over permanent objects Mr. Rorer, at the same page says: “But in the very nature of things jurisdiction of permanent objects is exclusive in the State on whose side of the main channel they are situated. Concurrent jurisdiction of the abutting States over permanent objects, as islands situated in the river, or permanent erections at either shore, would be utterly impracticable in the administrative affairs of State, as rendering owners- and residents of such property liable to taxation, and 'other liabilities and duties of citizenship and ownership, to each of the 'States. Hence it can never be intended in law that jurisdiction which is concurrent over a river is concurrent also over islands and other permanently fixed objects therein. Nor does the reason of the law of concurrent jurisdiction apply to such objects whose true location in reference to the center of the main channel can always be known or ascertained; but it was to obviate the difficulty of showing on which side thereof occurrences of judicial cognizance had taken place that concurrent jurisdiction was resorted to in law.”'
We need not consider here what jurisdiction would be conferred upon the courts of this State over an island in the Mississippi River which is a part of the State of Tennessee if that State should enact a law similar to Act 290 of our Acts of 1909, nor need we consider what jurisdiction over the waters of the Mississippi River was acquired by the courts of this State upon the passage of this Act 290. Those questions are not presented here.
The condition required by our act to confer concurrent jurisdiction over the island is not met by section 84 -of Shannon’s Code, -and has not been met by any subsequent legislation, and it follows, therefore, that the proof does not show that the circuit court of Mississippi County had jurisdiction of the offense charged, and the judgment of that court is, therefore, reversed and the cause remanded. | [
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Kirby, J.,
(after stating the facts). Appellants insist that they are entitled to have the deeds to appellees cancelled as a cloud upon their title and recover the timber conveyed therein, within the authority of Earl v. Harris, 99 Ark. 112; Yelvington v. Short, 111 Ark. 253, and Newton v. Warren Vehicle Stock Co., 116 Ark. 393, 173 S. W. 819.
The deeds conveying the timber to appellees all contain clauses requiring 'the removal thereof ££as expedi tiously and possible,” identical with those construed in the above causes, except ¡as to the time mentioned, which was twenty, twenty-one, thirty - and thirty-five years herein, and the additional Clause, “It is further agreed that whenever said timber shall have been removed, the party of the first part shall enter full possession of -said land at once, whether the time for such removal -be expired or not. ’ ’
In the first ¡of those.,oases the time mentioned had expired, likewise in -the second, while in the third it was not more than one-half expired, but in each of them -there was a cessation of work ¡after the timber was commenced to be -cut -and removed, and the excuse was the low price of the manufactured product caused by a financial panic and the inability of the company to continue operations. The failure in another instance to procure labor ¡at all times when the weather conditions were favorable to the cutting and removal of the timber, and the removal o-f the mill, which was expected to be used in the manufacture of the timber, -from its location near the timber in the Harris case. There has been no- ¡cessation of activity upon the part of any of appellees, from the time they began the purchase ¡of -timber in Bradley County in the cutting, removal and manufacture of same. Each of said companies owns large tracts of timber and timbered -lands from 75,000 to 80,000 acres, -situate in different parts of the county, and ¡all involved in this -controversy, as the undisputed testimony ¡shows, ¡situated great ¡distances from the mills where it was expected to be manufactured into lumber, as ail the parties to the ¡transaction knew, when the timber was -sold, and the conveyances made.
They also knew that the timber was to be transported or carried to the mills over log railroads -and trams ¡to be constructed by the different lumber companies, each deed granting -a right-of-way for -such railroads and trams over the land on which the timber was conveyed for its removal -and -the -transportation of either timber owned or •after acquired by the grantee. There was only one log road about three 'miles long in the county when most of the timber conveyances were made to appellees, and the Southern Lumber Company and the Arkansas, extended it westward, cutting their timber as they went, in the north end of the county, until they reached Banks, sixteen miles distant, a station on the Rock Island Railroad, which was constructed in 1907. These two companies then made arrangements with the Rock Island Railroad Company for trackage rights and hauled some timber from further down in the county, over its line and their own road, the Warren & Ouachita Valley Railroad. This was their only timber that could be reached during the time it was cut since it was necessary for them to construct a log road twelve miles through territory in which they had no timber in order to reach their other timber and this road was constructed during the two years the timber'was hauled over the Rock Island line, shortly after which period their contract with the Rock Island was cancelled by the ruling of the Interstate Commerce Commission.
One of these mills had in the meantime increased its sawing or cutting capacity from 45,000 feet daily to 150,-000. Immediately upon the completion of the twelve miles of road jointly by the Arkansas and Southern Companies, each began building from its terminus independent log railroads 'and spur tracks and cutting and removing its timber within reasonable hauling 'distance thereof. Neither of these companies had any right to, nor agreement for, the use of any of the facilities of the other company for the transportation of timber to its mills, except the joint .arrangement of the Southern and Arkansas Companies over the Warren & Ouachita Valley Railroad and the Arkansas:Southern, jointly constructed by them. All are rival concerns in their operations in the purchase of timber and manufacture of lumber in Bradley County and each was reaching its own timber with all dispatch consistent with the continuous operation ef its mill plant at full capacity and the difficulties to be overcome in the building of log railroads and cutting and removing the timber. The proof on the part of appellants shows that the timber upon these lands had been conveyed by deed to appellees more than ten years before the suits were brought, that none of it had been cut or removed from any of the tracts of land within that time and that each of said lumber companies had sufficient means .and facilities at hand to have built roads and reached and removed the timber from these lands before the bringing of these suits, if they had constructed their railroads directly to this timber in ithe beginning, instead of as they were constructed to other lands, for the removal of timber therefrom .and without regard to the practical operation of their plants and the extraordinary expense of doing so.
All the parties to the timber deeds knew the location of the mills, how the timber was to be carried to the mills for manufacture, and knew the facilities and lack of facilities for transporting it at the time of making the conveyances, and these facts were recognized when the conveyances were made.as appears in the clause thereof, providing for the removal .of the timber, each of which recites that unless it shall have been removed within a period of twelve, twenty, thirty or thirty-five years, as the case may be, that the lumber company shall pay the taxes on the land after the expiration of that period until such time as the timber is removed.
A like clause in the deed was construed in .all three of the aforesaid cases, the court holding that the parties intended that the grantee should cut and remove the timber from the land as expeditiously as possible and that it was within their contemplation at the time of the execution of the deed, that it might take the grantees longer than the number of years recited therein from the date of the execution of the deed in which to cut and remove the timber, although he proceeded with the expedition required, that he was required to begin to cut and remove the timber promptly after the contract was made and should continue to do so as expeditiously las possible, until it was 'all cut and removed. It was said in the Harris case:
“While this was 'considered essential, yet it was thought by the parties that, under the conditions and circumstances then ¡surrounding the land 'and the removal of the timber therefrom, it might take the defendant longer than five years in which to cut and rembve the same, though he proceeded with proper dispatch, and in that event it was agreed that he should have longer than five years in which to cut 'and remove the same; and, the length of time which he .should have after the five years not being .specified, defendant had a reasonable time after the five years in which to remove the timber if he proceeded during all such time as expeditiously as possible. The specification of five years was made, we think, only for the purpose of fixing the amount which the defendant should pay .for the timber. * * In any event, he was required to cut and remove the timber as expeditiously as possible, and he did not therefore have either five years or any other definite time in which to cut and remove the timber if he did not proceed continuously with all possible expedition from the date of the deed. ’ ’
In Newton v. Warren Vehicle Stock Co., supra, it is said: “Upon the authority of those two cases we must hold that 'the contract in .suit did not give absolutely and in all events ¡any definite time for the removal ¡of this timber. The purpose of this contract was to require the timber to be removed expeditiously, and sufficient time for that purpose was given. This might exceed ten years, or it might not require that length of time; but the right to cut and remove the timber expired when a reasonable time had been given for its expeditious removal. ’ ’
' The intention of the parties must be gathered from ■the written instrument executed, and it can not be done without all the words and provisions thereof are considered, as said in Earl v. Harris, 99 Ark. 112.
“In order to arrive at the intention of the parties as to the time in which the timber under this contract should have been cut and removed, all .parts of the above provision must be taken into consideration. No word should be treated as surplusage and disregarded, if any meaning which is reasonable and consistent with the other parts thereof can be .given to it. This provision of the contract or timber deed should be construed, therefore, so that each part should take effect. ’ ’ (Citing cases.)
The timber deeds, if their terms .are not am-, big'uous, shouid.be construed without the aid of testimony aliunde, and if the intention of the parties can not be ascertained from the written instruments, the other evidence is admissible in case of ambiguity then to show what the meaning of the contract was. There was no attempt made in this case to alter, vary or amend the terms of the written contracts by parol evidence, although the testimony introduced .conduces to show that the parties to the deeds at the time they were executed knew the conditions surrounding the transaction and the conditions that must be met by the lumber companies in the removal of the timber and also its distance from the place of manufacture 'and the means and appliances that must be constructed to cut and remove it to the place of manufacture, and they under these circumstances wrote into each deed the term of years in which the timber was permitted to stand upon the land by the grantor without the payment of any tax by the .grantee and all understanding as the court held in those three cases that the timber must be removed as expeditiously as possible, under the circumstances. In determining the question of a reasonable time, it was proper to take into consideration the location of the land, its accessibility, the character and quantity of the timber thereon, the seasonableness of the weather and the facilities obtainable for cutting and re- , moving’ the timber, “and all other conditions and circumstances which might affect the cutting and removal thereof.” Earl v. Harris, supra; Liston v. Chapman & Dewey Land Co., 77 Ark. 116.
Certainly the clause in .these deeds, not found in the deeds .construed in the other cases, providing that “the grantor, whenever the timber from the lands shall have been removed, should enter into full possession of the land at once, whether the time for such removal be expired or not,” means something and indicates that it was contemplated that the timber might be removed before the period mentioned expired. The recital of such definite period of time .after the expiration of which the grantee was required to pay the taxes on the land if the timber 'had not sooner been removed, supports the court’s announced views that the grantee was required to remove the 'timber, as expeditiously as possible, without regard to the time designated and that the parties contemplated that the timber might sooner be removed but that the whole time mentioned might be required for the purpose and a longer time even, notwithstanding the grantee was proceeding continuously 'and with all possible dispatch.
The impossible is not required by law, nor expected to be performed. Men .are reasonable creatures, and are not presumed to act otherwise in the business affairs of life. These appellees could not cut the timber upon these lands distant from their mills and remove it immediately after the deeds conveying it were made. It was impossible to do it under the conditions existing, so great was the distance intervening. They could not be expected to extend their railroads and use all ¡their facilities to reach these lands as soon as they might possibly have been reached after the conveyance of the timber to them, without regard to the expense incident to doing so, and the consideration of the removal of their other timber nearer to the mills .and more accessible, and the 'best method and the most practical, of reaching with proper dispatch and expeditiously cutting and removing it all. It is true no timber had been or could be removed from these lands, which were inaccessible under the oircurm stances, within ten years of the date of the execution of the conveyances. But it is also true that each appellee had been all the while, from the time of their execution, increasing and extending its facilities for transportation of the timber, that each mill of each .appellee had been running full time and cutting timber to the limit of its capacity, from the time of its construction and the capacity of one mill had been doubled .and another trebled.
The court is of opinion that said appellees under the circumstances shown to exist, were proceeding with proper dispatch to remove the timber from these lands as expeditiously as possible within the meaning of the deeds of conveyance thereof, and that the reasonable time given for its removal (by .said conveyances had not expired and the trial court did not err in its decree, which is affirmed. | [
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Hart, J.
J. L. Burns and M. F. Billington, partners, as Burns & Billington, instituted this action against the Hr eat Southern Fire Insurance Company to recover on two policies of fire insurance. The policies covered certain rice belonging to the insured, .and no question is raised as to the amount recovered. At the time the contract of insurance was made, there was a chattel mortgage on the rice which was executed by Billington.. Doctor Burns procured the policies of insurance sued upon. An application was made to Freeze & Cole, insurance agents, who occupied offices in the same building adjoining those of the insured. The policies were issued upon the oral application of Doctor Burns, and no inquiry was made, by the insurance agents as to the condition of the title of the property, or as to whether or not there was any mortgage upon it. The insurance agents selected the company in which the insurance was- to be written, and kept the policies in their safe until after the fire occurred. The insured paid the premiums at the time the policies were issued, and it was only when they were making out the proof of loss that the insurance company ascertained that there was a chattel mortgage on the property insured, and upon that ground they refused payment. The policies were in the standard form and contained a. provision that they were made and accepted subject to conditions and • stipulations printed on the back thereof. Among the provisions printed on the back is the following :
“This entire policy, unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void, * * * if the subject of insurance be personal property, and be or become encumbered by chattel mortgage. ’ ’
It is admitted that Doctor Bums knew there was a chattel mortgage on the rice at the time he applied for the insurance, and that he did not make any disclosures concerning it because he was not asked about it, and did not know that it was material to the risk. He never read the policies after they were issued, and neither he nor his partner knew that the policies contained the clause above quoted until after the loss had occurred.
Defendant requested the court to instruct the jury to return a verdict in its favor. This the court declined to do, 'and, over the objections of the defendant, instructed the jury to return a verdict in favor of the plaintiffs. From the judgment rendered, the defendant has duly prosecuted an appeal to this court.
Counsel for the defendant contends that the plaintiffs by accepting the policies of fire insurance containing the clause providing that they “shall be void if the property is or becomes encumbered by a chattel mortgage,” are charged with notice -of the condition, and are bound thereby; on the other hand it is contended by counsel for the plaintiffs that where a policy is issued by an insurance company without a written application, the company must be held to have Wiaived the condition of the policy as to encumbrances by chattel mortgages.
The precise issue raised by the appeal has never been decided by this court. In the case of Rhea v. Planters Mutual Ins. Co., 77 Ark. 57, and that of the Home Insurance Company v. Driver, 87 Ark. 171, and other cases, this court has held that where there is a warranty against encumbrances, the insurer is protected by a condition against encumbrances inserted in the policy.
So, too, in the case of German American Insurance Co. v. Humphrey, 62 Ark. 348, the court held that where a policy of fire insurance provides that it shall be void if the property insured afterward becomes encumbered by a mortgage, the giving of a mortgage on the property renders the policy void. .In that case, however, the court said that there is a marked difference between a waiver of conditions made before and those made after the issuance of the policies.
In the case of Phoenix Insurance Co. v. Public Parks Amusement Co., 63 Ark. 187, the court held that a condition against encumbrances is waived by the acts of the agents of the insurer who, having authority to waive con ditions, and knowing that the property was encumbered, attached to the policy permits for additional concurrent insurance upon which additional policies were issued.
The decisions of the courts of last resort of the various States are in irreconcilable conflict upon the question of whether, under the circumstances detailed above, the policy was invalid from the beginning because of the anti-mortgage clause. It is insisted by counsel for the defendant that the policies sued on were the standard form now in common use, and that the insured was required to disclose the nature and extent of his interest in the property because this was a matter which would largely influence the insurance company in taking or rejecting the risk and estimating the premium; that the clause in question was inserted in the policies by the insurance company, and that the insured was bound by the terms of the policies when they accepted them; that under the facts disclosed by the record, there could be no waiver of the conditions of the policies; and that the conditions inserted in the policies were just as binding on the insured as would have been conditions inserted in any other contract.
A leading case sustaining their contention is that of Parsons, Rich. & Co. v. Freeman P. Lane, 97 Minn. 98, 7 Am. & Eng. Ann. Cases 1144. In that case the court cites and discusses many of the cases on both sides of the question.
Glen Falls Insurance Co. v. Michael (Ind.), 74 N. E. 964, 8 L. R. A. (N. S.) 708, is a leading case sustaining the position assumed by the plaintiffs, that where the insurer issues a policy upon an oral application without making any inquiries as to the nature of the title of the property, it will be presumed to have written the policy on its own knowledge, and, hence, to have waived the condition which would have invalidated the policy.
We have carefully examined several of the leading eases on both sides of the question, and, it being a new one in this State, we are at libertv to decide it in accordance with what we think to be the better rule, and that which, we deem to be the more reasonable and more in accord with a spirit of fairness and justice.
It is true, as contended, that the policies were in the standard form, but the condition upon which the policy is now sought to be invalidated was not in the body of the policy, but was printed upon the back thereof. It is also true that .a contract of insurance, like any other contract, should (be given force and effect according to its terms; but it is equally well settled that provisions in the printed forms inserted by the insurance company for its own benefit may be waived. Forms for insurance policies are usually prepared by the insurance companies for general iise and without reference to particular cases. The insured has little voice in framing the terms of his insurance, and none whatever in preparing the form of the policy issued. He must accept the policy as it is prepared and tendered to him by the insurance company.
As a rule, the insured has no knowledge of the necessity of disclosures which long experience has taught insurance companies are necessary for 'their protection, or of what disclosures are important or material. In ordinary contracts of importance, the terms are agreed upon after careful consideration -and discussion bv the contracting parties 'and contracts are usually prepared in duplicate and carefully examined by the parties before they are signed.
As we have already seen, insurance contracts ar e prepared by the insurance company, and the terms used are the result of long experience on their part of things necessary to guard their interests. It is not the custom of fire insurance companies to place the policy to be issued by it before the person whose property is to be insured prior to its delivery to him. He has no opportunity to examine the many printed conditions and stipulations contained on the back of the policy until he has paid the premium for the insurance and’the policy has been delivered to him. Under such circumstances, it ought not to be said that he was bound by the conditions and stipulations in the policy declaring that the policy should be void if there was any encumbrance against the property where he had no knowledge of such condition, -and was not aware that the giving of a mortgage on the property insured in any way affected the risk.
In this case, the anti-mortgage clause was not in the body of the policy, but was in the printed conditions on the (back of the policy along with numerous other conditions and stipulations concerning which no inquiry was made by the agents of the insurance company. • The policies sued on were issued upon an oral application, and the agents of the insurance company made no inquiries of the plaintiffs concerning liens or encumbrances on the property. No stipidations or statements in reference thereto were made by the assured, and they bad no knowledge that such information was material, or that the policies subsequently issued would contain any provision in reference thereto.
They were not aware that if the insurance company knew that any mortgage had been given on the property, it would decline the risk. They paid, and the agents of the insurance company received the premium, and the property was destroyed by fire during the life of the policies, and bef ore the plaintiffs had any notice whatever of ■the anti-mortgage clause in the policy or that such condition would invalidate the policy if there was a mortgage on the property when the policy was issued. The agents who issued the policies had authority to waive conditions in the policy.
No question is raised, but that the loss was an honest one, and none but that the plaintiffs are entitled to recover the 'amount for which judgment was given if the defendant was liable. Under such circumstances, to urge the conclusion that the anti-mortgage clause avoided the policies would be to impute to the insurance company a fraud intended to deceive the assured by issuing policies not binding as contracts of insurance, although it re •ceived arid accepted therefor the premiums, knowing that the assured 'believed the contracts to be valid.
The defendant asked for a directed verdict, and no other instructions were asked by it. The effect of a directed verdict would have been to hold that the contract of insurance was void from the beginning, and that the policies never in fact had any force or validity because of the 'anti-mortgage provisions inserted therein by the insurance company without the knowledge of the insured. If that view 'should be adopted, the insurance company would not only have wrongfully received and accepted the premium from the assured, but would have also misled them into the belief that their property was insured when in fact it was not. So, we think the court was justified, under the circumstances, in finding that the insurance company had waived the anti-mortgage provision in the policies. Allesina v. London & Liverpool & Globe Ins. Co., 45 Oregon 441, 2 Am. & Eng. Ann. Cas. 284; Farmers & Merchants Ins. Co. v. Mickel, 72 Neb. 123, 9 Am. & Eng. Ann. Cas. 993; Humble v. German Alliance Ins. Co., 85 Kan. 140, 116 Pac. 472, Am. & Eng. Ann. Cas., 1912 D. 630; Lancaster Ins. Co. v. Monroe (Ky.), 39 S. W. 434; Dooly v. Hanover Fire Ins. Co. (.Wash.), 58 Am. St. Rep. 26; Hanover Fire Ins. Co. v. Bohn (Neb.), 58 Am. St. Rep. 719; Georgia Home Ins. Co. v. Holmes (Miss.), 65 Am. St. Rep. 611; 3 Cooley, Briefs on Insurance, 2630, 2631.
The complaint in this case, as originally filed, asked for the amounts named in the face of the policies, $2,000 on one, and $2,500 on the other. After the fire, plaintiffs had a conference with the adjuster of the insurance company, and arrived at the amount of the losses which was agreed upon at $1,517.04 upon one policy and $1,896.30 on the other. After this had been agreed upon, the agents of the insurance company found out that a mortgage existed on the property at the time the policies were issued, and on this account refused payment. As soon as plaintiffs discovered the mistake in their original complaint, they filed an amendment thereto in which they asked judgment for the amount which had been agreed upon (between them 'and the agents of the insurance company. They recovered judgment for this .amount.
Under this state of facts, it is insisted by counsel for the insurance company that the plaintiffs are not entitled to the attorney’s fees and penalty provided for under the Acts of 1905, but we do not agree with them in this contention. Soon after the original complaint was filed, it was amended and judgment was asked for the amount which had been agreed upon between the plaintiff and the adjuster of the insurance company as the amount of loss 'sustained by reason of the fire. Judgment was recovered against the insurance company for this amount. If the ' insurance company had desired to avoid the penalty and attorneys’ fee provided for by the statute, it should have offered to confess judgment for the amount sued for in the amended complaint. It did not do so; on the other hand, it denied all liability under the policy. The plaintiffs having recovered the amount sued for in the ¡amended complaint, the court properly .allowed the attorney’s fee and penalty provided for by the statute. Queen of Ark. Ins. Co. v. Milham, 102 Ark. 675; Queen of Ark. Ins. Co. v. Bramlett, 103 Ark. 1.
The judgment will be affirmed. | [
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Annabelle CLINTON IMBER, Justice.
This is a second appeal from the denial of appellant Albert Beshears’s petition for postconviction relief pursuant to Ark. R. Crim. P. 37. Beshears v. State, 329 Ark. 469, 947 S.W.2d 789 (1997) (Beshears II). Mr. Beshears had entered a conditional plea of guilty to possession of a controlled substance with intent to deliver. Ark. R. Crim. P. 24.3(b). He appealed the denial of his motion to suppress evidence seized from his premises pursuant to a search warrant. We affirmed the trial court’s denial of the motion to suppress. Beshears v. State, 320 Ark. 573, 898 S.W.2d 49 (1995). Mr. Beshears subsequently filed a petition for postconviction relief pursuant to Ark. R. Crim. P. 37.
In the petition, Beshears alleged that his counsel was ineffective because he misled Mr. Beshears about the existence of an offer of a negotiated plea; because he failed to file a motion asking the trial judge to recuse; and because he represented a conflicting interest that adversely affected the defense. Mr. Beshears also alleged that his counsel was ineffective for participating, without his client’s permission, in the division of monies seized by forfeiture. The court held a hearing and denied Mr. Beshears’s request for postconviction relief.
We summarized Mr. Beshears’s contentions in the first appeal:
On appeal, Beshears contends that the Trial Court erred in denying relief on his claim that his counsel was ineffective because he represented a conflicting interest at the same time he represented Beshears. Specifically, he argues that his attorney also represented his brother, Eddie, on an unrelated charge; and that during that representation, Eddie made a statement that exculpated Beshears. Beshears contends that his attorney’s choice not to use this statement on his client’s behalf made his guilty plea involuntary and unintelligent. Beshears also makes a two-part argument concerning the recusal of the trial judge. He contends that the trial judge erred in denying his motion to recuse from the postconviction proceeding; and that it was error to deny relief on his claim that his counsel was ineffective for failing to file a motion to recuse prior to Beshears’s conviction.
Beshears v. State, 329 Ark. at 471, 947 S.W.2d at 790. Although we concluded that the trial court did not abuse its discretion in denying the motion to recuse from the postconviction proceeding, we did not reach the merits of Mr. Beshears’s other arguments concerning postconviction relief because the trial court did not enter any written findings of fact and conclusions of law as required by Ark. R. Crim. P. 37.3(c). Id. We reversed and remanded the case to the trial court for written findings of fact and conclusions of law on Mr. Beshears’s claims for postconviction relief. Id.
On remand, the trial court entered an order that contained written findings of fact and conclusions of law. Mr. Beshears now appeals that order and argues, as he did in Beshears II, that he was denied the effective assistance of counsel because his attorney labored under a conflict of interest, and that the trial court clearly erred in ruling otherwise. In response, the State argues that the conflict-of-interest issue is not preserved for our review because the trial court did not address that particular issue in its order on remand.
It is the appellant’s obligation to obtain a ruling at trial in order to properly preserve an issue for review. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). We stated in Oliver that when the trial court does not specifically rule on an issue when it denies Rule 37 relief, and when we cannot tell from the court’s order whether the issue was considered or decided, the issue is not preserved for appellate review and we will not address the point. Id.; see also Matthews v. State, 333 Ark. 701, 970 S.W.2d 289 (1998).
Mr. Beshears candidly admits in his reply brief that the trial court’s written findings do not specifically include a ruling on the conflict-of-interest issue. Therefore, that issue is not preserved for appellate review. Mr. Beshears, however, contends that the trial court’s failure to address the conflict-of-interest issue on remand is grounds for this court “to grant a new trial or dismiss the original criminal action.” We disagree.
Rule 37.3(c) of the Arkansas Rules of Criminal Procedure provides that, following a hearing on the petitioner’s request for postconviction relief, the trial court “shall determine the issues and make written findings of fact and conclusions of law with respect thereto.” The trial court’s original order denying postconviction relief did not contain written findings of fact or conclusions of law. In that circumstance, we will reverse and remand the case for written findings of fact and conclusions of law on the petitioner’s claim for postconviction relief. Beshears II, supra. In contrast, the trial court’s order on remand did contain written findings of fact and conclusions on several issues raised by Mr. Beshears in his petition for postconviction relief. In the later circumstance, we have held that it is the appellant’s obligation to obtain a ruling on any omitted issues in order to preserve those issues for appeal. Matthews v. State, supra; Oliver v. State, supra.
In Matthews, supra, we specifically held that a request that the trial court modify its order to include an omitted issue is not a request for a rehearing that is prohibited by Rule 37.2(d). Thus, after the trial court entered its order on remand, Mr. Beshears could have asked the trial court to modify its order to include a ruling on the omitted conflict-of-interest issue. We note that he did in fact file a petition for reconsideration. That petition, however, did not request a ruling on the omitted issue, but instead requested that the trial court “reverse itself,” which is prohibited by Rule 37.2(d). Matthews v. State, supra. Mr. Beshears failed to obtain a ruling on the conflict-of-interest issue. Consequently, we are precluded from addressing that issue on appeal.
Affirmed. | [
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PER CURIAM.
In 1998, Larry Ladwig filed a petition for writ of mandamus in this court contending that the Honorable Fred Davis, Circuit Judge, had failed to act within a reasona ble time on a petition for postconviction relief pursuant to Criminal Procedure Rule 37 that had been filed in 1997.
Shortly thereafter, Judge Davis entered an order declaring Ladwig indigent and appointing counsel to represent him in the Rule 37 proceeding. The attorney was relieved in November 1998, and a second attorney was appointed. The second attorney was relieved in May 1999, and a third attorney was appointed for Ladwig. A hearing was set for September 2, 1999, on the Rule 37 petition.
When no order had been entered on the Rule 37 petition by November 2, 1999, one of our staff attorneys wrote to Judge Davis to ascertain the status of the matter. There was no response to the letter, and the staff attorney wrote to Judge Davis again on November 16, 1999. There was also no response to that letter, and Judge Davis’s office was contacted by telephone on December 8, 1999.
Judge Davis’s case coordinator said at that time that the hearing had indeed been held on September 2, 1999, and that the hearing record had been prepared and a ruling would be entered by January 1, 2000. On January 10, 2000, a second call was placed to Judge Davis’s office at which time the case coordinator said the order was being prepared and would likely be entered by February 4, 2000. (The compliance report filed by Judge Davis with the Administrative Office of the Courts for the period since the Rule 37 hearing indicated that the ruling would be entered by January 31, 2000.) On February 10, 2000, our staff attorney contacted the circuit clerk who reported that the Ladwig order had still not been entered.
While we have consistently recognized that the independence of the bench in our judicial system requires that the trial judge control his docket and the disposition of matters filed, this is not to say that a motion or case should be delayed beyond a time reasonably necessary to dispose of it. Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989). The Code of Judicial Conduct, Canon 3(B)(8), requires that a judge dispose of all judicial matters promptly. As Judge Davis has not responded to letters inquiring about the Ladwig petition, we must conclude that there is no good cause to justify the delay in ruling on the Rule 37 petition. The writ of mandamus is granted. We direct that Judge Davis enter a order on Ladwig’s Rule 37 petition within seven days of the date of this decision.
Petition granted. | [
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Per Curiam.
Appellant, Roger Lewis Coulter, seeks a belated appeal and appointment of counsel for purposes of appealing the trial court’s denial of relief under Rule 37. Coulter was convicted of capital murder in the Ashley County Circuit Court and sentenced to death. We affirmed the trial court on his direct appeal. Coulter v. State, 304 Ark. 527, 804 S.W.2d 348 (1991). On December 31, 1996, Coulter petitioned the circuit court for relief under Ark. R. Crim. P. 37. The circuit court denied his petition, on October 8, 1999.
Appellant’s counsel did not receive notice of the trial court’s denial until January 25, 2000. Appellant’s counsel promptly thereafter filed a notice of appeal and designation of record on January 27, 2000. Apparently, the notice letter had been sent to counsel’s former address at the now-defunct Arkansas Capital Resource Center.
We recently held in a case involving a death-row inmate also formerly represented by the Arkansas Capital Resource Center that lack of notice to the defendant constituted good cause to permit a belated appeal. In Porter v. State, 339 Ark. 15 (1999), we did so recognizing the fact that modifications to Rule 37.5 should cure the inadequacies of the notice process.
Appellant’s motion for belated appeal is therefore granted, and attorney Alvin Schay is hereby appointed as counsel for appellant for purposes of this appeal. | [
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Donald L. Corbin, Justice.
Appellant Patrick Olive appeals the judgment of the Pulaski County Circuit Court convicting him of first-degree murder and terroristic act and sentencing him to twenty years’ and ten years’ imprisonment, respectively. The evidence showed that on November 16, 1997, Mrs. Bernice Nichols was in her bed when numerous gunfire shots struck her residence. She died as a result of gunshot wounds to her head and neck. Appellant’s sole point for reversal is that the trial court erred in denying suppression of his custodial statement under Article 2, sections 8 and 10, of the Arkansas Constitution. The issue is whether, under the Arkansas Constitution, a defendant’s invocation of the right to counsel after prosecution has commenced on one charge is also an invocation of the right to counsel during custodial interrogation for a separate, uncharged offense. Because this issue is one of first impression, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2 (b)(1). We find no error and affirm.
The record reflects that Appellant was initially arrested for an aggravated robbery that occurred on June 28, 1997. Defense counsel was appointed in that case on January 14, 1998. Approximately two months later, on March 13, 1998, while he was still in custody on the robbery charge, Appellant was approached by officers about the murder of Mrs. Nichols. Prior to asking any questions, the officers read Appellant his Miranda rights. Appellant signed a form indicating that he understood his rights and agreed to waive them. During the interview, Appellant confessed to participating in the murder. He was then arrested for that charge.
Appellant moved to suppress the confession on the ground that it had been obtained outside the presence of counsel. He contended that because he had invoked his right to counsel on the robbery charge, and because he had continuously remained in custody, the statement regarding the murder was taken in violation of his rights to counsel under Article 2, sections 8 and 10. The trial court disagreed and denied suppression of the statement.
We begin our analysis of this issue with an examination of the Supreme Court’s decision in McNeil v. Wisconsin, 501 U.S. 171 (1991). There, the Court held that the defendant’s invocation of his Sixth Amendment right to counsel during a judicial proceeding for a charged offense did not constitute an invocation of his Fifth Amendment right to counsel on unrelated and uncharged offenses. The Court concluded that the right to counsel guaranteed by the Fifth Amendment, as interpreted in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981), was not “offense specific,” but that the right to counsel under the Sixth Amendment was. Id. at 177. The Court explained that once a suspect has invoked the Fifth Amendment right to counsel for interrogation regarding one offense, he may not be reapproached by the police regarding any offense unless counsel is present. On the other hand, the Court concluded:
The Sixth Amendment right, however, is offense specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, “ ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” United States v. Gouveia, 467 U.S. 180, 188 (1984) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)).
Id. at 175. The Court concluded that it would not be sound policy to view the assertion of the Sixth Amendment right to counsel as an assertion of the Fifth Amendment right, as provided in Miranda. The Court explained that the two rights serve different purposes:
The purpose of the Sixth Amendment counsel guarantee — and hence the purpose of invoking it — is to “protec[t] the unaided layman at critical confrontations” with his “expert adversary,” the government, after “the adverse positions of government and defendant have solidified” with respect to a particular alleged crime. Gouveia, 467 U.S., at 189. The purpose of the Miranda-Edwards guarantee, on the other hand — and hence the purpose of invoking it — is to protect a quite different interest: the suspect’s “desire to deal with the police only through counsel,” Edwards, supra, at 484. This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation), and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the “adversarial relationship” produced by a pending prosecution has yet arisen). To invoke the Sixth Amendment interest is, as a matter offact, not to invoke the Miranda-Edwards interest.
Id. at 177-78.
Appellant acknowledges that the holding in McNeil is on point with the particular facts of this case. He urges, however, that the Court’s decision should be limited to those rights guaranteed by the United States Constitution in the Fifth and Sixth Amendments. In other words, Appellant asserts that the rights to counsel under the Arkansas Constitution should be interpreted more liberally than those in the federal constitution. We disagree.
In the first place, Appellant has failed to cite to any authority in support of his argument, and we are not aware of any such authority. To the contrary, this court has consistently viewed the right to counsel provided by Article 2, section 10, as guaranteeing the same right conferred by the Sixth Amendment. See e.g., Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998); Jones v. State, 314 Ark. 383, 862 S.W.2d 273 (1993), cert. denied, 512 U.S. 1237 (1994); Clements v. State, 306 Ark. 596, 817 S.W.2d 194 (1991). Likewise, this court has observed that Article 2, section 8, is “our state constitutional equivalent” to the Fifth Amendment. Clark v. State, 256 Ark. 658, 659, 509 S.W.2d 812, 814 (1974). Additionally, this court has frequently relied on the Supreme Court’s decisions in determining the scope of the right to counsel during custodial interrogation. See e.g., Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999); Esmeyer v. State, 325 Ark. 491, 930 S.W.2d 302 (1996); Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995), cert. denied, 517 U.S. 1226 (1996). Accordingly, we see no reason to deviate from that practice here.
In the second place, this court has twice embraced the Supreme Court’s holding in McNeil, 501 U.S. 171, as a correct statement of the law. In Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), the evidence showed that the severed torso of a woman, later identified as Brenk’s wife, was discovered in Lake Norfolk in August 1990. Around two weeks later, on September 10, Brenk was arrested for failure to pay a misdemeanor fine. Simultaneously, Brenk was served with a petition to revoke his probation. The probation officer advised Brenk that he would need an attorney for the revocation hearing. Brenk requested an attorney, and on September 12, the sheriff informed the attorney that Brenk wanted to speak with him. That same date, officers approached Brenk at the jail and asked him to answer some questions about his wife’s death. Brenk answered several questions, but then indicated that he wanted to talk to his attorney. On appeal, Brenk argued that the statement he made to police should have been suppressed because it was taken outside the presence of counsel and after counsel had been retained. This court rejected his argument on the ground that the invocation of the Sixth Amendment right to counsel does not constitute an invocation of the right to counsel under the Fifth Amendment. This court reasoned:
In the recent case McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204 (1991), the Supreme Court held an accused’s invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda v. Arizona, 384 U.S. 436 (1966), from the Fifth Amendment’s guarantee against compelled self-incrimination. As in the McNeil case, appellant invoked his Sixth Amendment right to counsellor a judicial proceeding unrelated to the present charge, but did not make any indication that he only wished to deal with the police through counsel and, therefore, did not invoke his Fifth Amendment right to counsel. The Sixth Amendment right to counsel is case specific. Appellant’s request for counsel to represent him at the revocation hearing applied only to the revocation matter and not to any other potential charges. Since appellant did not invoke his Fifth Amendment right to counsel by indicating that he wished to deal with the police only through counsel, the Edwards rule which appellant cites does not apply.
311 Ark. at 587, 847 S.W.2d at 5-6 (citation omitted) (emphasis added).
In Landrum v. State, 326 Ark. 994, 936 S.W.2d 505 (1996), this court had yet another occasion to apply the holding in McNeil. The facts there revealed that Landrum was arrested for the rape and aggravated assault of Kristie Anderson on December 12, 1994. He was scheduled to be arraigned on those charges at 8:30 a.m., December 14. On December 13, Landrum was read his Miranda rights and questioned about the murder of Lucille Hassler. Landrum initially made no admissions about the murder; however, he agreed to take a polygraph examination later that evening. Landrum was again informed of his Miranda rights. Afterwards, Landrum was told that he had done poorly on the polygraph. He then asked to speak privately with a particular officer. Landrum agreed to tell the officer what he knew about the murder once he knew what to expect from the prosecuting attorney. The officer then gave Landrum the choice of whether he wanted to talk to the prosecuting attorney that night or wait until the next morning. Landrum elected to wait. The following morning, December 14, Landrum confessed to the murder of Ms. Hassler. Meanwhile, he missed his scheduled arraignment on the Anderson charges. Landrum argued on appeal that his confession should have been suppressed because it was taken in violation of his right to counsel. Specifically, he argued that had he been arraigned as scheduled on the morning of December 14, he would have had an attorney at the time of his confession. This court rejected Landrum’s argument, relying on the Court’s opinion in McNeil, 501 U.S. 171. This court held:
Applying McNeil to the present case, even if Landrum had been arraigned on the Anderson charges on the morning of December 14, 1994, as scheduled, and an attorney had been appointed for that case, he still could have been questioned regarding the murder of Ms. Hassler. Landrum was repeatedly given his Miranda warnings and repeatedly gave valid waivers. There was simply no police misconduct and no connection between appellant’s missing his scheduled arraignment in the Anderson matter and giving the confession in the present case. Therefore, the trial court properly refused to suppress the confession.
Landrum, 326 Ark. at 1003, 936 S.W.2d at 509 (emphasis added).
Applying the foregoing holdings to the facts of this case, we conclude that the trial court did not err in denying suppression of Appellant’s confession. It makes no difference whether we analyze this issue under our constitution or the federal constitution, because we arrive at the same conclusion. An accused’s right to counsel after a prosecution has commenced, guaranteed by both the Sixth Amendment and Article 2, section 10, is case specific and cannot be invoked once for all future prosecutions. Thus, Appellant’s invocation of his right to counsel in the robbery case did not constitute an invocation of the right to counsel during his subsequent custodial interrogation regarding the murder. Furthermore, Appellant was fully informed of his right to counsel as guaranteed by the Fifth Amendment and Article 2, section 8, and he waived those rights prior to confessing to the murder. Accordingly, we affirm the judgment of conviction. | [
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ROBERT L. Brown, Justice.
This appeal involves the application of the statute of limitations to a medical malpractice action brought by a parent on behalf of a minor child. Three issues are raised in this appeal by appellant Karen Shelton as the mother of the minor child, Nathan Piccirilli: (1) the general savings statute should apply to toll the two-year statute of limitations for medical malpractice actions; (2) Shelton’s own claims for medical expenses are not barred by the two-year statute of limitations but should exist as long as the minor child’s cause of action does; and (3) a genuine issue of material fact exists concerning fraudulent concealment by the appellees. We find no merit in any of these claims, and we affirm the order of dismissal and the summary judgment.
The facts leading up to the trial court’s two orders are these. On November 5, 1994, Nathan Piccirilli, who was age eleven at the time, fractured his right arm in a go cart accident. He was taken to Saline Memorial Hospital in Benton where he was treated by Dr. Shelby Duncan, an orthopedic specialist. Dr. Duncan recommended that Piccirilli be transferred to Baptist Medical Center in Litde Rock, and he was transferred on November 7, 1994. At Baptist, Piccirilli was accepted as a patient by Dr. William P. Fiser, a vascular surgeon, who is an appellee. Dr. Fiser determined that Piccirilli needed surgery and consulted with Dr. John Roger Clark, an orthopedic surgeon, whose probate estate is also an appellee.
On November 7, 1994, Drs. Fiser and Clark operated on Piccirilli. Dr. Fiser operated on the brachial artery in the arm which had been crushed or contused by a bone fragment, and Dr. Clark performed a fasciotomy on the arm and resplintered it. The following day Dr. Clark performed a skin release of the volar/flexor compartment, and on November 10, 1994, he did a dressing change under general anesthesia and attempted to evaluate the viability of the forearm muscles.
On November 12, 1994, Dr. Edward R. Weber, another appellee, was brought in as a hand specialist, and he performed a debridement of dead muscle tissue in the forearm. Two days later he did a second debridement and concluded that there were not enough viable muscles left for tendon transfers to reconstruct the hand. Drs. Fiser and Weber recommended amputation to Piccirilli’s family but encouraged them to seek a second opinion. The family had Piccirilli transferred to Arkansas Children’s Hospital on November 15, 1994.
On May 23, 1996, Shelton, as next friend of Piccirilli, filed a medical malpractice action against Dr. Duncan, five Jane Does, and St. Paul Fire and Marine Insurance Co., the malpractice carrier for Saline Memorial Hospital. On April 24, 1998, Shelton filed a first amended complaint, adding Drs. Weber, Fiser, and Clark and Arkansas Sports Medicine and Orthopedic Center and Arkansas Specialty Care Centers as parties defendant. The amended complaint asserted claims of medical malpractice, civil conspiracy, and fraudulent concealment against Drs. Fiser and Clark and Arkansas Sports Medicine, and claims of civil conspiracy and fraudulent concealment against Dr. Weber and Arkansas Specialty Care. Following the amended complaint, the added parties defendants, who are the appellees in this appeal, moved to dismiss the complaint based on the two-year statute of limitations for medical malpractice claims.
On May 28, 1998, Shelton added Robert L. Watson, the executor of the Clark Estate, as a party defendant. On September 24, 1998, she added a cause of action against Dr. Fiser for deceit. The appellees then separately moved for summary judgment on the claim of fraudulent concealment.
In its first order, the trial court granted the appellees’ separate motions to dismiss the malpractice causes of action because they were barred by the two-year statute of limitations. In that same order, the trial court found that Shelton had sufficiently pled fraudulent concealment and that this claim would not be dismissed. In a subsequent order, the trial court granted summary judgment in favor of the appellees on the fraudulent concealment claim. Shelton then took a voluntary non-suit against Dr. Duncan and St. Paul, and the trial court entered a final judgment based on its previous orders pursuant to Ark. R. Civ. P. 54(b).
Shelton’s first point on appeal concerns which savings statute should apply to a minor child’s cause of action for medical malpractice. According to Shelton, the general savings statute for minors (Ark. Code Ann. § 16-56-116(a) (1987)), applies. That section read as follows in 1994:
(a) If any person entitled to bring any action under any law of this state is, at the time of the accrual of the cause of action, under twenty-one (21) years of age, or insane, or imprisoned beyond the limits of the state, that person may bring the action within three (3) years next after attaining full age, or within three (3) years next after the disability is removed.
Shelton also cites our decision in Graham v. Sisco, 248 Ark. 6, 449 S.W.2d 949 (1970), for the proposition that § 16-56-116(a) applies to any action under any law and, thus, tolls the two-year statute of limitations for minor children under our Medical Malpractice Act. Finally, Shelton emphasizes that the General Assembly in 1999 added a repealer clause to § 16-56-116, which stated that all laws and parts of laws in conflict with this act are repealed. 1999 Ark. Acts 18.
We disagree with Shelton’s analysis of the history of the savings statute as it applies to minor children in medical malpractice actions. By Act 709 of 1979, Act 997 of 1991, and Act 735 of 1995, the General Assembly added a savings statute for minors to the Medical Malpractice Act. The savings statute for minors now reads:
(c)(1) If an individual is nine (9) years of age or younger at the time of the act, omission, or failure complained of, the minor or person claiming on behalf of the minor shall have until the later of the minor’s eleventh birthday or two (2) years from the act, omission, or failure in which to commence an action.
(2) However, if no medical injury is known and could not reasonably have been discovered prior to the minor’s eleventh birthday, then the minor or his representative shall have until two (2) years after the medical injury is known or reasonably could have been discovered, or until the minor’s nineteenth birthday, whichever is earlier, in which to commence an action.
Ark. Code Ann. § 16-114-203(c) (Supp. 1999). Otherwise, all causes of action for medical malpractice must be commenced within two years of the medical injury. Ark. Code Ann. § 16 — 114-203(a) (Supp. 1995).
Act 709 of 1979 was enacted seven years after our decision in Graham v. Sisco, supra. Act 997 of 1991 and Act 735 of 1995 were enacted much later. In Graham, we specifically noted that the statute of limitations for medical malpractice did not contain a savings statute for minors. That was rectified by Act 709 and then by Act 997 and Act 735, all of which enacted the controlling statute for minor children who have malpractice actions brought on their behalf. It has long been the law in Arkansas that a general statute must yield when there is a specific statute involving the particular subject matter. See, e.g., Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997); Donoho v Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994); Conway Corp. v Construction Eng’rs, Inc., 300 Ark. 225, 782 S.W.2d 36 (1989). That principle governs this issue, and we hold that § 16-114-203(c) provides the applicable statute of limitations for a minor child’s medical malpractice action. See also Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998) (two-year limitations period in Medical Malpractice Act supersedes limitations period in Product Liability Act). In this regard, we adopt the reasoning of the court of appeals in Smith v. Diversicare Leasing Corp., 65 Ark. App. 138, 985 S.W.2d 749 (1999) (specific savings statute under Medical Malpractice Act for incompetents supersedes the general savings statute).
Furthermore, we do not consider a repealer clause added to the general savings statute to have the effect of repealing the specific savings statute enacted for minor children in the Medical Malpractice Act. To be sure, a general repealer may repeal conflict ing laws. See Winston v. Robinson, 270 Ark. 996, 606 S.W.2d 757 (1980). However, repeals by implication are not favored in interpreting our statutes. See Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998). And, again, repeal does not occur in a situation, such as we have in the instant case, where the specific act establishing a cause of action for medical malpractice contains its own savings statute for minors.
We conclude that Piccirilli does not fall within either of the two exceptions for a minor’s cause of action under § 16-114-203(c). Accordingly, the complaint brought on his behalf is barred by the two-year statute of limitations.
Shelton’s second point is dependant upon our resolution of her first point. She contends that a parent’s cause of action to recover medical expenses incurred on a child’s behalf should be subject to the same limitations period as the child’s cause of action for negligence. As already discussed, her theory is that Piccirilli’s cause of action survived under the general savings statute until age twenty-one. Hence, she reasons that her cause of action should only be restricted by the same limitations period.
Because we have already held that Piccirilli’s complaint had to have been brought within two years of the alleged medical injury, this second issue is effectively resolved. The parent under these facts is subject to the same two-year period for recovery of the medical expenses. See National Bank of Commerce v. Quirk, 323 Ark. 769, 918 S.W.2d 138 (1996). The trial court did not err in this regard.
For her final point, Shelton claims that genuine issues of material fact exist surrounding her fraudulent concealment claim against the appellees, and summary judgment as a result was not appropriate.
This court recently stated its standard of review for orders of summary judgment:
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. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, 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 a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
Adams v. Arthur, 333 Ark. at 62, 969 S.W.2d at 605.
Fraudulent concealment suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of due diligence. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); First Pyramid. Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied 510 U.S. 908 (1993). This court also noted that “[although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law.” Martin, 339 Ark. at 154, 3 S.W.2d at 687.
This court has recently addressed what constitutes fraudulent concealment:
In order to toll the statute of hmitations, we said that plaintiffs were required to show something more than a continuation of a prior nondisclosure. We said that there must be evidence creating a fact question related to “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself.”
Martin, 339 Ark. at 154, 155, 3 S.W.2d at 687 (quoting Adams v. Arthur, 333 Ark. at 68, 969 S.W.2d at 605 and Norris v. Bakker, 320 Ark. 629, 633, 899 S.W.2d 70, 72 (1995)). Accordingly, it is clear from our caselaw that not only must there be fraud, but the fraud must be furtively planned and secretly executed so as to keep the fraud concealed.
In the instant case, Shelton contends that the factual issue for her allegation of fraudulent concealment is created by the deposi tion testimony of Dr. Duncan’s expert witness, Dr. Thomas P. Rooney. Piccirilli’s medical records state that Dr. Clark performed a fasciotomy of the volar compartment of Piccirilli’s right forearm on November 7, 1994. Dr. Rooney testified in his deposition that Dr. Clark’s care and treatment fell below the standard of care because Dr. Clark performed only a partial fasciotomy. A second expert for Dr. Duncan, Dr. Reese Louis Crow, confirmed that opinion in his deposition. Dr. Rooney concluded that the incomplete nature of the fasciotomy caused or contributed to the damage to the forearm. Dr. Rooney also stated that he read a letter written by Dr. Fiser to Shelton’s attorney and that some of the statements made by Dr. Fiser in quoting Dr. Weber have turned out not to be factually true. In particular, Dr. Rooney questioned Dr. Fiser’s statement that there were no viable muscles in the flexor compartment. He pointed out that Piccirilli was later found to have some viable muscles. Additionally, Dr. Rooney referred to Dr. Fiser’s statement that the extensor compartment muscles were not viable. Dr. Rooney emphasized, however, that later some of those muscles were used for tendon transfers.
Shelton further alleges that Drs. Fiser, Clark and Weber discussed among themselves the potential causes of Piccirilli’s injuries, and that following these discussions, Dr. Fiser dictated discharge summaries indicating that the cause of the muscle death in the forearm was an unrecognized injury to the brachial artery. Six months later, Dr. Fiser stated in a letter to Piccirilli’s attorney that the care and treatment provided by Drs. Fiser, Clark and Weber were not causes of the muscle death in Piccirilli’s forearm. This inconsistency between the discharge summaries and Dr. Fiser’s subsequent statements establishes fraud, under Shelton’s theory of the case.
We do not agree that Shelton has raised a genuine issue of material fact regarding fraudulent concealment. First, Dr. Rooney’s and Dr. Crow’s conclusions go to the proper standard of care and, therefore, to negligence rather than to fraud. In addition, the asserted inconsistency between the discharge summaries and Dr. Fiser’s later statement to counsel were not proved to have been concealed in any form or fashion. We need not reach the issue of whether the inconsistency amounted to fraud because our law is clear that in order to toll the statute of limitations, the fraud perpetrated must be concealed. Concealed fraud means fraud which is furtively planned and secretly executed. See Martin v. Arthur, supra. Here, the medical records pertaining to Piccirilli’s treatment and care at Baptist were not concealed but turned over to his first medical expert, Dr. Leland Hall, in 1995. And Drs. Weber and Fiser filed affidavits in support of their motions for summary judgment averring that their findings and opinions were not hidden but disclosed. Shelton failed to offer countervailing proof of concealment and, thus, failed to establish an essential element of the tort.
Affirmed.
Glaze, Imber, and Smith, JJ., not participating.
Special Justice David Keith Rutledge and Special Justice James Pender join in this opinion.
The arm apparently was not amputated, as the first amended complaint states that Piccirilli has regained significant motor function but has little strength in his right hand.
Dr. Clark apparently worked for Arkansas Sports Medicine and Orthopedic Center and Dr. Weber worked for Arkansas Specialty Care Centers.
Act 18 of 1999 also deleted the phrase “or imprisoned beyond the limits of the state” in § 16-56-116(a).
Act 997 of 1991 limited the savings statute for minors to medical injuries occurring from obstetrical care. Act 735 of 1995 expanded the applicability of the savings statute to all medical injuries. The application of Act 735 to a 1994 alleged medical injury was not raised by the parties. The issue raised by Shelton was that a statute dealing with children who are nine or younger cannot govern the cause of action of Piccirilli, who was eleven. | [
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LAVENSKI R. SMITH, Justice.
This is a domestic-relations case involving property division and alimony incident to a divorce and comes before this court on a Petition for Review from the Arkansas Court of Appeals. Appellant Verlon McKay (“Verlon”) originally appealed the Saline County Chancery Court’s decision in the divorce action, and Appellee Debra McKay (“Debra”) cross-appealed. The Arkansas Court of Appeals issued a decision in this matter on May 12, 1999, in McKay v. McKay, 66 Ark. App. 268, 989 S.W.2d 560 (1999), affirming the chancellor in part and revers ing in part. Debra petitioned this court for review. We accepted the case for review pursuant to Supreme Court Rule l-2(e).
Facts
Verlon and Debra were married on June 8, 1991, and divorced on March 12, 1998, by order of the Saline County Chancery Court. There were no children born of the marriage, but Debra had custody of two sons by a prior marriage. At trial, the parties gave conflicting testimony regarding their property. In particular, they disputed the appropriate disposition of a checking account to which both were signatories and a houseboat purchased in 1997. Following a hearing, the chancellor made the following specific findings. He found that the joint account, which had been solely Verlon’s before marriage, remained separate property because all the funds deposited in the account derived from federal disability checks Verlon received from the Veterans Administration and the Social Security Administration. Additionally, the court found that although the account was held in joint names, Verlon controlled the funds. Accordingly, the court also assigned to Verlon all property purchased through that account. With respect to the houseboat, the court found that it constituted marital property based upon a bill of sale issued in the name of both parties. The court did so even though Verlon purchased the boat with money he received by inheritance. The court found that the bill of sale was evidence of a gift by Verlon to his wife. The court also ordered that the stove, refrigerator, and dishwasher belonged to Debra, and that Verlon could either return those items to Debra or pay her $2,000 within the week. In addition, the court found that the parties would keep their own vehicles and would be responsible for their own payments. Finally, the court ordered that Verlon should continue paying alimony in the amount of $100 per week for the remainder of 1998, approximately nine months, and that the parties should each pay their attorney’s fees.
Subsequent to the hearing and the final order filed on March 13, 1998, Verlon entered a Motion for Reconsideration claiming that the chancellor erred in awarding the temporary alimony because Debra never requested alimony in her complaint. As such, Verlon argued, the court had no jurisdiction to enter the alimony award. Debra answered, and also moved to show cause because Verlon had not only failed to pay alimony, but he had also failed to pay the $2,000 or return the appliances ordered by the court in the divorce decree. Upon consideration of the motion, the court set aside its order for alimony, agreeing with Verlon that Debra did not request the award in her pleadings, and that the court could not grant such an award on its own action.
Verlon then filed his Notice of Appeal on April 13, 1998, and Debra cross-appealed in a timely fashion. Specifically, Verlon argued on appeal that the trial court erred in ordering that the houseboat constituted marital property because he had adduced clear and convincing evidence that he did not intend to make a gift of the property. In her appeal, Debra argued that the trial court erred in ruling that none of the personal or real property acquired during the marriage through the joint checking account was marital property. Furthermore, Debra argued that the trial court erred in setting aside its original motion on the award of rehabilitative alimony, and that the court erred in failing to award payment of her attorney’s fees.
In a decision dated May 12, 1999, the court of appeals affirmed the chancellor’s determinations regarding the houseboat and the joint checking account. However, the court of appeals reversed the chancellor’s order granting the Motion for Reconsideration regarding Verlon’s alimony payments. The court based its holding on Rule 15 of the Arkansas Rules of Civil Procedure which allows for the amendment of pleadings to conform to the proof introduced at trial. Applying this rule, the appellate court held that the evidence presented at trial was sufficient to allow for an award of rehabilitative alimony, and the chancellor erred in finding that he did not have jurisdiction to make such an award. The court of appeals remanded that particular matter to the chancellor to compute the proper amount of alimony due Debra. Finally, the court of appeals found that Debra failed to obtain a ruling on her request for attorney’s fees; as such, the issue was waived. We granted Debra’s Petition for Review.
Standard of Review
When we grant a petition to review a case decided by the court of appeals, we review it as if it was originally filed in this court. Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998); Malone v. Texarkana Pub. Schs., 333 Ark. 343, 969 S.W.2d 644 (1998) (citing Williams v. State, 328 Ark. 487, 944 S.W.2d (1997)). We hear chancery cases, including division of property cases, de novo on the record, but will not reverse a finding of fact by the chancellor unless it is clearly erroneous. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998); Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993). The evidence on appeal, including all reasonable inferences therefrom, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee. Looper v. Madison Guar. Sav. & Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987). We will defer to the superior position of the chancellor to judge the credibility of witnesses. Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997); Holaday v. Fraker, 323 Ark. 522, 920 S.W.2d 4 (1996). A grant of alimony or attorney’s fees are issues within the sound discretion of the chancellor and will not be disturbed on appeal absent an abuse of discretion. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993).
Debra addresses three main points in her Petition for Review, all of which were raised below. First, Debra argues that the chancellor erred by finding that the bank-account property remained separate property. Second, Debra argues that the chancellor erred in reversing his decision to grant her rehabilitative alimony. Finally, Debra argues that the chancellor erred in fading to award her attorney’s fees and costs due to the disparity between the parties’ incomes and ability to pay.
Verlon argues that the chancellor erred in finding that the houseboat was marital property because there was no evidence which showed that the funds used to pay for the houseboat were ever processed through the joint account. Furthermore, Verlon argues that he changed the title to the boat from one which listed both his and Debra’s names to one which only had his name once he registered the boat. Regarding alimony, Verlon argues that alimony should not have been awarded by the court of appeals after the chancellor vacated his order because Debra did not comply with the Rules of Civil Procedure in pleading her entitlement to ali— mony. As such, the chancellor’s decision to vacate his original award of alimony was proper.
I. Property Division
Any discussion of division of marital property should begin with the relevant statutory provision. Arkansas Code Annotated § 9-12-315 (Repl. 1998) defines “marital property” as “all property acquired by either spouse subsequent to the marriage,” subject to certain exceptions. There is a presumption that all property acquired during a marriage is marital property. McDermott v. McDermott, 336 Ark. 557, 986 S.W.2d 843 (1999); Layman v. Layman, 292 Ark. 539, 731 S.W.2d 771 (1987); Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988). The applicable exceptions listed in the statute include:
(1) Property acquired prior to marriage, or by gift, or by bequest, or by devise, or by descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent.
Ark. Code Ann. § 9-12-315(b).
The general rule in Arkansas is that once property is placed in both spouses’ names, there is a presumption that the property is held in tenancy by the entirety. McEntire v. McEntire, 267 Ark. 169, 590 S.W.2d 241 (1979). Ramsey v. Ramsey, 259 Ark. 16, 531 S.W.3d 28 (1975); Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988); Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). As this court stated in Ramsey, “[t]his presumption is strong, and it can be overcome only by clear and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof....” Ramsey, 259 Ark. at 19-20. In determining whether property remains under the control of one spouse upon divorce, or is the property of both spouses, “tracing” may be used by the court. “Tracing of money or property into different forms may be an important matter, but tracing is a tool, a means to an end, not an end in itself; the fact that one spouse made contributions to certain property does not necessarily require that those contributions be recognized in the property division upon divorce.” Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986); Cole v. Cole, 53 Ark. App. 140, 920 S.W.2d 32 (1996).
A. The Joint Bank Account
The chancellor ruled that the bank account was not marital property because “all of the money was derived from either his Veterans Administration compensation disability benefits or from his Social Security disability benefits. The money was placed into an account that was held in joint names, and was under the control of the Defendant.” In other words, the chancellor determined that Verlon succeeded in rebutting the presumption that the account was marital property held as tenants by the entirety. Debra argues that the court erred in so doing. We disagree and hold that the chancellor’s decision was not clearly erroneous.
The chancellor, in part, held that Cole should control under the instant facts. In Cole, the court of appeals upheld the chancellor’s finding that a joint account in both parties’ names was actually the wife’s account because the account was funded by inheritance money received by the wife. Additionally, the chancellor in Cole determined that the wife had complete control over the account, that the husband only wrote four or five checks total from the account and only with his wife’s prior approval, and that the parties also had a separate joint account into which they deposited their paychecks and over which they both had control. The court of appeals, in affirming the chancellor’s decision, found that there was clear and convincing evidence to support the chancellor’s decision, and that that decision was not clearly erroneous.
Due to the nature of this case, a close examination of the facts is in order. Before and after their marriage, Verlon derived his income exclusively from disability benefits directly deposited into a checking account. Prior to the marriage that account was in his name only. After the marriage, Verlon added Debra’s name to the account, thus making it a joint account. However, the account continued to be funded solely by Verlon’s disability income. Debra maintained a separate checking account in her name only which she had prior to the marriage. It is undisputed that all of the funds deposited in Debra’s account came from her employment as a driver for Federal Express. During the marriage, the couple maintained two checking accounts. Debra deposited her paycheck from her job with Federal Express in an account for which she was the sole signatory. Verlon also maintained a savings account held in his name only.
At trial, the parties gave conflicting testimony regarding the joint account’s use and- control. Debra stated her belief that the account was marital property. She testified that she wrote checks on the joint checking account for groceries and to pay Verlon’s portion of their gasoline credit card bills. She indicated that they had an agreement that Verlon would pay for the groceries out of the joint account. She testified that Verlon also paid for the utilities out of the joint account. She testified that if her children had a party, she would pay for that out of her own personal account. She testified that in the last year of the marriage, if she stopped by the store to pick something up and she paid for it out of her own account, “I had him reimbursing me. Before that, I would just pick it up and pay for it.” Debra testified that it was their agreement that Verlon would pay for the groceries out of the joint account. Debra also testified that the house furniture was all paid for out of the joint account and that a bedroom suite for one of her children was bought out of the joint account. Debra acknowledged that she never put any of her paychecks into the joint account, nor did she ever deposit any other money into the joint account. She also acknowledged that the Cifra stock that Verlon bought with funds from joint checking account was in his name only.
Verlon gave a different version of the parties’ ownership and use of the joint checking account. Verlon testified that Debra told him every time that she had written a check on the joint account because “it was understood that that account was mine and hers was hers.” Verlon also testified that he made all of the mortgage payments from the joint account. He stated that he looked through all of his statements on the joint account, and Debra never made any deposits on the account. Verlon testified that Debra probably wrote approximately ten percent of the checks out of the account, but that she never wrote a check out of the account unless she first spoke to him about it. Verlon testified that he paid Debra back for the washer and dryer out of the joint account and produced the checks written to her to support his contention. When Debra filed for divorce, Verlon withdrew the funds totaling approximately $12,800 in the joint account.
On appeal, we defer to the trial court’s credibility assessments. Noland, supra. The trial court heard all of the testimony and assessed the credibility of the witnesses. The trial court’s findings indicate that the court chose to accept the testimony of Verlon that he alone controlled the expenditure of funds from the joint account funded by his disability income and that Debra had agreed to this arrangement. The trial court thus apparently found that when Debra expended funds from the account it was with Verlon’s permission or at his direction. Accordingly, the trial court ruled that Verlon provided clear and convincing evidence that the account funds remained his separate property despite the account existing in both names. We cannot say that the trial court’s decision was clearly erroneous and, therefore, affirm.
B. The Houseboat
In his order, the chancellor determined that the houseboat was marital property subject to a one-half division in the divorce. On appeal, Verlon argues that there was no evidence introduced at the divorce hearing which indicated that the money used for the houseboat came from the joint account, or that the inheritance he received from his mother, totaling $35,809.11, was ever commingled with the joint account to which Debra could attach any interest. Verlon argues that the funds are traceable to the inheritance money, and that he used cashier’s checks, instead of checks from the account, to pay for the houseboat.
While it would appear that the ownership of the houseboat would fall under the second exception to marital property listed in Ark. Code Ann. § 9-12-315(b), Verlon misses the point in that the chancellor found that “the houseboat is marital property because it is in joint names although derived from benefits from inheritance. The Court finds a gift was made.” (Emphasis added.) The chancellor specifically found at the close of the hearing that the bill of sale, which was the only written evidence of the ownership of the houseboat, indicated that it was jointly owned by the parties, despite Verlon’s testimony that he later transferred title into his name only. Verlon did not produce any documentation of a change in the title of the boat. In other words, the chancellor found that while the property could be traced to an inheritance, Verlon made a gift to Debra of an interest in the property. The chancellor thereby found that Verlon did not rebut the presumption that once the property was placed in both his and Debra’s names, the property was then held as tenants by the entirety. See Ramsey, supra, and Lofton, supra.
We discussed the situation of the purchase of property by one spouse with inheritance funds which have been processed through a joint account in Jackson v. Jackson, 298 Ark. 60, 765 S.W.2d 561 (1989). In Jackson, the wife used inherited funds to purchase her sister’s one-half interest in real property to which the wife owned the other one-half interest in her name alone. When the wife received the inheritance, she deposited the money in a joint bank account which she held with her husband, and then several days later wrote a check out of that account to her sister for the property. The real property was titled in the wife’s name only. Upon finding that the real property was not marital property, the court found that the wife merely “poured” the inheritance in and out of the joint account and then, significantly, only titled the property in her name upon purchase. We upheld the chancellor’s finding that the husband never exercised any dominion or control over the funds in the joint account, and that the wife never intended to make a gift of an interest in the property to her husband. Applying the appropriate principles to the instant case, we cannot say that the trial court clearly erred in finding that the houseboat was marital property. While the chancellor’s determinations on the houseboat and the joint checking account may appear inconsistent, they, in fact, underscore the fine factual distinctions that often characterize marital-property divisions.
II. Alimony
Verlon cross-appeals the court of appeals holding which reversed the chancellor’s order denying an award of alimony. Verlon contends that Debra should not be provided alimony because she did not properly plead her claim for alimony under the Arkansas Rules of Civil Procedure. In response, Debra argues that she is allowed the rehabilitative alimony under Arkansas law, and that the chancellor erred in deciding that he did not have jurisdiction tp award alimony. We agree and reverse the chancellor’s ruling that he lacked jurisdiction to award alimony.
An award of alimony is not mandatory but is a question which addresses itself to the sound discretion of the chancellor. Wilson v. Wilson, 294 Ark. 194, 199, 741 S.W.2d 640 (1987). Fault is not a factor in the award of alimony unless it meaningfully relates to need or ability to pay. Murphy v. Murphy, 302 Ark. 157, 159, 787 S.W.2d 684 (1990) (citing Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982)). Below, the trial court’s original decree of divorce ordered Verlon to pay Debra rehabilitative alimony through the end of 1998. Upon Verlon’s motion, the court set aside the award of alimony finding that Debra’s pleadings did not request an award of alimony and “it was therefore without authority to make such award.” However, Rule 15(b)of the Arkansas Rules of Civil Procedure states, “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Furthermore, this rule allows these amendments to relate back to the date of the original pleading when the claim or defense arose out of the conduct, transaction, or occurrence set forth in the original pleading. Rule 15(b) does not require that the claim be pled in writing at the time the parties actually try the issues.
It is apparent on the record that throughout the proceeding below the parties litigated the case with full knowledge of Debra’s desire for alimony. In fact, the trial court originally awarded temporary alimony in the amount of $100 per week at a temporary hearing held on November 21, 1997, with no objection from Verlon. The record reflects that the trial court had before it adequate facts upon which to make a determination of Debra’s entitlement to alimony. Rule 15(b) further provides that if the evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the trial court may nonetheless permit amendment of the pleadings in its discretion. We hold, therefore, that the trial court erred in granting Verlon’s motion to set aside the award of alimony.
III. Attorney’s Fees
Finally, Debra argues that she should have been awarded attorney’s fees and costs due to the disparity in the parties’ incomes and ability to pay these amounts. With regard to attorney’s fees, Ark. Code Ann. § 9-12-309 (Kepi. 1998) controls. Under this statute, the chancellor may award attorney’s fees to either party, and will consider an award of additional fees should one party have to return for the enforcement of alimony, maintenance, and support provided for in the decree. A chancellor has considerable discretion to award attorney’s fees in a divorce case. Gavin v. Gavin, 319 Ark. 270, 890 S.W.2d 592 (1995). In determining whether to award attorney’s fees, the chancellor must consider the relative financial abilities of the parties. Anderson v. Anderson, 60 Ark. App. 221, 963 S.W.2d 604 (1998); Paulson v. Paulson, 8 Ark. App. 306, 652 S.W.2d 46 (1983); see also, Lee v. Lee, 12 Ark. App. 226, 674 S.W.2d 505 (1984). We hold the chancellor did not abuse his discretion by declining to award Debra attorney’s fees and costs.
Affirmed in part and reversed in part.
Verlon received VA and Social Security Disability benefits due to an injury he received while serving in the military in 1961. This injury relegated him to a wheelchair. | [
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PER CURIAM.
On January 11, 2000, Ron Oliver, president of First Arkansas Bail Bonds, Inc., filed a petition for writ of prohibition in this court pertaining to the taking of his deposition by Jamie Mann and Affordable Bail Bonds, Inc. (hereinafter referred to as Mann). Oliver contends in his petition that the circuit court lacks jurisdiction to subpoena him and his records for a deposition once that court remands the matter to an administrative board. Oliver also filed an Application for Temporary Relief to stay all further action relating to the deposition pending a decision on his prohibition petition.
The facts leading up to Oliver’s petition are these. Mann received an adverse decision from the Professional Bail Bondsman Licensing Board and filed a petition for judicial review in the Pulaski County Circuit Court with the Licensing Board and Arkansas Professional Bail Bond Company as respondents. On September 14, 1999, the circuit court, by agreement of the parties, remanded the matter back to the Licensing Board for the presentation of additional evidence and for additional findings by that board, if necessary. Thereafter, Mann sought to take Oliver’s deposition, and on September 23, 1999, a subpoena duces tecum was issued to Oliver by the Pulaski County Circuit Clerk and served by the Pulaski County Sheriff’s office. Mann’s notice of the Oliver deposition which was rescheduled for January 12, 2000, was filed on January 10, 2000, with the Pulaski County Circuit Clerk. Oliver moved to quash the deposition, and the circuit court denied the motion. Oliver’s petition for a writ of prohibition followed.
Oliver’s petition in this court raises the novel issue of whether the circuit court loses jurisdiction once the matter is remanded to the administrative board for additional proceedings. We ask for simultaneous briefs on this issue to be filed with this court by the parties and interveners no later than close of business on Thursday, February 3, 2000, and reply briefs filed by Thursday, February 10, 2000. Mann has filed a motion to intervene in the matter now pending before this court. That motion is granted.
The deposition of Oliver pursuant to the subpoena issued by the circuit clerk is temporarily stayed pending the resolution of the jurisdictional question. The motion for clarification filed by the interveners with respect to a hearing to be held before the Licensing Board on January 14, 2000, is denied. | [
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ROBERT L. BROWN, Justice.
This is an appeal from a judgment of conviction where the appellant, Erich Lynn Diemer, was convicted of rape, kidnapping, and residential burglary. He was sentenced to two life terms for rape and kidnapping, and 240 months for residential burglary, with the sentences to run concurrently. He raises two points on appeal: (1) the evidence supporting the convictions for rape, kidnapping, and residential burglary was insufficient; and (2) the trial court erred when it denied his motion to suppress his confession. Neither point has merit, and we affirm.
At trial, the victim in this matter, J.G., testified to the following events. On May 22, 1997, she was sixteen years old and living with her mother and stepfather in a house located on Highway 298 in Saline County. That morning between eight and nine o’clock, she was wearing a one-piece bathing suit under sweat pants and a tee shirt in her house. She saw a car pass by and stop, and Diemer, whom she knew, walked up to her porch. J.G. went outside, and Diemer asked her to go swimming. She refused, and he persisted. When she turned to go back into the house, he pulled the back of her hair and grabbed her from behind.
Diemer forced her into his car and tried to kiss her, which she protested. He drove her to his house, took her into his bedroom, and began fondling her. She told him to stop. They got back in his car, drove by the house of one of his friends, and ultimately drove down a dirt road in the woods. Diemer forced her out of the car and took her to a clearing in the woods by the river. He pulled her over into a mud puddle, turned her on her stomach, pulled out a knife (she had seen a knife in his car), and put it to her throat. He then pulled her sweat pants down, ripped her bathing suit at the bottom, rubbed mud between her legs, and raped her anally. She screamed and tried to get away, and he threatened to cut her. He turned her over and raped her vaginally and finally ejaculated in her mouth.
When he was through, he took her to the river bank and threatened to have “some friends in a white van” take her to Cuba. He also said he would kill her if she came back or told anyone in her family what had happened. Next, he tied her hands behind her back with his shoestrings and rifled through her purse. He took her house key, money, jewelry, and a photograph of her daughter. He then choked her until she blacked out. When she came to, he said: “You’re a hard bitch to kill.” He choked her again, and she passed out for a second time. When she awoke, he had gone. She walked down the road to a house, freed her hands, and called her mother and 911. A deputy sheriff from the Saline County Sheriff’s Department arrived at the scene, and she was taken to the hospital. According to witnesses and photographs introduced into evidence, her wrists were bleeding, she was covered in mud, and she had cuts, bruises, and scrapes on her legs.
Later that same day, J.G.’s stepfather, Bryant Kendall Riggin, came home for lunch and found the door open. Diemer was in the house and pointed one of Riggin’s own pistols, a Ruger semiautomatic, at him. Diemer was acting “crazy,” according to Riggin, and told Riggin he wanted to kill him. Riggin grabbed the gun, pushed Diemer down, and forced him out of the house. He described Diemer as being barefoot, muddy, and wearing short pants.
That afternoon, Diemer was arrested by Saline County deputy sheriffs. According to Sergeant Troy White of the Sheriff’s Department, Diemer told him after his arrest: “I fucked up this time, didn’t I, sarge?” Diemer was interrogated by Detective Kevin Thompson. According to the detective, Diemer first signed a form waiving his Miranda rights and then admitted that he tried to have anal sex with J.G. and had vaginal sex with her. He also admitted, in the detective’s words, that he “copulated on her mouth.” He further stated that he knocked her out down by the river and tied her up with shoestrings. He also said that he tried to steal Riggin’s pistols, but Riggin grabbed him and threw him out of the house.
At trial before a jury, Diemer testified that he and J.G. had consensual sex at his house after drinking alcohol and playing pool. They then went to the river and sniffed crystal methamphetamine, after which she started throwing rocks at him. He hit her and knocked her out, and when she began foaming at the mouth from what he believed to be a drug overdose, he tied her wrists with his shoelaces to keep her from running out into the road. Diemer was convicted and sentenced as previously set out in this opinion.
Diemer raises sufficiency of the evidence as his second point on appeal, but double jeopardy considerations require this court to consider sufficiency of the evidence before the other points raised. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998).
Diemer challenges the sufficiency of the State’s proof relative to the rape, kidnapping, and residential burglary convictions. We do not reach the merits of this challenge, however, because we conclude that Diemer waived consideration of this issue at trial.
Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a defendant in a jury trial move for a directed verdict on insufficiency of the evidence at the conclusion of the State’s case and again at the close of the case. Failure to do so constitutes a waiver of the issue. Diemer moved for a directed verdict at the end of the State’s case on the counts of kidnapping and residential burglary only and then failed to make any directed-verdict motion at the close of the case. Hence, his waiver of the issue for purposes of this review is clear and obvious. See, e.g., King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Smith v. State, 324 Ark. 74, 918 S.W.2d 714 (1996); Davis v. State, 320 Ark. 329, 896 S.W.2d 438 (1995).
Diemer next contends that the trial court clearly erred in denying his motion to suppress his confession. The State argues in its brief that Diemer’s abstract was deficient in that essential matters relating to this issue such as the suppression motion were omitted in contravention of Ark. Sup. Ct. R. 4-2 (a) (6). We further note that the trial court’s ruling on the suppression question also was not abstracted. This case, however, involves a sentence of fife imprisonment, and, as a consequence, we must review all errors prejudicial to Diemer under Ark. Sup. Ct. R. 4-3 (h). Under this rule, it is incumbent on the appellant to abstract all rulings adverse to him on all motions, and it is incumbent on the Attorney General to make certain and certify that this has been done and to brief all points argued by the appellant “and any other points that appear to involve prejudicial error.” When the record is reviewed, it is obvious that a motion to suppress the confession was made and that a ruling by the trial court occurred. Thus, we will address the suppression issue.
The trial court ruled that Diemer made a knowing and intelligent waiver of his Miranda rights and, therefore, his confession was voluntary. Our law is clear that confessions made in police custody are presumed to be involuntary, and the burden is on the State to prove the confession was voluntary and that any waiver of Miranda rights was knowingly and intelligently made. See Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). This proof must be by a preponderance of the evidence. Id. In order to determine whether a waiver of Miranda rights is voluntary, one must decide whether the confession was the product of free and deliberate choice rather than intimidation, coercion, or deception. Riggs v. State, supra; Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). In making this determination, we review the totality of the circumstances and reverse the trial court only if its decision was clearly erroneous. Riggs v. State, supra; Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). This court considers the following factors in making its decision — age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of the detention; the repeated and prolonged nature of the questioning; the use of mental or physical punishment; and statements made by the interrogating officers and the vulnerability of the defendant. Rankin v. State, supra.
Diemer was twenty years old when he was interrogated and had an I.Q. of 77. He was reading on a third-grade level, according to State Psychiatrist Dr. Paul DeYoung. Age and mental capacity are factors to be considered, but they alone do not suffice to warrant the suppression of a confession. See Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702, cert. denied, 519 U.S. 898 (1996), for example, this court affirmed the trial court’s admission of a confession when the defendant was age 17, had an I.Q. of 72, and was reading on a third-grade level.
Various law enforcement officers testified that Diemer was nervous but that he did not appear to be intoxicated at the time he confessed. Detectives Kevin Thompson and Mark Knowles testified that he received the Miranda warnings, signed a waiver form, and acknowledged that he understood his rights. Detective Thompson testified that Diemer was not coerced or threatened to induce a confession. Detective Knowles, who watched the interrogation on a TV monitor in the next room, confirmed that fact.
Diemer testified that the detectives told him what to say before his confession and that Detective Thompson wore his pistol during the interrogation, fidgeted with it, and laid it on the table. This was intimidating, according to Diemer. Detective Thompson testified that wearing a pistol during interrogations was normally not the office policy but that he did not recall whether he was wearing a pistol at the time. He stated that he did not know if he touched his pistol during the interrogation, but that there was no reason for him to be “fidgety.” He denied telling Diemer what to say in his confession. Both Detective Thompson and Detective Knowles denied that any threats were made.
The circumstances surrounding the taking of Diemer’s confession are certainly in conflict, but we have said: “When testimony on the circumstances surrounding the taking of a custodial confession is conflicting, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses.” Wright, 335 Ark. at 408, 983 S.W.2d at 403; see also Riggs v. State, supra. As in the Wright case, no other credible evidence was presented that Diemer was coerced or threatened outside of his own testimony. The trial court heard testimony from Diemer and the police officers involved, assessed their credibility, and denied the motion to suppress. We cannot say that the trial court’s denial of the motion to suppress was clearly erroneous.
The record in this case has been reviewed for other prejudicial error in accordance with Ark. Sup. Ct. R. 4-3 (h), and none has been found.
Affirmed.
He was also convicted of two misdemeanors — assault in the first degree and criminal trespass with sentences in the Saline County jail. Those convictions and sentences are not an issue in this appeal.
The Point To Be Relied On in Diemer’s brief refers to aggravated assault rather than residential burglary, but the argument relates to the residential burglary conviction. | [
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PER CURIAM.
This case involves a dependency-neglect and termination-of-parental-rights action brought by the Department of Human Services (DHS); the case involves three minor children, Brandon Lee Padgett, Anthony Dennis Padgett, and Alexander William Padgett. Regina and Phillip Osburn, William Padgett, and Irving Moreno were respectively named in this proceeding as mother, father or putative fathers; Charles and Angela Young were allowed to intervene pro se as grandparents. A considerable number of pleadings, reports, and hearings have taken place, since the initial petition for dependency-neglect was filed on January 8, 1998. An order was eventually entered terminating parental rights and granting DHS the power to consent to adoption on August 2, 1999. The August 2 order set out the trial court’s reasons and findings for terminating the parents’ parental rights. The order further held that the Youngs, as grandparents, should have no further contact with the children. The trial court retained jurisdiction for a hearing on the termination of parental rights of Irving Moreno and Anthony Padgett, which was scheduled to be heard on August 26, 1999. The partial record fails to reveal what action, if any, was taken in connection with the hearing.
The Youngs appear to have filed a notice on August 2, 1999, of their “intent to appeal.” They also filed a notice of appeal on August 20, 1999. Neither notice designated what order the Youngs appealed; presumably, their appeal is from the August 2 order. The Osburns appealed from the August 2, 1999 order, but later asked the trial court to dismiss the appeal, which the trial court did on October 12, 1999. The Youngs continued to pursue their appeal by filing a partial record with this court’s clerk and asked to proceed in forma pauperis and to be appointed counsel. We granted their in forma pauperis request on November 19, 1999. However, we decline to appoint counsel for the Youngs, since we are unaware of any law that provides they are entitled to appointment of counsel.
In addition, upon review of the partial record provided us, it is not entirely clear that the August 2, 1999, order from which they appeal is a final order that discharges all parties. As previously mentioned above, the trial court retained jurisdiction on the termination of parental rights as to Irving Moreno and Anthony Padgett on August 26, 1999, but we find nothing in the partial record where that matter has been concluded. For this reason, we direct the Youngs and DHS’s counsel, who has made her appearance in the appellate proceeding, to show whether a final order was entered in this case and a timely notice of appeal was filed. Also, from our review, it does not appear that the record has been timely filed with the clerk in this court in accordance with Rule 5 of the Arkansas Rules of Appellate Procedure — -Civil, nor is it clear any extension was requested and received as is provided under Rule 5.
The Youngs will have fifteen days from the date of this per curiam to provide a brief on the jurisdiction issues; DHS’s counsel will have fifteen days in which to respond. If this court is shown to have no jurisdiction, the Youngs’ appeal must be dismissed. | [
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PER CURIAM.
Steven E. Hill was found guilty by a jury of murder in the second degree and was sentenced to eighteen years’ imprisonment. The court of appeals affirmed. Hill v. State, 64 Ark. App. 31, 977 S.W.2d 234 (1998). The mandate of the court of appeals was issued on November 24, 1998. Sixty-five days later, on January 28, 1999, Hill filed in the trial court a motion seeking an extension of time to file a petition for postconviction relief pursuant to Criminal Procedure Rule 37. The motion was granted, and Hill filed his petition on February 24, 1999. The petition was denied, and Hill lodged an appeal of the order in this court. The appeal was dismissed on the ground that the petition filed in the trial court was untimely. Hill v. State, CR 99-1341 (December 9, 1999). Now before us is appellant Hill’s pro se motion seeking to have the appeal reinstated.
As we said when the appeal was dismissed, Criminal Procedure Rule 37.2(c) provides in pertinent part that a petition under the rule is untimely if not filed within sixty days of the date the mandate was issued upon affirmance of the judgment. The mandate in appellant’s case was issued on November 24, 1998, but appellant did not file his petition under the rule until February 24, 1999, which was ninety-two days after the mandate was issued. Appellant argues that it constitutes an injustice for his petition to be considered untimely because he was hampered in various ways in his effort to prepare the petition; and, furthermore, he relied on the fact that the lower court granted his motion for extension of time to file the Rule 37 petition.
Neither argument can excuse the failure to file the petition within the sixty-day period provided in the rule inasmuch as the time limitations imposed in Criminal Procedure Rule 37 are jurisdictional in nature, and a circuit court cannot grant relief on an untimely petition. Benton v. State, 325 Ark. 246, 925 S.W.2d 401 (1996); Hamilton v. State, 323 Ark. 614, 918 S.W.2d 113 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Maxwell v. State, 298 Ark. 329, 767 S.W.2d 303 (1989). In Benton v State, supra, the Rule 37 petition was delivered to the circuit judge who ruled on it, but it was never filed with the circuit clerk. We held that filing the petition with the circuit clerk was critical for purposes of establishing jurisdiction. Similarly, in the case before us the Rule 37 petition was not timely filed to establish jurisdiction. Because the time limits set forth in the rule are jurisdictional in nature, a trial court cannot extend the time to file a Rule 37 petition even if a motion for extension of time is filed before the the sixty-day period allowed by Rule 37.2(c) elapses.
Motion denied. | [
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Robert L. Brown, Justice.
This is an appeal from an order by the trial court granting class certification to the proposed class under Ark. R. Civ. P. 23. The appellants in this appeal are BNL Financial Corporation, the parent company (BNL); BNL Equity Corporation, a wholly-owned subsidiary of the parent; Brokers National Life Assurance Company, a wholly-owned subsidiary of BNL Equity Corporation (BNLAC); Wayne Ahart, chairman of the board of BNL Financial and BNLAC, and also chairman of the board of the predecessor companies; Kenneth Tobey, president of BNL Financial and BNLAC, and president of the predecessor companies; Barry Shamas, executive vice president of BNL Financial and BNLAC, and vice president of the predecessor companies. Prior to 1994, the predecessor company for BNL was United Arkansas Corporation (UAC) and the predecessor company for BNLAC was United Arkansas Life Assurance Company (UALAC). The appellees in this appeal are the plaintiffs and class representatives in the class action — Myra Jo Pearson, Paul Pearson, and James Stilwell.
On April 30, 1996, the Pearsons filed the original complaint against the appellees for violation of the Arkansas Securities Act and specifically for violation of Ark. Code Ann. § 23-42-106(a)(l) (Supp. 1999). The defendants moved the trial court to dismiss the case for lack of subject-matter jurisdiction or to transfer the case to chancery court because the equitable defense of laches had been asserted. The motion was denied. On May 19, 1998, Stilwell joined as a party plaintiff in the third amended complaint. The cause of action centered around misrepresentations or omissions in two public offering prospectuses and a scripted sales presentation. The first public offering sought purchasers of stock in UAC between the dates of May 1, 1989, and May 1, 1991. The second public offering also sought purchasers of stock in UAC. That offering commenced on May 1, 1991, and ended on May 1, 1992.
According to their complaint, the Pearsons purchased stock under both offerings on the dates of April 24, 1991; May 9, 1991; and February 20, 1992. Their total investment in UAC stock was $10,660. Stilwell purchased stock under the first offering on August 30, 1990. His total investment was $2,000. During the first offering, UAC raised $4,110,050 from 1,251 investors. Under the second offering, it raised $2,071,300 from 590 investors.
In their complaint, the Pearsons and Stilwell alleged pervasive deception by the appellants with regard to their entire investment plan Specifically, the Pearsons and Stilwell alleged five material misrepresentations or omissions of material facts that were made through the use of the two public offering prospectuses and the scripted sales presentation. Those misrepresentations or omissions were: (1) that UAC’s primary business objective and principal business activity would be the ownership and operation of a life insurance subsidiary which would primarily offer customary forms of life insurance products; (2) that UAC and its life insurance subsidiary (UALAC) would hire and license captive sales agents and that the captive sales force would use a one-on-one sales method with clients and use personal visits by agents to homes and businesses; (3) that there were no then-existing opportunities known to UAC or its management to purchase any existing insurance company or other business; (4) that the key management team of UAC, primarily appellants Ahart, Shamas, and Tobey, had achieved a strong record of success and built four successful insurance holding companies; and (5) that appellant Tobey had nine or ten years experience in the life insurance business. According to the complaint, contrary to these representations, the primary business activity of the appellants has been dental insurance, a captive sales force was not utilized, opportunities to purchase existing insurance companies were available, and the experience of the management team in the insurance business was misrepresented. The plaintiffs tendered their shares of UAC to the company and prayed for class certification, damages, interest, and attorneys’ fees.
The Pearsons and Stilwell moved the trial court to certify a class consisting of all of the purchasers of UAC stock under the first and second offerings. A hearing was held, and briefs were submitted by the parties.
On August 27, 1997, the trial court entered an order granting class certification.
I. Rule 23 Arguments
The primary thrust of the appellants’ appeal is that these multiple lawsuits simply cannot be tried as a class action because the Rule 23 criteria of typicality, predominance, and superiority have not been met. See Ark. R. Civ. P. 23(a) & (b). The claims of the class representatives are atypical, according to the appellants. Moreover, they contend that common issues of law or fact do not predominate over individual issues. They point out, in particular, that the knowledge of each investor about the investment purchased is an element of the alleged Securities Act violation under § 23-42-106(a)(l). Thus, individual trials on the knowledge issue would be a necessity. In short, they contend that a class action is not the superior means of resolving the multiple causes of action. As a secondary matter, they urge that should this court affirm the class certification, it should direct the trial court to provide more specifics on how the matter will be managed and tried.
We have held that the determination of whether Rule 23 criteria have been satisfied and whether the class action should proceed rests within the broad discretion of the trial court and will not be reversed absent an abuse of discretion. See, e.g., Fraley v. Williams Ford Tractor and Equip. Co., 339 Ark. 322, 5 S.W.3d 423 (1999); Mega Life & Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997); International Union of Elec., Radio & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (broad discretion in trial court extends to protection of absent class members but also to question of whether class action should proceed).
Before we examine the Rule 23 criteria, however, we feel constrained to address a common thread that runs throughout the appellants’ appeal. The appellants contend that discussion of the Rule 23 criteria must, by necessity, bring into play some examination of the merits of the claims including their defenses, and that we should not rigidly enforce our proscription against a merits analysis at this stage. Without weighing the merits, the appellants posit that this court cannot decide whether the claims of the class representatives are typical or that claims of the class members are common and predominate.
The appellants, however, are plowing old ground in raising an issue that has clearly been decided by this court. Most recently, we said:
We have held that neither the trial court nor the appellate court may delve into the merits of the underlying claim in determining whether the elements of Rule 23 have been satisfied. In that regard a trial court may not consider whether the plaintiffs will ultimately prevail, or even whether they have a cause of action. Thus, the propriety of a class action is “basically a procedural question.” (Citations omitted.)
Fraley v. Williams Ford Tractor & Equip. Co., 339 Ark. at 335, 5 S.W.3d at 431 (1999). In Fraley, we held that the trial court could not examine the affirmative defenses of release and consent in deciding whether the class should be certified. The Fraley case was not an anomaly. This court has been consistent in holding that, whether the plaintiff class will ultimately prevail on the merits is immaterial to the issue of class certification. See, e.g., Mega Life & Health Ins. Co. v. Jacola, supra; Farm Bureau Mut. Ins. Co. v. Farm Bureau Policy Holders & Members, 323 Ark. 706, 918 S.W.2d 129 (1996).
We hold once more that we will not look to the merits of the class claims or to the appellants’ defenses in determining the procedural issue of whether the Rule 23 factors are satisfied. We turn then to the Rule 23 criteria of typicality, predominance, and superiority, which we will discuss seriatim. We will conclude by addressing the management point.
a. Typicality
Rule 23(a)(3) requires that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” The appellants vigorously contend that the amount of information provided to the Pearsons and Stilwell concerning their UAC investments defeats their ability to show that their knowledge is typical of the knowledge of all other class members, as Rule 23(a)(3) requires. They further argue that there are substantial questions relating to unique defenses applicable to the Pearsons and Stilwell that would not be applicable to other class members. Their argument is best summarized by a statement on this point from the Second Circuit Court of Appeals that a class certification is not appropriate when a putative class representative is subject to unique defenses that threaten to become the focus of the litigation. See Gary Plastic Packaging v. Merrill Lynch, 903 F.2d 176 (2nd Cir. 1990), cert denied. 498 U.S. 1025 (1991).
We disagree that typicality is lacking in the instant case. Our caselaw is clear that the essence of the typicality requirement is the conduct of the defendants and not the varying fact patterns and degree of injury or damage to individual class members. See Mega Life and Health Ins. Co. v. Jacola, supra; Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997); Farm Bureau Mut. Ins. v. Farm Bureau Policyholders, supra; Chequenet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995); Summons v. Missouri Pac., R.R., 306 Ark. 116, 813 S.W.2d 240 (1991); see also I Herbert B. Newberg, Newberg On Class Actions, § 3.13, at 74-77 (3d ed. 1992).
We have stated that “claims are typical when they “ ‘arise from the same wrong allegedly committed against the class.’ ’’ Farm-Bureau Mut. Ins. Co., 323 Ark. at 711, 918 S.W.2d at 131, quoting Chequenet Systems, Inc. v. Montgomery, 322 Ark. at 749, 911 S.W.2d at 959. In the case before us, there is no question but that the class representatives have alleged a common wrong by the appellants that affects every class member. That conduct surrounds two misrepresented public offerings and the allegations that the appellants induced investors to invest in UAC with either false statements or omissions in the two offering prospectuses and the scripted sales presentation.
We are persuaded that the Pearsons and Stilwell have established that their claims are typical of all class members for certification purposes. There was no abuse of discretion by the trial court on this point.
b. Preponderance
The appellants next contend that Rule 23(b) requires that the trial court find that “the questions of law and fact common to the members of the class predominate over any questions affecting only individual members,” and that that requirement has not been met. They urge that the predominance difficulty in this case relates to the three-year time period for the alleged wrongdoing and the varying degrees of knowledge of individual class members about the offerings during that time frame. For example, they show this court that the first offering covered the period between May 1, 1989, and May 1, 1991, and that the second offering covered the period between May 1, 1991, and May 1, 1992. They then argue that though the class representatives only base their claims on three documents (first offering prospectus, second offering prospectus, and a scripted sales presentation), there was a “host of other information” available to prospective investors in UAC stock during this time. As examples, they direct us to the thirty-two regional meetings held for potential shareholders and investors; a 1991 annual report on the company; an April 10, 1992 letter and brochure sent to shareholders; and forty-four public filings with the Arkansas Insurance Commissioner relating to the insurance being offered by UAC and UALAC.
The appellants contend that the availability of this additional information to class members raises substantial individual questions of the degree of knowledge surrounding the UAC investment. They claim that by defining the class as all purchasers who purchased UAC’s securities, the trial court’s analysis was “too cursory” and ignored the critical element of each class member’s cause of action, which is that purchaser’s knowledge of what the investment entailed. They maintain that this court has previously refused to certify a class in two mass tort actions in the medical field where individual issues relating to knowledge predominated. See Baker v. Wyeth-Ayerst Lab. Div., 338 Ark. 242, 992 S.W.2d 797 (1999); Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995).
The starting point for our examination of the predominance issue is whether a common question of law or fact exists in this case for all class members. See Ark. R. Civ. P. 23(b); Mega Life & Health Ins. Co. v. Jacola, supra. Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991); International Union of Elec., Radio & Mach. Workers, supra. We conclude that it does. That common question relates to the allegations of fraudulent representations or omissions by the appellants in the two prospectuses and scripted sales presentation which induced the class members to buy the UAC securities. The next issue is whether this common question predominates over individual questions. We believe that it does.
This case, to our way of thinking, raises an issue comparable to that asserted in Seeco, Inc. v. Hales, 330 Ark. 402, 95.4 S.W.2d 234 (1997). There, the argument mounted by the defendants was that the class sought recovery on a fraud theory which required, as an element, proof of reliance on the misrepresentation by each class member. We held that even though lack of reliance by individual class members might be an argument raised by the defendants as a defense, the existence of the alleged scheme to defraud royalty owners was a common question for all class members. We concluded that the alleged scheme was the overarching issue and the starting point in resolving the matter. We held to the same effect in Fraley v. Williams Ford Tractor and Equip. Co., supra, where the plaintiffs alleged that the equipment dealer had intentionally converted insurance premiums from the class members as the central fraudulent scheme. Proof of that scheme, we concluded, predominated over individual questions.
Similarly, in the case at hand, a common question..of misrepresentation under § 23-42-106 (a)(1) is the linchpin of every class member’s case and must be resolved as the first step. Resolution of this issue predominates over potential individual issues relating to investor knowledge or affirmative defenses. . ''
The medical mass tort cases, on the other hand, are readily distinguishable in that individual issues clearly predominated in those cases. In Arthur v. Zearley, supra, the thrust of the plaintiffs’ cause of action in the Orthoblock cases was lack of informed consent under the Medical Malpractice Act, which necessarily brought into play the extent of the information imparted'to each patient by his or her physician and that patient’s medical condition. In Baker v. Wyeth-Ayerst Lab. Div., supra, which was a products-liability case related to prescriptions for differing combinations of diet drugs, the cause of action was premised on varying combinations of drugs taken by each patient as well as time of patient usage, quantities taken, and medical histories. Thus, in neither Arthur v. Zearley, supra, nor Baker v. Wyeth-Ayerst Lab. Div., supra, did a common fraudulent scheme predominate over the individual circumstances of each patient. In short, the information conveyed by the defendant physicians varied with each patient in the Orthoblock cases and, likewise, the prescriptions of the diet pills in Baker, were patient specific. This is categorically different from the matter at hand where all class members predicate their claims of § 23-42-106(a)(l) misrepresentations on the offering prospectuses and the scripted sales presentation.
We hold that the trial court correctly found that the wrongful conduct alleged is common to the class and that this issue of liability predominates over individual questions.
c. Superiority
Next, the appellants contest the trial court’s conclusion “that a class action is superior to other available methods for the fair and efficient adjudication of the controversy” under Rule 23(b). The appellants’ contention on this point is analogous to their predominance argument. They claim that the trial court’s “simple” finding that the class was numerous and the claims small was not enough to satisfy the superiority requirement. They again contend that the knowledge issue for individual claimants will render a class action grossly inefficient and will undercut any notion of judicial economy. Only three claimants filed the lawsuit, they emphasize, and this hardly justifies the time and expense of a class action.
Again, we disagree. The avoidance of a multitude of suits lies at the heart of any class action certification. And though smallness of the claims may not be the sole basis for certifying a class, it is a factor to be considered in deciding superiority. See International Union of Elec., Radio & Mach. Workers v. Hudson, supra. Furthermore, here the alternative to a class action would be numerous joinders, wholesale intervention, and several hundred small lawsuits which would be totally inefficient and wholly unmanageable. Surely, neither the parties nor the judicial system would benefit from a legion of lawsuits that are numerous, duplicative, and time consuming. See Snider v. Upjohn, 115 F.R.D. 536 (E.D. Pa. 1987).
There is, too, the point that without the class action procedure, numerous meritorious claims might go unaddressed. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). Plus, by limiting the issues to be tried to the ones that are common to all class members such as the alleged scheme of misrepresentation or omission and common defenses, the trial court can achieve real efficiency. See Seeco, Inc. v. Hales, supra.
The appellants raise the spectre that with the potential for individual suits splintering on issues like investor knowledge, trial of the class action could unravel and turn into a procedural nightmare. We will not speculate on this eventuality. We simply hold that at this stage there is a common issue related to the appellants’ conduct and liability that predominates over individual questions and renders a class action the superior method for litigating the matter.
We are further convinced that a class action is fair to both sides. As we said in Seeco, Inc. v. Hales, supra, and Lemarco, Inc. v. Wood, 305 Ark. 1, 804 S.W.2d 724 (1991), even if the trial court eventually decides that individual claims have to splinter in bifurcated proceedings, resolution of the issue of wrongful conduct common to all class members can achieve real efficiency as a starting point. We also note that there is a real benefit to the appellants in a class action in that they have the opportunity to nip multiple claims in the bud with common defenses such as the investors’ knowledge of the investment purchased, lack of the appellants’ knowledge concerning the misrepresentations, and statute of limitations. We conclude that the superiority requirement has been met.
d. Management
Because we hold that the contested Rule 23 criteria have been satisfied, we now address the appellants’ request for guidance from the trial court on how the trial of this matter will be managed.
We first observe that the trial court in this case has a firm grasp of what is involved in this class action as is evidenced , by its well-reasoned, twenty-four-page order granting class certification. The trial court determined that a class action was appropriate, after analyzing the Rule 23 factors that are at issue in this appeal. This court has recognized that the ability to manage and guide a class action is a necessary part of a trial court’s decision to certify. See International union of Elec., Radio & Mach. Workers v. Hudson, supra. We further have alluded to the substantial power in the trial court to manage a class action. Id.; see also Summons v. Missouri Pac., R.R., supra.
We have also noted the ability of the trial court to decertify should the action become too unwieldy. Rule 23 specifically contemplates that circumstance when it states: “An order under this section may be conditional and it may be altered or amended before the decision on the merits.” Ark. R. Civ. P. 23(b). In the recent case of Fraley v. Williams Ford Tractor & Equip. Co., supra, we quoted from Newberg On Class Actiorasregarding the decertification option and the fact that this flexibility in the trial court is vital to “judicious use of the class device.” See I Newberg On Class Actions § 7.47, at 146 (3d ed. 1992).
We have no hesitancy in placing the management of this class action in the trial court. That is what the rule contemplates, and, as already described, real efficiencies can be obtained by resolving common issues, both for the plaintiff class and the appellants. Were we, on the other hand, to speculate on class management or direct the trial court at this stage to present the parties with a management plan, we would be interfering in matters that clearly fall within the trial court’s bailiwick.
II. Statute of Limitations
The appellants next take the trial court to task for refusing to consider their statute-of-limitations defense to class member claims as a class certification issue. The trial court was correct. We have made it clear in our cases that any analysis of the limitations defense at the class-certification stage is a merits determination, and, therefore, inappropriate. See Fraley v. Williams Ford Tractor and Equip. Co., supra; see also Seeco, Inc. v. Hales, supra, quoting, I Herbert B. Newberg, Newberg On Class Actions § 4.26, at 104 (3d ed. 1992). The trial court was correct in stating that consideration of the limitations defense amounted to delving into the merits.
Ironically, after stating the law correctly in its order, the trial court proceeded to decide the limitations question. It was error for the court to do so, and we will disregard its discussion of this issue.
III. General Issues
The appellants conclude that the trial court’s certification order would require bifurcated trials. This raises, in their judgment, an issue under the Seventh Amendment to the United States Constitution. They contend that any process which contemplates using two different juries for one lawsuit to resolve common issues and individual issues violates this amendment.
We said in Seeco, Inc. v. Hales, supra, when a comparable issue was raised under Article 7, Section 2, of the Arkansas Constitution, that we did not know at the certification point whether more than one jury would ultimately be necessary. This continues to be our position. We will not speculate on the question of the inevitability of bifurcated trials or issue an advisory opinion on an issue that well may not develop.
The appellants also raise the issue of subject-matter jurisdiction in connection with their affirmative defense of laches. Raising this defense, they maintain, requires dismissal or a transfer of the entire case to chancery court. This is the same issue that was presented to the trial court in 1996 and denied. The appellants are incorrect in their conclusion. It is true that laches is a defense cognizable only in equity when equitable relief is sought. See Landreth v. First National Bank, 45 F.3d 267 (8th Cir. 1995); J.W Reynolds Lumber Co. v. Smackover State Bank, 310 Ark. 342, 836 S.W.2d 853 (1992). It is not true, however, that a defendant can assert an equitable defense to a complaint at law and thereby divest a plaintiff of jurisdiction to have his claim heard in circuit court. The appellants draw our attention to Schultz v. Rector Phillips Morse, Inc., 261 Ark. 769, 522 S.W.2d 4 (1977), where we held that the affirmative defense of laches was applicable to a claim under the predecessor statute to § 23-42-106. But in Schultz, the plaintiffs initiated their suit in chancery court. That is altogether different from the situation we have before us.
We conclude that the trial court did not abuse its discretion in any respect in certifying this class.
Affirmed.
Thornton, J., dissents. | [
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ANNABELLE Clinton Imber, Justice.
The appellant, Henry Jackson Smith, was charged with two counts of rape for engaging in sexual intercourse or deviate sexual activity with his son, J.F., and his daughter, T.F., in violation of Ark. Code Ann. § 5-14-103 (Repl. 1997). Both of the victims were under the age of fourteen at the time they were alleged to have been raped by Mr. Smith. After a bench trial, the Pulaski County Circuit Court convicted Mr. Smith on both counts and sentenced him to two concurrent life terms in the Arkansas Department of Correction.
Both victims testified at the bench trial. J.F., age eleven at the time of the trial, testified that Mr. Smith held a gun to his head and then “sticked [sic] his private part into [J.F.’s] behind.” According to J.F., Mr. Smith threatened to kill him, his sister, and his mother if J.F. told anyone about the incident. J.F. also testified that Mr. Smith forced him to “suck his private” about two times a day since he was five or six years old. Furthermore, J.F. testified to an incident in which he saw Mr. Smith, with his pants pulled down, laying on top of his sister, T.F., whose pants were also pulled down. T.F., age ten at the time of the trial, testified that Mr. Smith engaged in sexual intercourse with her “every Saturday or Sunday when mama worked.” She further testified that Mr. Smith put a gun to her head and threatened to kill her, her brother, and her mother if she told her mother about the sexual activity. At the conclusion of her direct examination, T.F. identified Mr. Smith as the person who had raped and sexually abused her.
The State also introduced a taped statement that had been given by Mr. Smith prior to trial. In that statement, he confessed to rubbing T.F.’s clitoris with his index finger and laying on top of her and “hunching her on the stomach,” while they were both naked and he wore a rubber on his penis. He maintained, however, that his penis never touched or penetrated her vagina. Mr. Smith also denied having anal sex with J.F., but acknowledged that he showed J.F. how to masturbate by touching J.F.’s penis and having J.F. touch his penis.
Mr. Smith took the stand in his own defense at the trial and denied sexually penetrating either of his children. He admitted, however, that he had oral sex with T.F., that he had rubbed her vagina with his fingers, and that he had laid on top of her with his penis on her stomach while both were naked and “hunched” on her stomach. Moreover, he admitted showing J.F. how to masturbate. On cross-examination by the State, he denied holding a gun to the children’s heads, but acknowledged that he told T.F. not to tell her mother about the sexual activity. Finally, he admitted using a rubber when he was on top of T.F. “so it wouldn’t make a mess.”
Denise Maples, a psychotherapist and counselor, testified that both children suffered from post-traumatic stress disorder and that both had regressed in developmental achievement as a result of being abused. She also testified that T.F. had become enuretic and was forced to take medication for the condition. With regard to J.F., Ms. Maples testified that he was extremely traumatized by the abuse, had repeated nightmares, and had developed an extreme fear of other men who entered his home. J.F. also had to take medication for his condition. According to Ms. Maples, J.F. tended to disassociate at times when he would become traumatized and think about his past abuse. Kay Lynn Franklin, the children’s mother, testified that T.F. tried to climb out of a two-story window as a result of the abuse, and J.F. hid in a closet because he was afraid someone was going to hurt him.
At the beginning of the bench trial, the following colloquy took place between the prosecutor, the defense counsel, and the trial court:
PROSECUTOR: Your Honor, I have one question that I would like — or I guess motion that I would like to ask. The children in this particular case have been traumatized somewhat, and we believe that the presence of the defendant is going to have some problem with them being able to testify. I would ask to simply be able to have them testify with the chair facing outside his line of sight.
The Court: Sure.
PROSECUTOR: In other words, have the chair facing over there.
The Court: I don’t mind that, as long as he’s here and the attorneys and everybody can observe the child. Sure, I don’t have any problem with that.
Defense Counsel: Your Honor, I just would like to object just for Mr. Smith’s benefit, that he should be able to confront them face-to-face.
The Court: I don’t think confronting means sitting face-to-face with them. Confronting them, being they’re in the courtroom, hearing the testimony and seeing them and so forth. That’s what confronting means; not being able to stare them in the face. They’ll be here in the courtroom where he can see them and see them testify. They don’t have to look at him, and there’s nothing wrong in turning the chair over there so they don’t have to look at him.
Mr. Smith now appeals his rape convictions and alleges that the trial court erred in denying him his right to confront J.F. and T.F. face-to-face during the trial without first making specific findings that such an abridgment of the Confrontation Clause in the Sixth Amendment to the United States Constitution and the Arkansas Constitution was necessary to further an important public policy, and that the procedures to determine the reliability of the children’s testimony were still preserved and available.
The Confrontation Clause in the Sixth Amendment to the United States Constitution states: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. ...” Article 2, section 10, of the Arkansas Constitution repeats that same right of confrontation. We have consistently interpreted both clauses to provide identical rights:
The [S]ixth [A]mendment to the United States Constitution and Art. 2, 10 of the Arkansas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The right of confrontation provides two types of protection for a criminal defendant: the right physically to face those who testify against him and the opportunity to conduct effective cross-examination.
Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). See also, Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987); Miller v. State, 269 Ark. 409, 601 S.W.2d 845 (1980). The United States Supreme Court held in Coy v. Iowa, 487 U.S. 1012 (1988), that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Two years later, the Court held that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with witnesses against them at trial. Maryland v. Craig, 497 U.S. 836 (1990). The Court further held that the right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where the trial court makes a case-specific finding that the denial of such confrontation is necessary to further an important public policy, such as protecting a child witness from trauma, and only where the reliability of the testimony is otherwise assured. Id. Mr. Smith, in his only point on appeal, argues that the trial court erred when if failed to make the findings required by Maryland v. Craig.
The two-part test established in Maryland v. Craig applies only when a criminal defendant has been deprived of his constitutional right to a face-to-face confrontation with the witnesses against him. Id. Consequently, as a threshold matter, we must first decide whether Mr. Smith has been deprived of his constitutional right to a face-to-face confrontation with his accusers.
In Coy v. Iowa, the Court held that the defendants constitutional right to confront the witnesses against him face-to-face was violated when a screen that was authorized by a state statute was placed between the defendant and the witnesses during their testimony. When the screen was in place, the defendant could “dimly perceive” the witnesses, but the witnesses could not see the defendant at all:
The screen at issue was specifically designed to enable the complaining witnesses to avoid viewing [the defendant] as they gave their testimony, and the record indicates that it was successful in this objective. It is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.
Coy v. Iowa, supra.
The undisputed facts in this case are that the trial court allowed the child witnesses to testify while sitting in a witness chair that faced “outside of [Mr. Smith’s] line of sight.” The trial court noted that the witnesses did not have to look at Mr. Smith, but that they would be in the courtroom where Mr. Smith, the attorneys, and the trier of fact could see and hear them testify. Although the witness chair was positioned so that the witnesses did not have to look at Mr. Smith while they testified, the record reflects that they were not precluded from doing so. This is evidenced by the undisputed fact that T.F. identified Mr. Smith during her testimony as the person who raped her. During her direct examination, the prosecutor asked T.F. if she could “point at him and tell us if you see the person in here that did this to you? Could you point at him for us?” The record then indicates that T.F. “[p]ointed at defendant.” The witnesses in this case were therefore not physically prevented from looking at Mr. Smith. In contrast, the witnesses were physically blocked from seeing the defendant by a one-way screen in Coy v. Iowa, and by a one-way closed-circuit television in Maryland v. Craig. Here, the witnesses were able to look at Mr. Smith if they chose to do so, as shown by T.F.’s in-court identification of Mr. Smith. Nor were they required by the Confrontation Clause to look at Mr. Smith: “The Confrontation Clause does not, of course, compel the witness to fix his eyes upon the defendant; he may studiously look elsewhere, but the trier of fact will draw its own conclusions.” Coy v. Iowa, supra. (Emphasis added.)
Based on the undisputed facts in this case, we conclude that nothing prevented the witnesses from hearing or seeing Mr. Smith and nothing prevented Mr. Smith, the attorneys, and the trier of fact from hearing or seeing the witnesses as they testified against him. We therefore hold that Mr. Smith has failed to establish as an initial matter that there has been a deprivation of his constitutional right to a face-to-face confrontation with the witnesses against him.
Our holding is supported by cases from other jurisdictions. For example, in People v. Sharp, 36 Cal. Rptr. 2d 117 (Cal. Ct. App. 1994), the California Court of Appeals held that the defendant was not deprived of his constitutional right to confront witnesses when the prosecutor positioned herself in the courtroom so that the child victim, Tammy G., did not have to look at the defendant while testifying about his acts of sexual molestation.
Similarly, in State v. Utah, 806 P.2d 204 (Utah Ct. App. 1991), the defendant claimed that his constitutional right of confrontation was denied when his daughter, the victim, was seated out of his direct line of sight during her testimony. The defendant and his counsel were seated at the table customarily assigned to the prosecution, in order to remove the witness from the defendant’s direct line of sight. Id. The Utah Court of Appeals rejected the defendant’s claim that his confrontation rights were denied based upon the following conclusion: “We find no constitutional requirement that an accused be able to establish eye contact with a witness who is looking straight ahead.” Id. Finally, the Indiana Court of Appeals held that there was no Confrontation Clause violation in placing the witness chair at a slight angle toward the jury and away from the accused. Stanger v. State, 545 N.E.2d 1105, 1112-14 (Ind. App. 1989), overruled on other grounds, Smith v. State, 689 N.E.2d 1238 (Ind. 1997). The court stated:
Where, as here, the method of eliciting testimony permits jury, witness, and defendant all to see and hear each other and possesses the added virtue of actually facilitating the truthfinding function at the trial, positioning the witness away from the defendant is but a reasonable limitation on the defendant’s interest in physical confrontation. As the Court noted with respect to cross-examination, confrontation does not mean in whatever way and to whatever extent a defendant might wish.
Id. (citations omitted). See also, Brandon v. State, 839 P.2d 400 (Alaska Ct. App. 1992) (defendant’s right to confrontation not infringed by child testifying from small chair and table in courtroom rather than witness stand).
For his only point on appeal, Mr. Smith argues that the trial court erred when it failed to make the specific findings required by Maryland v. Craig. That argument, however, makes an assumption that Mr. Smith has been deprived of his constitutional right to a face-to-face confrontation at trial. In light of our holding that Mr. Smith has failed to establish as an initial matter the presence of such a constitutional deprivation, we need not reach the merits of his sole argument on appeal.
Affirmed.
BROWN, J., concurs. | [
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PER CURIAM.
The appellees, who are Bill (Rick) Hall, Jeanita Ives, Laura Bohannon, and Joyce L. Lindsey d/b/a Century 21 Southgate Realty, move this court for costs and attorney’s fees pursuant to Ark. R. App. P. — Civil 11. The history of this matter reveals that the appellees’ motion to dismiss the appellants’ appeal was granted on November 11, 1999, and the mandate was issued to the parties. On December 30, 1999, appellants moved this court for a rule on clerk to have their appeal accepted. This court denied that motion on January 20, 2000. On January 6, 2000, which was prior to this court’s denial of that motion, the appellees moved for attorney’s fees and costs under Appellate Rule 11 on the basis that the appellants’ motion for rule on clerk was frivolous. The appellants tendered their response on January 27, 2000, but offer no defense to the allegation that the motion for rule on clerk regarded a matter already decided by this court. Because the response was filed within twenty-one days of the motion, it was timely filed under Ark. R. App. P. — Civil 11(d), and we accept it as filed.
Rule 11 (d) of our Rules of Appellate Procedure — -Civil does provide for sanctions, including attorney’s fees, when a pleading, motion or other paper is signed by an attorney and is not well grounded in fact or warranted by existing law or made in good faith. Under the rule, this court shall impose sanctions under the following circumstances:
(b) The Supreme Court or the Court of Appeals shall impose a sanction upon a party or attorney or both for (1) taking or continuing a frivolous appeal or initiating a frivolous proceeding, (2) filing a brief, motion, or other paper in violation of subdivision (a) of this rule, (3) prosecuting an appeal for purposes of delay in violation of Rule 6-2 of the Rules of the Supreme Court and Court of Appeals, and (4) any act of commission or omission that has an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For purposes of this rule, a frivolous appeal or proceeding is one that has no reasonable legal or factual basis.
Ark. R. App. P. — Civil 11(b).
Unlike Ark. R. Civ. P. 11, which provides for sanctions under comparable circumstances before the trial court, Appellate Rule 11 does not require a twenty-one day safe-harbor period during which the offending writing may be withdrawn by opposing counsel.
We grant the motion for costs and attorney’s fees. When the motion to dismiss the appellants’ appeal was before this court, the timeliness of their notice of appeal and the filing of the record were precisely the issue. The appellants have offered no explanation for why they filed a motion for rule on clerk for us to accept the record for appeal purposes after their appeal had been dismissed and the mandate handed down.
Accordingly, we conclude that the appellants’ motion is frivolous in that it is not well grounded in fact or warranted by existing law and, as a result, attorneys’ fees and costs should be awarded. See Jones v. Jones, 329 Ark. 320, 947 S.W.2d 6 (1997) (per curiam). Also, by filing the motion there has been a needless increase in the cost of litigation to the appellees. Id.
The appellees are directed to furnish this court with information relating to actual costs and expenses, including reasonable attorneys’ fees. Upon receiving the same, this court will award appropriate costs and attorney’s fees. | [
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ANNABELLE Clinton Imber, Justice.
Appellant Trent Harmon, Jr., appeals the judgment of the Pulaski County Circuit Court convicting him of battery in the first degree and sentencing him to ten years’ imprisonment. This case was certified to us from the Arkansas Court of Appeals because it presents issues involving constitutional interpretation. Our jurisdiction is thus pursuant to Ark. Sup. Ct. R. l-2(a)(l) and (b)(3). Mr. Harmon raises five points for reversal. We find no error and affirm.
I. Sufficiency of the Evidence
For his first point for reversal, Mr. Harmon argues that there was insufficient evidence to support a conviction of battery in the first degree. Particularly, he asserts that the evidence was insufficient to demonstrate (1) that he had any involvement in the crime; (2) that he caused a serious physical injury; or (3) that he acted with the requisite mental state. Mr. Harmon was charged with violating Ark. Code Ann. § 5-13-201 (3)(Repl. 1997), which provides that a person commits battery in the first degree if: “He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life[.]”
The test for determining sufficient proof is whether there is substantial evidence, direct or circumstantial, to support the verdict Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). On appeal, we review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support it. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). Evidence is substantial if it is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict .Johnson, supra. We do not weigh the evidence presented at trial, as that is a matter for the factfinder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Dabney v. State, 326 Ark. 382, 930 S.W.2d 360 (1997). Where, as here, the trial is before the bench, the trial judge sits as factfinder. See Gray v. State, 311 Ark. 209, 843 S.W.2d 315 (1992); State v. Watson, 307 Ark. 333, 820 S.W.2d 59 (1991).
The evidence showed that on October 27, 1996, Kevin Anglin was beaten by several individuals in the parking lot of the Discovery Club in Little Rock. Mr. Anglin testified that he had no actual memory of the beating, but that the last thing he remembered seeing were the faces of Mr. Harmon and Mr. Benjamin Brown. At trial, Mr. Anglin identified Mr. Harmon for the record. Mr. Anglin testified that as a result of the beating he suffered “very, very acute” injuries and was placed in the intensive care unit for three days. Mr. Anglin testified that he suffered injuries to the left side of his face, for which he underwent plastic surgery to repair. Mr. Anglin stated further that since the beating, he suffered a loss of his senses of taste and smell and a loss of memory. Finally, Mr. Anglin indicated that as of the time of trial some sixteen months after the incident, he had no sense of taste or smell and that he continued to suffer a loss of memory.
Mr. Ali Kaan Aydulun testified that he witnessed Mr. Anglin being beaten that night at the Discovery Club. He stated that he and his friend were walking in the parking lot when they encountered Mr. Brown, standing in the lot cussing. Mr. Aydulun and his friend were about to say something to Mr. Brown, when Mr. Anglin advised them to leave Mr. Brown alone because he was drunk. Mr. Aydulun stated that he and his friend began to walk away, and that when he turned around, he saw Mr. Brown and several other persons attack Mr. Anglin. Mr. Aydulun stated that Mr. Anglin had done nothing to provoke the fight. According to Mr. Aydulun, six or seven assailants punched and pushed on Mr. Anglin and eventually pulled him to the ground and started kicking him in the ribs, legs, face and the back of the head. Mr. Aydulun made an in-court identification of Mr. Harmon as one of the assailants. He had previously identified Mr. Harmon in a photo-lineup. Mr. Aydulun testified that Mr. Harmon kicked Mr. Anglin in the face. He explained that Mr. Harmon’s foot missed Mr. Anglin the first time, but that on the second attempt Mr. Harmon backed up one step and ran at Mr. Anglin’s head like a field-goal kicker runs toward a football.
Mr. James Patrick Cady also witnessed the attack. He testified that five or six people began hitting and kicking Mr. Anglin and then stomping on his head as he lay on the ground. Mr. Cady selected Mr. Harmon’s photograph out of a photo-lineup as looking like one of the assailants. He stated that when the fight ended and the assailants dispersed, one assailant gave several last kicks to the victim’s head before getting into a car and leaving. He identified Mr. Harmon as looking like the person who inflicted those last blows to the victim’s head. Mr. Cady told police that the assailant had driven away in a White Honda, license plate number YTS 020. Within approximately fifteen minutes of the incident being reported to the police, a Little Rock police officer stopped a White Honda, license plate number YGS 020, on Cantrell Road, not far from the Discovery Club. Mr. Harmon was driving the car, and Mr. Brown was the only passenger.
The State also offered the testimony of Dr. Ali Krisht, which was taken during the previous trial against Mr. Brown. Dr. Krisht, an expert in neurosurgery, testified that he treated Mr. Anglin in the hospital in October 1996. He stated that a CAT scan of Mr. Anglin’s head revealed contusions on the brain surface in more than one area, mostly on the left side. He explained that contusions are small hemorrhages that are usually caused by trauma. He stated that Mr. Anglin was diagnosed with “traumatic brain injury.” Dr. Krisht also stated that a loss of short-term memory, taste and smell can be associated with such an injury, and that those losses can be permanent. Dr. Krisht further noted that during a subsequent visit to the clinic, Mr. Anglin complained that he was having problems with short-term memory and his sense of smell. Viewing this evidence in the light most favorable to the State, we find substantial evidence to support Mr. Harmon’s conviction of battery in the first degree.
Mr. Harmon’s first argument in opposition to this conclusion is an attack on the credibility of two of the State’s witnesses: Mr. Aydulun, who identified Mr. Harmon as one of the assailants who kicked the victim in the head; and Mr. Cady, who reported that a person who looked like Mr. Harmon inflicted the last blows to the victim’s head and drove away in a car that was eventually stopped by the police. The attack on the credibility of these witnesses is premised on certain inconsistencies in their testimony. The defense specifically points out that Mr. Aydulun indicated that some of the assailants, including Mr. Harmon, were wearing baseball caps and cowboy boots, and that a group of them left the scene in a blue Mazda. Whereas, Mr. Cady indicated that Mr. Harmon left the scene in a white Honda and the police officer testified that when he stopped the white Honda, he did not notice Mr. Harmon wearing a baseball cap or cowboy boots and he did not notice any blood on him. Finally, the defense also challenges the credibility of the witnesses by noting that some of the people identified during the" investigation as possible “look-alikes” were merely fillers in the photo-lineup and were not actually involved in the assault.
The matters emphasized by Mr. Harmon bear exclusively upon the credibility of the State’s witnesses. This court, however, does not attempt to weigh the evidence or assess the credibility of witnesses. That lies within the province of the trier of fact. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). We are bound by the fact-finder’s determination on the credibility of wit nesses. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Thomas v. State; 266 Ark. 162, 583 S.W.2d 32 (1979). Likewise, we have long held that the trier of fact is free to believe all or part of a witness’s testimony. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998); Patterson v. State, 326 Ark. 1004, 935 S.W.2d 266 (1996). Moreover, inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness’s testimony is sufficient to sustain a conviction. See Williams v. State, supra; Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997).
Mr. Harmon contends that the purported inconsistencies in the testimony of the State’s witnesses make their identification of him as the perpetrator of the crime “inherently improbable, physically impossible, and so clearly unbelievable that reasonable minds could not differ thereon.” Kitchen v. State, supra. We disagree. We cannot say with assurance that it would have been physically impossible for Mr. Harmon to discard incriminating evidence, such as clothing, between the time he fled the scene and the time the officer stopped the vehicle he was driving. Furthermore, the officer admitted that he was not specifically looking for blood, cowboy boots, or baseball caps when he made the DWI arrest.
The defense fully explored all inconsistencies and weaknesses in its cross-examination of the State’s witnesses. Nevertheless, the trial judge found their identification credible. The accuracy of the eyewitness identifications and any alleged weaknesses were matters of credibility for the trial court to resolve. Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985). Mr. Harmon has presented us with no valid reason to disregard the trial judge’s assessment of the witnesses’s credibility. We therefore hold that substantial evidence linking Mr. Harmon to the crime does exist.
Mr. Harmon next asserts that the State’s evidence was insufficient to establish that he caused a serious physical injury. Ark. Code Ann. § 5-1-102(19) (Repl. 1997) defines “serious physical injury” as: “Physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.”
Mr. Anglin testified that as a result of the injuries sustained in the fight, he spent three days in the hospital’s intensive care unit. He also stated that he suffered a loss of his senses of taste and smell, and a loss of memory as a result of the beating. At trial, some sixteen months after the incident, Mr. Anglin indicated that these symptoms continued to persist. During Mr. Anglin’s hospitalization in October 1996, Dr. Krisht diagnosed Mr. Anglin with “traumatic brain injury.” Dr. Krisht also confirmed that the protracted loss of memory, taste, and smell experienced by Mr. Anglin can be associated with the type of injury he sustained. A photograph showing the severity of the injuries to the left side of Mr. Anglin’s face was also introduced into evidence, and Mr. Anglin testified that he underwent plastic surgery to repair those injuries.
Whether a victim has sustained a serious physical injury is an issue for the jury, or, as in this case, the trial judge sitting as factfinder. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Weaver v. State, 324 Ark. 290, 920 S.W.2d 491 (1996). Likewise, the question whether injuries constitute a temporary or protracted impairment of a function of a bodily member or organ is for the factfinder to decide. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).
In this case, the victim’s testimony about the injuries he sustained on October 27, 1996, was corroborated by his doctor’s testimony as well as a photograph of his face after the beating. We cannot say that the factfinder could not reasonably infer from this evidence that Mr. Anglin sustained a serious physical injury as a result of the beating, and particularly that he suffered a protracted impairment of the function of bodily organs or members. We therefore conclude that substantial evidence to support the finding of serious physical injury does exist. This conclusion is consistent with our holding in Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984), where we held that three blows to the head with a fist resulting in fractures to the face and the victim’s hospitalization for five days was sufficient to support a finding of serious physical injury.
Mr. Harmon finally asserts that the evidence was insufficient to establish that he acted with the requisite mental state for battery in the first degree. 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 cause such a result. Tarentino v. State, 302 Ark. 55, 786 S.W.2d 584 (1991)(citing Ark. Code Ann. § 5-2-202(l)(1987)). Because of the obvious difficulty in ascertaining the actor’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his acts. Id. The factfinder may draw upon common knowledge and experience to infer the defendant’s intent from the circumstances. Id. The trial court’s conclusion in this case that Mr. Harmon acted with the purpose of causing serious physical injury is supported by Mr. Aydulun’s testimony that Mr. Harmon came at Mr. Anglin’s head like a field-goal kicker approaches a football, and by Mr. Cady’s testimony that Mr. Harmon was the last one to leave the scene, and did so only after delivering several more kicks at Mr. Anglin’s head. This conclusion is consistent with our holding in Anderson v. State, 312 Ark. 606, 852 S.W.2d 309 (1993): “Repeated blows to the head by kicking or ‘stomping’ when [a] man [is] down [exhibit] purposeful action to inflict serious physical injury whether it be risk of death or protracted disfigurement or impairment.” Id.; see also Lum v. State, supra; Bangs v. State, supra; Tarentino v. State, supra; Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979).
Furthermore, there is substantial evidence to support a finding that Mr. Harmon acted “under circumstances manifesting extreme indifference to the value of human life,” pursuant to section 5-13-201(3). The plain meaning of that phrase demonstrates that the circumstances must by necessity be dire and formidable in terms of affecting human life. Tigue v. State, 319 Ark. 147, 889 S.W.2d 760 (1994). In short, first-degree battery “involves actions which create at least some risk of death which, therefore, evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim.” Id. (citing Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984)). The foregoing evidence demonstrates that Mr. Harmon, along with five or six other assailants, kicked Mr. Anglin in the face and head multiple times while Mr. Anglin was on the ground. This evidence certainly supports the conclusion that Mr. Harmon engaged in life-threatening conduct against the victim.
Moreover, the evidence of life-threatening conduct in this case is distinguishable from the circumstances addressed in Tigue v. State, supra, where we held that immersion of the victim’s hands in hot water causing third-degree burns was not life-threatening conduct. Likewise, Bolden v. State, 267 Ark. 504, 593 S.W.2d 156 (1980), is inapposite because the police officer in that case did not know what caused his injury (a broken jaw and ribs) and “[t]he physician who examined the officer shortly after the incident testified that he had not observed any contusion on the officer’s head, and there was no physical evidence of a severe blow to the back of the head.” Id.
We therefore conclude that there is substantial evidence from which the trial judge, sitting as factfinder, could have reasonably determined that Mr. Harmon acted with the purpose to cause serious physical injury to Mr. Anglin under circumstances manifesting extreme indifference to the value of human life.
II. Facts Not In Evidence
For his second point for reversal, Mr. Harmon argues that the trial court improperly relied on facts and evidence presented at the co-defendant’s trial, over which the same judge presided. In support of this argument, he relies on the following colloquy, which occurred during the State’s direct examination of the victim:
Q: Are there any — as a result of— as a result of the injuries you received on
Mr. CRAIG: There’s been no testimony of injury. Counsel’s assuming the fact that’s not in evidence.
Q: Well, did you have any injuries on—
A: I was in ICU for three days so, yes, I had very, very acute injuries.
Q: Okay. Let’s talk about your face. What happened? What was wrong with your face as a result of the beating you took on October—
Mr. CRAIG: Your Honor, Counsel is leading. Counsel is assuming facts not in evidence.
THE COURT: Don’t lead your witness and don’t assume facts not in evidence. Now Mr. Craig, you’re going to have to realize, also, that I’ve heard this gentleman testify about this same incident once before so there are some things that I do recall.
Mr. CRAIG: I understand, Your Honor, but that should have no bearing on this trial.
The COURT: I understand. All right, proceed.
We are not persuaded that the trial court did anything improper. As Mr. Harmon acknowledges, there is a presumption that a trial judge will consider only competent evidence, and this presumption is overcome only when there is an indication that the trial judge gave some consideration to the inadmissible evidence. See Clinkscale v. State, 269 Ark. 324, 602 S.W.2d 618 (1980); Fields v. State, 36 Ark. App. 179, 820 S.W.2d 467 (1991). In Clink-scale, supra, the trial judge repeatedly made remarks about the defendant’s prior, inadmissible convictions, calling him a “perpetual crime wave,” and stating that “it’s one thing to have one offense for stealing ... but the idea since 1970 you have all these....” Thus, there was no question that the trial judge considered the prior convictions during sentencing. Here, there is no indication from the record that the trial was truncated or shortened in any fashion, or that the trial judge considered any evidence other than what was presented to him during Mr. Harmon’s trial. Nor does Mr. Harmon point to any specific evidence that the trial judge considered which prejudiced him. Thus, Mr. Harmon has failed to overcome the presumption that a trial judge will consider only competent evidence. Moreover, the trial judge appeared to acknowledge that he could not consider the testimony he heard at the previous trial.
III. Confrontation of Witnesses
For his third point for reversal, Mr. Harmon argues that the trial court erred in allowing the State to elicit hearsay testimony during cross-examination of a defense witness. He urges that the trial court’s ruling denied him the right to confront the witnesses against him, in violation of the Sixth Amendment to the United States Constitution. The State asserts that no such constitutional objection was made below.
The record reflects that Mr. Harmon called Sergeant Joe Oberle of the Little Rock Police Department to testify about information contained in the officer’s affidavit of probable cause to arrest Mr. Harmon. At one point during the testimony, the prosecutor objected to questions regarding what a particular witness had told the officer on the ground that it was hearsay. Defense counsel responded that the evidence was not offered for the truth of the matter asserted, but, instead, only to show what information the officer relied on in preparing the affidavit. The trial court allowed the evidence for that limited purpose.
On cross-examination, the prosecutor asked the officer about the witnesses described in the affidavit who had identified Mr. Harmon as one of the assailants. Defense counsel objected on the ground that the testimony was hearsay. The prosecutor argued that the testimony was admissible because (1) defense counsel had opened the door to this line of inquiry, and (2) the evidence was not being offered for the truth of the matter asserted. Defense counsel then argued that the evidence was irrelevant. The trial court allowed the evidence. Upon the prosecutor’s conclusion of cross-examination, the following discussion occurred:
Mr. FlNKELSTEIN: Pass the witness.
Mr. CRAIG: It’s difficult to cross-examine hearsay, Your Honor, and I’d ask the Court in the interest of justice—
The COURT: This is your — this is your witness. This is your witness, Mr. Craig. And they’re allowed a wide latitude on cross-examination.
Mr. CRAIG: But Your Honor, that is rank hearsay. Statements of people who are not present, who we cannot cross examine, and it is obviously prejudicial and it is improper.
Mr. Harmon argues that, although defense counsel never specifically referred to the constitutional right to confront the witnesses, it is apparent from the context of the objection that he was making such an argument. Be that as it may, Mr. Harmon has failed to show that he was prejudiced by the evidence because he opened the door to such testimony in the first place. See Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998); Puckett v. State, 328 Ark. 355, 944 S.W.2d 111 (1997); Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Indeed, the trial court based its ruling in part on the fact that Mr. Harmon “started talking about the report with this witness.” Furthermore, the challenged evidence was admissible for the same reason that the trial court allowed similar evidence during defense counsel’s questioning of the officer. It was not being offered for the truth of the matter asserted, but rather to show other information the officer relied on in preparing the affidavit. This court has repeatedly recognized that matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. See, e.g., Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Nor will we reverse absent a showing of prejudice, as prejudice is not presumed. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999); Bell, supra. Accordingly, we cannot say that the trial court abused its discretion in admitting the evidence.
IV Constitutionality of the Sentencing Guidelines
For his fourth point for reversal, Mr. Harmon argues that the trial court erred in refusing to declare Act 532 of 1993, the Sentencing Guidelines Act, unconstitutional for violating the doctrine of separation of powers. Specifically, Mr. Harmon contends that in passing Act 532, codified as Ark. Code Ann. §§ 16-90-801 to -804 (Supp. 1999), the General Assembly improperly delegated both legislative and judicial power to the Arkansas Sentencing Commission in violation of Article 4 of the Arkansas Constitution. We do not reach the merits of this argument, as Mr. Harmon has failed to show that he was prejudiced by the Act.
It is well settled that before a person can challenge the constitutionality of a statute, he or she must demonstrate that the challenged statute had a prejudicial impact upon him. Nahlen v. State, 330 Ark. 1, 953 S.W.2d 877 (1997); Brooks v State, 328 Ark. 32, 941 S.W.2d 409 (1997). Here, Mr. Harmon cannot show that the Act was applied to him at all. Indeed, he admits that the trial court stated that it would not consider the pre-sentence report, and that it would impose sentence without regard for or reference to the sentencing guidelines. Mr. Harmon also does not dispute that the sentence imposed is within the range permitted by law for a Class B felony. See Ark. Code Ann. § 5-4-401 (a) (3) (Repl. 1997). He contends, however, that the application of the guidelines to his case is obvious in that the sentence imposed by the trial court was the same as that established by the guidelines. The record reflects the trial court’s ruling:
The COURT: I’m going to deny your motion and I’m not going to declare that act unconstitutional. It may well be, but let’s let the other court out there make that decision rather than me. But in addition to that I’m not necessarily going along with the sentencing guidelines in my proposed sentence. I’ve considered the full range and as I understand it the penalty provisions under the sentencing guidelines are recommendations only anyway.
* * *
So it will be the judgment and sentence of the Court that he be taken by the Sheriff, delivered for the purpose of serving his term of ten years in the Arkansas Department of Corrections, which is the same term as the co-defendant in this case got. And I did not follow the sentencing guidelines in that particular case. I departed from the sentencing guidelines, but I think this young man’s sentence should be the same as the co-defendant’s.
(Emphasis added.) It is clear from this ruling that the trial court did not base his decision on the recommended sentence established in the sentencing guidelines; rather Mr. Harmon’s sentence was based upon the trial court’s determination that both co-defendants should receive the same punishment, ten years’ imprisonment. Thus, because Mr. Harmon has failed to demonstrate that Act 532 had a prejudicial impact on him, we do not reach the merits of his constitutional challenge.
V. Cumulative Error
Mr. Harmon lastly argues that the trial court erred in denying his cumulative error objection. He bases this argument on each of the four individual points of error raised on appeal, as well as two additional points: (1) the trial court’s comments that Mr. Harmon’s objections could be addressed on appeal; and (2) the trial judge’s alleged bias against Mr. Harmon evidencing a predisposition to convict. Neither of these additional points were raised below. As such, we will not consider them on appeal. This court has repeatedly held that for a cumulative-error argument to be upheld on appeal, the appellant must show that there were objections to the alleged errors individually and that a cumulative-error objection was made to the trial court and a ruling obtained. See, e.g., Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999); Willis, 334 Ark. 412, 977 S.W.2d 890. Moreover, we have considered the remaining assertions of error and concluded that no reversible error occurred in Mr. Harmon’s trial. This court does not recognize the doctrine of cumulative error where there is no error to accumulate. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995); Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994).
Affirmed.
Arnold, C.J., Thornton, J., and Special Justice Bud Cummins, dissent.
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LAVENSKI R. SMITH, Justice.
Appellant Steven A. Steggall appeals his capital-murder conviction for the death of his three-month-old daughter, Haylee Brianne Stice (“Haylee”), who died of traumatic injuries to her head and body. The trial court sentenced Steggall to life in prison. Hence, we have jurisdiction under Ark. Sup. Ct. R. l-2(a)(2). On appeal, Steggall argues that the prosecution adduced insufficient facts to support a capital-murder conviction, and that his statements to the police should have been suppressed because he requested that an attorney be present during the statements. We find no error and affirm.
Facts
On April 2, 1998, Steggall and Misty Stice (“Stice”), Haylee’s mother, admitted Haylee to the emergency room of a Newport hospital. Steggall initially told investigators he had called 911 after observing bleeding from the child’s nose after he laid her down to sleep. Haylee was transported by helicopter shortly thereafter to Arkansas Children’s Hospital in Little Rock, where she was first seen by Dr. Stephen Schexnayder, a pediatric critical-care and emergency-medicines physician. Dr. Schexnayder testified at trial that upon initial evaluation, he and his team found Haylee to be “a very severely ill child who was in shock.” According to Dr. Schexnayder, she was “severely neurologically injured, meaning she was comatose.”
Dr. Charles Albert James, a pediatric radiologist, conducted several diagnostic tests including a skeletal survey or full-body x-ray, a CT scan of Haylee’s brain, and a bone scan to identify bone abnormalities. Dr. Schexnayder and Dr. James reviewed the test results. Both doctors noted that Haylee had suffered an “extensive skull fracture” on the right side of her head, resulting in hemorrhaging on the brain surface and damage to both frontal lobes of the brain. The x-rays and bone scan also revealed that Haylee suffered two occurrences of rib fractures — one occurrence approximately two weeks before this hospital admission and the other related to the April 2 occurrence. The tests also revealed that Haylee had suffered a fractured forearm, which was healing, indicating that it was over a week old at the time of admission on April 2. Both doctors opined that the old and new injuries were consistent with child abuse. Specifically, they believed the injuries reflected “shaken baby syndrome” and “shake and slam syndrome.” Children’s Hospital reported the incident to the Jackson County Sheriff’s Department as suspected child abuse.
Steggall made three statements to the police regarding the incident on April 2, 1998. The police first questioned Steggall on the evening of April 3, 1998, at Arkansas Children’s Hospital. Chief Deputy David Lucas and Detective Charles Vaughn with the Jackson County Sheriff’s Department conducted the interview, which was audiotaped. Prior to conducting the interview, Lucas had Steggall answer and initial a standard Miranda rights form. The statement was later transcribed. In this first statement, Steggall recounted the events of the night before. He stated that he laid Haylee down in her bed on her stomach and finished some housecleaning. He stated he heard a choking sound, went to check on Haylee, and noticed when he rolled Haylee over on her side that some blood came out of her nose. Steggall stated that when he picked her up she was limp, and he then called 911. Throughout this statement, Steggall denied ever shaking or dropping Haylee.
Steggall again met with the police investigators on the morning of April 8, 1998. State Police Investigator Charles Beall orally advised Steggall of his rights before taking the statement, and Steggall completed a standard Miranda waiver form provided by the police. Steggall indicated that he understood his rights and would waive them. Steggall dictated a statement to Beall which Beall transcribed by hand. In the handwritten statement, Steggall recounted that while he was feeding Haylee by bottle, she began spitting up and formula was coming out of her nose. Haylee vomited, and when she did, her head somehow fell upside down. Steggall stated:
When I noticed that Haylee’s head was upside down I grabbed her by her leg and jerked her up by her leg with my left hand. Haylee’s head went down and popped. When I cleaned her up she started crying. I then a little while later started bouncing her on my knee probably too fast for Haylee. Her head was bouncing around.
Steggall said he noticed blood coming out of Haylee’s nose about five to ten minutes later after he laid her in her bed. It was at that time that he and Stice called 911. Steggall also reported for the first time that Haylee’s head had hit the front of the wood portion of a couch when he jerked her up by her leg, and that he “might have squeezed Haylee by her ribs too hard.”
Lucas and Beall interviewed Steggall for the third time on April 9, 1998, at the Arkansas State Police headquarters in Little Rock. The officers used a standard Miranda form to advise Steggall of his rights before beginning the interview. Steggall, as previously, initialed and signed the form, indicating that he understood his rights and was willing to speak with the officers without counsel. The police videotaped the interview, made an audio tape, and later transcribed it. In that statement, Steggall generally recounted the events of April 2, 1998, again as he had stated in his April 8, 1998, written statement.
On April 14, 1998, the Jackson County prosecuting attorney charged Steggall by Information with battery in the first degree under Ark. Code Ann. § 5-13-201. Haylee died on May 3, 1998, from complications associated with her injuries. On May 5, 1998, the prosecutor amended the Information filed against Steggall to state a charge of capital murder. The Jackson County Circuit Court tried Steggall on December 8, 1998. At the close of the State’s evidence, the defense moved for a directed verdict, arguing that there was insufficient evidence to support a finding that Steggall acted “knowingly” as required under Ark. Code Ann. §§ 5-10-101 and 5-2-202. Instead, the defense argued that only circumstantial evidence existed and that this is not enough if any other reasonable conclusion exists. Here, the defense argued, the evidence could support a finding that Steggall acted recklessly. The court denied this motion, noting that the defendant’s state of mind was an issue for the jury. The jury convicted Steggall of capital murder and sentenced him to life in prison. He filed a timely Notice of Appeal on December 18, 1998.
As noted, Steggall raises two points on appeal. First, Steggall argues that the trial court erred when it denied his motion for directed verdict because there was insufficient evidence to support a capital-murder conviction. Second, Steggall argues that the trial court erred in failing to suppress Steggall’s three statements to police because Steggall contends that he requested an attorney during the interrogations.
Suffidency of the evidence
When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. On appeal,when a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). 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. Ladwig v. State, 328 Ark. 241, 943 S.W.2d 571 (1997). Only evidence supporting the verdict will be considered. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994). This court makes no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Whether the evidence excludes every hypothesis is left to the jury to determine. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Byrd, supra; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).
In his directed-verdict motion, Steggall argued that this case is based on circumstantial evidence alone; therefore, if any other conclusions can be drawn from that evidence, besides that of “knowingly” causing injuries as defined by the statute, then the capital-murder sentence is not warranted. Ark. Code Ann. § 5-10-101(a)(9) (Repl. 1997), the capital-murder statute, states:
(a) A person commits capital murder if:
(9) Under circumstances manifesting extreme indifference to the value of human life, he knowingly causes the death of a person fourteen (14) years of age or younger at the time the murder was committed, provided that the defendant was eighteen (18) years of age or older at the time the murder was committed.
Ark. Code Ann. § 5-2-202 on culpable mental states defines “knowingly” as follows:
(2) “KNOWINGLY.” A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of the nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.
According to Ark. Code Ann. § 5-2-202 (Repl. 1993): “A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.” A jury need not lay aside its common sense in evaluating the ordinary affairs of fife, and it may infer a defendant’s guilt from improbable explanations of incriminating conduct. See e.g., Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997); Davis v. State, 325 Ark. 96, 925 S.W.2d 768 (1996).
In Byrd, we dealt with “shaken baby syndrome” in a case in which a seven-month-old boy died after suffering a blunt-force trauma causing a skull fracture and brain swelling. The child in Byrd had suffered repeated episodes of abuse as evidenced by his medical history, including evidence of multiple healing rib fractures and a leg fracture. In that case, the defendant argued, as Steggall does now, that only circumstantial evidence existed and, as such, a finding of “knowingly” could not be established to support a capital-murder conviction. We especially noted that the medical evidence indicated that the injuries occurred during the time that the defendant was caring for the child, and that the injuries presented “uncontroverted evidence of child maltreatment.” The court in Ladwig also came to the same conclusion in that “shaken baby syndrome” case, finding that the defendant struck and shook the child, knowing that the result would be serious injury or death.
Here, the evidence before the jury certainly provided them with ample evidence, circumstantial and direct, to find Steggall acted “knowingly” in causing the child’s death. At trial, both Dr. Schexnayder and Dr. James testified about their opinions regarding the source of Haylee’s injuries. Dr. James stated that the type of rib injuries Haylee sustained are not generally seen in accidental trauma. He stated:
This site of bone injury is felt to be highly, highly specific for child abuse because we don’t see this fracture in this location hardly ever in other forms of trauma, bad car wreck, bad fall, resuscitation. This site of bone injury is felt to be highly, highly specific that there was intentional trauma to the infant, which is what we term child abuse or non-accidental trauma.
He further stated:
We know from the images now that we have severe force has {sic) been applied, traumatic force has been applied to the infant. We know from being able to age both on the head scan the hemorrhage, the blood, and the healing changes of bone, we have severe traumatic force applied to this child over different time periods, over different organ systems, the brain, the bones scattered throughout the body.
Dr. Schexnayder testified that “given the whole picture of some of the findings I’ve yet to get to, this is consistent with multiple repetitive injuries that were not accidentally inflicted. In other words, this child was abused.” In response to a question regarding whether these findings are consistent with “shaken baby syndrome,” Dr. Schexnayder responded that the skull fracture was actually part of a related syndrome called “shake and slam syndrome.” Dr. Schexnayder stated:
To get this skull fracture, the child had to have a high force impact with some solid object, be it, you know, a table, a fist, a wall, but the child not only had to be shaken but the child had to have some severe impact to the point that it caused a very large skull fracture.
The doctor summarized, stating:
The bleeding in the eyes, the bleeding over the top of the brain, the rib fractures at the back, at the back part of the ribs that were fresh, those are consistent all with shaking. The old rib fractures are consistent with this child being shaken but at a different time, as is that healing rib fracture on the right, but to get that fresh skull fracture on the right, the child had to have a severe impact with something.
The State also offered the testimony of Dr. Charles Paul Kokes, who performed an autopsy on Haylee’s body on May 4, 1998. Dr. Kokes, a specialist in the fields of anatomic and forensic pathology, testified regarding his findings from the autopsy, noting that Haylee suffered an “eleven centimeter long healing skull fracture which extended from the right front part of the skull back over the right side of the skull.” Dr. Kokes also noted the subdural hematoma that Haylee’s treating physicians saw on the CT scan. Dr. Kokes testified that he saw evidence of healing rib fractures on both sides of the chest wall and on four ribs. While Dr. Kokes did not see evidence of the arm or leg fractures, he attributed this to the time that had elapsed, over one month, from the time the injuries occurred to the time he performed the autopsy. Dr. Kokes testified that the injuries Haylee sustained were a result of “a blunt force trauma,” which could consist of the child either being struck very forcibly or compressed in some manner. In Dr. Kokes’s medical opinion, the cause of Haylee’s death was the head injuries with complications, and the manner of death was due to homicide. Dr. Kokes stated:
[I]f you consider in the context of a child with that sort of head trauma, older injuries sufficiently severe enough in different anatomic locations in that same individual at a different time, that simply means that this child was the victim of repetitive physical abuse, had been abused before the time she sustained the head injuries. In that context that makes the likelihood that the injuries were not accidental in nature very strong, and it’s not (sic) likely even under those circumstances without consideration of other factors, that this death is in all likelihood a homicide.
Dr. Kokes further noted in his autopsy report, which was admitted into evidence at trial, the following:
Healing fractures of the ribs and left radius are important in this case, not because they had adversely affected the infant, but because of what they say about the circumstances surrounding the traumatic incident. The initial story regarding what happened to this infant on April 2, 1998 is totally inconsistent with the clinical and pathologic findings. Subsequent statements given by the father, which admit some relatively mild head injuries took place, are also inconsistent with the findings. Mechanisms described by the father could not have caused the degree of head damage that was present. Nor does it explain the presence of healing rib fractures and a left wrist fracture at the time of the presentation to the hospital on April 2, 1998. The presence of healing fractures at that time indicates that this child was a victim of repetitive abuse. The head injuries which occurred on April 2, 1998 were the final injuries in a series of incidents which were sustained in this infant’s short life.
In addition to Steggall’s statements to the police, he also made a fourth statement to Dr. John R. Anderson, Ph.D., a staff psychologist at the Arkansas State Hospital, during a mental examination to determine whether Steggall was competent to stand trial and whether he was competent at the time of the April 2, 1998, incident to understand and conform his actions. Before the examination, Dr. Anderson advised Steggall that the statements he made during the interview would not be privileged. During the examination, when asked about the events of April 2, Stegall first denied he did anything to Haylee, but then recanted and said that she had been injured while he was feeding her. Dr. Anderson quoted Steggall as saying, “I dropped my daughter, I got frustrated and I shook my daughter.” He further stated, “I tried to keep her from hitting the floor, and she hit the couch. When I realized what happened, I got mad at myself.” He also stated, “I realized what I had done and I laid her down in her crib.”
As the State notes, the appellant’s attorney conceded on closing arguments that Steggall had shaken Haylee to death. Steggall’s attorney argued, however, that he did not “knowingly” shake her to death. However, Steggall’s own conduct in giving different versions of the incidents of April 2, 1998, defy this assertion. 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. Thompson v. State, 338 Ark. 564, 999 S.W.2d 192 (1999); Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In Thompson, the verdict was based on circumstantial evidence, but the evidence excluded any other hypothesis consistent with innocence. Thompson’s attempts to cover up his connection to the crime were before the jury, and the jury could have properly considered evidence of cover-up as proof of a purposeful mental state. See also, Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993); Mulkey, supra. Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Williams, supra; Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992). Here, there was ample evidence for the jury to find that Steggall knowingly caused the death of the infant. Therefore, denial of the directed-verdict motion was proper, and the court was correct in allowing the jury to consider the evidence.
Suppression Motion
Prior to the start of trial, the defense moved for suppression of Steggall’s three statements, arguing that Steggall believed he was coerced and was not given the right to counsel. At the suppression hearing, the State presented testimony by the investigating officers regarding the circumstances surrounding the taking of Steggall’s statements. Each officer testified that Steggall orally and in writing waived his rights, and voluntarily agreed to speak to the police regarding the case. The officers testified that Steggall did not seem to be under the influence of any drugs or alcohol, and that he seemed to understand the protections he was waiving. Furthermore, the officers testified that Steggall did not request the presence of an attorney at any time prior to, during, or after making the statements to them. Steggall testified at the suppression hearing that he was advised of his rights at each of the three meetings with the police, and that he voluntarily waived his rights. However, Steggall stated that at the second meeting in Little Rock, he asked for an attorney twice, but that the officers seemed like they “wanted to get it done and over with.” Steggall could not remember exactly what they said, but he stated that he “felt pressure” from the officers. Steggall also testified that he would have requested an attorney at the third meeting on April 9 had he known that he was being videotaped. The trial court denied the motion to suppress the statements at trial.
In his second point on appeal, Steggall argues that the trial court erred in denying his motion to suppress the statements he made to police regarding the events of April 2, 1998. Specifically, Steggall argues that he asked for an attorney when he was questioned by the police on April 8, 1998, and when videotaped on April 9, 1998, and that their failure to stop the questioning and allow him the opportunity to speak to counsel rendered those statements inadmissable. The State responds by arguing that the issue before the trial court was essentially one of credibility, and that the appellate court defers to the trial judge in such matters. Here, the trial judge believed the three police officers and the various recorded statements and videotape to determine that the statements should be admitted at trial.
When we review a trial court’s ruling on a motion to suppress, we review the evidence in the light most favorable to the State and make an independent determination based upon the totality of the circumstances. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999); Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998). Further, this court will only reverse a trial court’s ruling on a motion to suppress if the ruling was clearly erroneous. Phillips v. State, 321 Ark. 160, 900 S.W.2d 526 (1995).
Although Steggall argues that he requested the presence of an attorney, it is undisputed that he signed Miranda waiver forms notifying him of his right to counsel and, apparently on three occasions, gave the police statements without exercising those rights. In fact, as the State notes, the only evidence that Steggall presents that he asked for an attorney is his own testimony. This issue then turned on credibility, and it is in the province of the finder of fact to determine the credibility of witnesses. Bryant v. State, 314 Ark. 130, 862 S.W.2d 215 (1993); Atkins v. State, 310 Ark. 295, 836 S.W.2d 367 (1992).
The burden is on the State to show that a defendant’s confession was made after a voluntary, knowing, and intelligent waiver of his rights. Rushing v. State, 338 Ark. 277, 992 S.W.2d 789 (1999); Cagle v. State, 267 Ark. 1145, 594 S.W.2d 573 (1980). As was the case in Cagle, appellant’s confession was given without counsel. The test is whether appellant was effectively warned of his rights and knowingly and willingly decided to waive them. Id. (citing United States v. Harden, 480 F.2d 649 (8th Cir. 1973)). The assertion of the right to counsel and the right to remain silent must be made with specificity. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995) (citing Davis v. United States, 512 U.S. 452 (1994)).
In Clay v. State, 318 Ark. 122, 883 S.W.2d 822 (1994), this court noted that there are two separate issues regarding the waiver of Miranda rights:
Only if the ‘totality of the circumstances surrounding the interrogation’ reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.
Id. (citing Moran v. Burbine, 475 U.S. 412 (1986)). The court in Clay further noted that the “totality of the circumstances” review mandated an inquiry into an evaluation of
age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. A court must look at the totality of the circumstances to see if the State proved that a defendant had the requisite level of comprehension to waive his Fifth and Sixth Amendment rights.
Here, Steggall was read his rights on three occasions, and he indicated on each occasion that he understood those rights. In fact, Steggall was audio- and videotaped on two out of three of these occasions, and there is no indication in the transcripts of these statements that he requested an attorney during the questioning. Considering Steggall’s age, education, and experience, no special circumstances existed to invalidate his waiver. He was an adult who had graduated high school and had completed some college credits. During these interviews, he showed no signs of being under the influence of any drug or delusions. Steggall also had prior experience with law enforcement as a child and teenager, as indicated in the psychological report generated in this case, and was placed on probation for shoplifting and stealing a truck. In his prior marriage, Steggall also had a run-in with law enforcement for alleged child abuse perpetrated against his stepdaughter. While those charges were dropped, he did deal with the police in that instance, as well. Based upon the foregoing, we conclude the trial court was not clearly erroneous in denying Steggall’s Motion to Suppress. Accordingly, the judgment of the trial court is affirmed.
Rule 4-3 (h)
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 to appellant, and no error has been found.
Affirmed. | [
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ROBERT L. Brown, Justice.
This appeal involves a bond forfeiture. The trial court awarded judgment to the State and against the appellant, Bob Cole Bail Bonds, Inc. (“the bonding company”), in the amount of $2,000. The court of appeals reversed and dismissed. Bob Cole Bail Bonds, Inc. v. State, 68 Ark. App. 13, 2 S.W.3d 94 (1999). This court granted review of the court of appeals’s decision on December 9, 1999. When we grant review of a case decided by the court of appeals, we treat the appeal as if it were originally filed in this court. See Youngman v. State Farm Mut. Auto. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998).
The two major points raised by the bonding company in this appeal are (1) the trial court failed to give it statutory notice, and (2) the defendant, Lacey Dawn Helmert, was surrendered to the trial court before the bond was forfeited. Despite the points raised, we believe that resolution of this case turns on the absence of the bail bond in the circuit court’s file on Helmert and the issue of whose burden it was to introduce the bail bond at the bond forfeiture hearing.
According to her criminal docket, on July 16, 1997, Helmert was arrested on a petition to revoke her probation on drug offenses and bonded by “Bob Cole Bonding Agent Steve Outlaw.” On December 1, 1997, Helmert failed to appear at a scheduled hearing on that petition, and on that same date, statutory notice which begins the 120-day notice period for failure to appear was mailed by the circuit court administrator to “Cole Bonding, 1005 N. Center, Lonoke, Arkansas 72086.” See Ark. Code Ann. § 16-84-201(a)(1)(B) (Supp. 1999).
On May 5, 1998, the circuit court executed a Bond Forfeiture Summons ordering Helmert’s arrest and directing the bonding company to appear to show cause why the bail bond should not be forfeited and judgment entered against it. The summons stated that the bail bond was attached, but that was not done. The summons was served on the bonding company in Fort Smith.
On June 25, 1998, Helmert was arrested. On July 15, 1998, the bond forfeiture hearing was held. At the hearing, the bonding company argued that the original bond was not in the court file and that the 120-day notice was defective because it went to the wrong address. The circuit court entered judgment against the bonding company in the amount of $2,000. At no time during the hearing was the bail bond presented to the circuit court or introduced into evidence. The bail bond is not part of the record in this appeal.
Two points bear emphasis at the outset of this appeal. The first is that even though the bail bond at issue was attached to the bonding company’s brief in this appeal, it cannot be considered by this court because it is not part of the record. It is, of course, the appellant’s duty to bring up a sufficient record to enable this court to consider the issues raised. See, e.g., Edwards v. Neuse, 312 Ark. 302, 849 S.W.2d 479 (1993). The second point is the manner in which the bonding company framed the issue before the trial court. The bonding company did not contend that the State was not entitled to judgment because the State did not introduce the bail bond at the forfeiture hearing. See Hernden v. State, 865 S.W.2d 521 (Tex. Ct. App. 1993). Rather, the bonding company mounted a defense to forfeiture on the basis that the statutory notice was defective and, thus, the 120 days for notice never commenced running. Even in its appeal, the bonding company only makes passing reference without citation of authority to the necessity for there to be a bail bond presented to the circuit court in order for a forfeiture to occur. The focal point of the bonding company’s appeal is the circuit court’s failure to give it statutory notice. Again, the framing of the issue is important because the crucial question before this court is which party had the burden of introducing either an original or a copy of the bail bond into evidence at the bond forfeiture hearing.
The law regarding statutory notice to bonding companies is clear and precise:
(a)(1)(A) If the defendant fails to appear for trial or judgment, or at any other time when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court may direct the fact to be entered on the minutes, and shall promptly issue an order requiring the surety to appear, on a date set by the court not less than ninety (90) days nor more than one hundred twenty (120) days after the issuance of the order, to show cause why the sum specified in the bail bond or the money deposited in lieu of bail should not be forfeited.
(B) The one hundred twenty-day period begins to run from the date notice is sent by certified mail to the surety company at the address shown on the bond, whether or not it is received by the surety.
Arkansas Code Ann. § 16-84-201(a)(l)(A) and (B) (Supp. 1997) (emphasis added).
We have held that statutory service requirements, being in derogation of common law rights, must be strictly construed and that compliance with them must be exact. Holt Bonding Co. v. State, 328 Ark. 178, 182, 942 S.W.2d 834, 837 (1997); see also Carruth v. Design Interiors, Inc., 324 Ark. 373, 921 S.W.2d 944 (1996). Substantial compliance will not suffice. Holt Bonding Co. v. State, supra; AAA Bail Bond Co. v. State, 319 Ark. 327, 891 S.W.2d 362 (1995). Nor can defective service be validated by actual knowledge. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989).
In the instant case, the bonding company contends that the statutory notice required under § 16-84-201(a)(l)(A) was defective because it was not sent to the “address shown on the bond.” This begs the question, however, of what address was shown on the bond and whose burden it was to present that proof. If the bonding company is raising the defense of defective service, in our view it had the burden to show that the circuit court administrator sent the notice to the wrong address based on the bail bond. This it failed to do.
Our conclusion in this regard is on all fours with statements made by this court and the court of appeals in previous cases. For example, the court of appeals has said that in a bail bond proceeding, “[o]nce the defendant has failed to appear, the entire amount of the bond is subject to forfeiture. The surety is given the opportunity to present evidence why the bond should not be forfeited, or why the full amount of the bond should not be forfeited....” M & M Bonding Company v. State, 59 Ark. App. 228, 232, 955 S.W.2d 521, 523 (1997). Along the same line, this court has said, “[t]he show-cause order did not abrogate the statutory forfeiture. It merely afforded the bondsmen an opportunity to be heard with respect to a total or partial remission of the forfeiture....” Craig v. State, 257 Ark. 112, 115, 514 S.W.2d 383, 385 (1974). That, of course, is the essence of a show-cause hearing — that the summoned bonding company should offer proof or argument as to why the bail bond should not be forfeited. In the instant case, the bonding company failed to present the circuit court with evidence of the bail bond itself which was the key to the bonding company’s defense of erroneous service. In failing to do so, it did not meet its burden of proof. We reverse the holding of the court of appeals in Bob Cole Bail Bonds, Inc. v. State, 68 Ark. App. 13, 2 S.W.3d 94 (1999), that the burden of proof in the instant case rested with the State.
The bonding company also argues that the notice it received of non-appearance was not prompt. This argument, however, was not addressed to the circuit court and, accordingly, is not preserved for our review. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Nor was the argument made to the circuit court that the bonding company should not be Hable because Helmert was surrendered to the circuit court prior to judgment on the bond forfeiture. Accordingly, we will not address the issue. Id.
We affirm the judgment of the trial court.
This statute was amended by Act 567 of 1999. | [
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ANNABELLE CLINTON Imber, Justice.
This case involves a motion for rule on the clerk. In support of a request that the clerk of this court be ordered to file the record in this case, appellant Harold Rigsby asserts that his notice of appeal from an amended decree was timely because the second notice of appeal should relate back to the filing date of a first notice of appeal from the original decree. Alternatively, appellant asserts that his appeal should be dismissed without prejudice for lack of a final order. Because we agree that there is neither a final order under Ark. R. App. P. — Civil 2, nor proper certification by the trial court under Ark. R. Civ. P. 54(b), we dismiss the appeal without prejudice for lack of finality.
Brett Rigsby filed a complaint in the Chancery Court of Logan County on October 27, 1997, against his father, Harold Rigsby, which alleged that he was entitled to an equitable one-half interest in certain real property owned by Harold Rigsby. Specifically, the complaint stated that Brett Rigsby had jointly entered into a debt on the property, thereafter making all payments due on the debt, and that he had constructed substantial improvements on the property which increased its value. Brett Rigsby asserted that he had thereby acquired a one-half interest in the property. His complaint also requested an order directing partition of the real property and a division of proceeds between the plaintiff and defendant, inasmuch as the property could not be divided in kind. Brett Rigsby further prayed that a constructive trust be placed on one-half of the proceeds from any sale of the property by Harold Rigsby, and asked for one-half of the proceeds from the sale of catde belonging to Harold Rigsby. Appellant Harold Rigsby filed an answer denying the allegations contained in Brett Rigsby’s complaint, and also filed a counterclaim for ejectment that sought an award of a judgment in favor of Harold Rigsby for sole possession of the property and dismissal of Brett Rigsby’s claims against him.
On April 28, 1999, the trial court entered a decree finding that the real property was the property of the partnership between Brett and Harold Rigsby. The trial court also found that Harold Rigsby was entitled to a credit in the amount of $12,606.25 “should the property ever be sold” to compensate him for his down payment on the property and the reduction in principal on an earlier note prior to its satisfaction. The trial court awarded the proceeds from the sale of the cattle exclusively to Harold Rigsby in paragraph nine (9) of the decree, but in the final paragraph of the decree ordered that the proceeds from the sale of the cattle be divided equally between Brett and Harold Rigsby. In an amended decree filed on May 11, 1999, the final paragraph was changed to award the proceeds of the sale of the cattle to Harold Rigsby.
Harold Rigsby appealed the trial court’s April 28, 1999 decree by a notice of appeal filed on June 10, 1999. This first notice of appeal was untimely with regard to the April 28, 1999 decree. However, Harold Rigsby filed a second notice of appeal on July 28, 1999, in which he asserted that he was appealing from the May 11, 1999 amended decree rather than the April 28, 1999 decree, and that his first notice of appeal was intended to reflect the same. Because the June 10, 1999 notice of appeal would have been timely as to the May 11, 1999 amended decree if that decree had been designated in the first notice of appeal, Harold Rigsby argues that his second notice of appeal should relate back to the filing date of the first notice of appeal. When the Supreme Court Clerk refused to accept the record in this case, Mr. Rigsby filed a motion for rule on the clerk. That motion was submitted as a case in order for this court to decide whether the later notice of appeal from the amended decree could relate back to the filing date of the first notice of appeal that erroneously designated the original decree. On further review, we agree with Mr. Rigsby’s alternative argument that his appeal should be dismissed -without prejudice because no final judgment has been entered in this case.
A final judgment is one that dismisses the parties, discharges them from the action, or concludes their rights to the subject matter in controversy. Ark. R. App. P. — Civil 2(a); Looney v. Looney, 336 Ark. 542, 986 S.W.2d 858 (1999); Haase v. Starnes, 337 Ark. 193, 987 S.W.2d 704 (1999). In the instant case, the trial court’s order awarded Brett Rigsby an equitable interest in the property, but failed to grant or deny the requested relief of partition. We have consistently concluded that a failure to comply with the statutory requirements for partition deprives an order of finality, and precludes this court from properly reviewing the case on appeal. Ark. Code Ann. §§ 18-60-412 et seq. (1987); Looney v. Looney, supra; see also Bell v. Wilson, 298 Ark. 415, 768 S.W.2d 23 (1989); Dorazio v. Davis, 283 Ark. 65, 671 S.W.2d 173 (1984) (declaring that an initial order of partition is not a final order from which an appeal may be taken). Further, there was no attempt to comply with Ark. R. Civ. P. 54(b), which allows entry of a final judgment as to one or more of the parties or claims but fewer than all of them and permits an appeal upon a determination by the trial court that there is no just reason for delay. The failure to comply with this rule, or to adjudicate all of the claims against all of the parties, is jurisdictional and renders the matter not final for purposes of appeal. Corbit v. State, 334 Ark. 592, 976 S.W.2d 927 (1998). Because there has been no final determination on the propriety of partition, we cannot proceed to decide the current appeal.
Appeal dismissed without prejudice. | [
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■ -Smith, J.,
(after .stating the facts). We think the court should not have given ¡appellee’s instruction numbered 1. It was not applicable to the issue in this case. It was not contended that appellee was a trespasser, ,and his right to cross the railroad tracks at the public crossing was not denied. But this right, of course, was not -an absolute one. Under this instruction the jury might well have inferred that appellee had the right-of-way and that there was, therefore, no question as to his contributory negligence for the consideration -of the jury.. The rights of the traveler and of the railroad at public crossings are reciprocal and have been discussed in many decisions of this court, and were correctly stated in the trial 'below in other instructions given to the jury, but these instructions are in conflict with this instruction numbered one. The jury should have been permitted to s-ay whether or not appellee and his companion were guilty of contributory negligence in driving upon the railroad track and should not have been told that appellee was not a trespasser and had the lawful right to be upon the track at the time of his injury. In the recent case of St. Louis, I. M. & S. Ry. Co. v. Transmier, 106 Ark. 530, the -court discussed the reciprocal duties of the traveler and the railroad at a public -crossing, in which case it was -said (.after citing a number -of cases, .on this subject):
“The doctrine of those cases is that ‘the duty of railroads is to exercise reasonable and ordinary care to observe travelers about to -cross at a highway crossing’ and it should refrain from doing any heedless or unnecessary act calculated to frighten teams of travelers rightfully approaching -crossings.”
This duty the railroad must perform under all circumstances, but the duty also rests upon the traveler not to unnecessarily or negligently place -his horse in a position where it may become frightened by the escape of steam, or other noises, which engines necessarily make, even when they are being operated with due -care.
We think, too, that the third instruction given at the request of appellee was erroneous. Under this instruction, th-e jury w-as not permitted to pass up-on the question -of appellee’s contributory negligence in jumping from the wagon. This question of fact should have been passed upon by the jury. Had -appellee remained in the wagon he would not have been hurt, yet the fact that he jumped and was injured did not, as a matter of law, constitute contributory negligence. Where one acts in an emergency, in the presence of an impending danger, he is not held to the exercise of that degree of care which would be -exacted of him if there was an opportunity for reflection ¡and the formation of a deliberate judgment. It is not necessarily a question as to whether one .choice of conduct proves more hazardous than another would have been; but the question is whether or not the choice in fact made was a negligent one under the circumstances of the particular case, and this is a question of fact for the jury and not one of law for the court. St. Louis, I. M. & S. Ry. Co. v. Tuohey, 67 Ark. 209; Woodson v. Prescott & N. W. Ry. Co., 91 Ark. 388; St. Louis, 1. M. & S. Ry. Co. v. York, 92 Ark. 554.
The authorities are conflicting upon the right to prove the loss of profits to the business of an injured party occasioned by bis inability, because of his injury, to give personal attention to his business. The case of Wallace v. Pennsylvania Rd. Co., 52 L. R. A. 35, involved this question, and there is an extensive case note which reviews a great many authorities upon the .subject. In the case cited the court said:
“Profits derived from capital invested in business can mot be considered as earnings, but in many cases profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner.”
The business of the plaintiff in that ease was that of operating a boarding house, and it was shown that by reason of her injury she was thereafter unable to conduct that business. Appellee’s business was not destroyed, and this is not a ¡suit for damage done to that business or for any loss of profits sustained by the owners.
It is permissible always to prove one’s capacity for and disposition to work, and any special qualifications which one has which tends to increase his earning capacity may ¡be shown. And it was, therefore, competent here to show'what appellee’s duties were in connection with his business; what his qualifications were for discharging those duties; what the services of one similarly qualified would have been worth to this business ; and the extent to which appellee had been rendered unable to discharge his customary duties. A somewhat ■similar question was involved in the case of St. Louis, I. M. & S. Ry. Co. v. Osborne, 95 Ark. 310, and the rule to be 'observed in these cases was there discussed. But we think one suing for losses to his business should not be permitted to go further than was there authorized; and we conclude, therefore, that the court improperly admitted the evidence tending to show the accumulated profits of appellee’s business. These profits resulted in part from invested capital and in part from the labor and services of a copartner, and the injury sued for has occasioned no impairment of the earning capacity of either, and appellee should have been permitted to show nothing more than the decreased value of his own services.
For the errors "indicated the judgment will be reversed and the cause remanded for a new trial. | [
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McCulloch, C. J.
This is ¡the second .appeal in this ease. The 'former opinion is published in volume 109 of the reports, page 335, where the 'facts ¡are fully set out. It is a .controversy concerning the title to a quarter section of land situated in Arkansas County. The judgment of this court was 'that the decree of the chancery court be reversed ¡and the cause remanded with directions to enter a decree in favor of the appellant, George LaCotts, who is ¡the appellee in the present appeal.
When the mandate of this court reached the chancery court, the present appellant, John A. LaCotts, who was the defendant ¡and cross-complainant below, filed a ¡supplemental answer ¡and cross-complaint attacking a decree in another cause which forms the basis of this title ■of ¡appellee, George LaCotts, the land having been .sold to the latter pursuant to the terms of that decree, which was against John A. LaCotts. The Chancellor decided that the issues presented in the amended answer and cross-complaint had been .adjudicated by this court and sustained ¡a ¡demurrer to the same ¡and entered a decree in .favor of appellee, George LaCotts, in accordance with the mandate of this court. We are ¡of the opinion that the ¡Chancery court was correct ¡and that the former judgment of this -court was in fact conclusive of the questions sought to be presented in the ¡amended answer and cross-complaint. The action was instituted 'by George LaCotts, the present appellant, against John A. LaCotts, the present appellee, in which the ¡plaintiff asserted title to the land under the decree mentioned and sought to have his title quieted ¡and the defendant in that .action enjoined from interfering therewith. Defendant answered, attacking the validity of the decree under which the sale was made and also alleging that the plaintiff had ¡purchased the land and took the title thereto under the sale as trustee for the defendant and that the plaintiff ¡should be held to be ¡a trustee ex maleficio. The Chancery court decided the case in favor of the defendant, but on appeal to this court the decree was reversed ¡and, as before stated, the cause was remanded with direction to enter .a decree in favor of the plaintiff. Even if the question of the validity of the decree, which formed the basis of ¡appellee’s title, had not been expressly attacked in the pleadings, it was necessarily raised for the reason that appellee’s title was in isisue ¡and that ¡called for any attack upon the decree which involved the question of the validity ¡and strength ¡of appellee ’¡s title.
The principles announced by this court in several cases are absolutely decisive of the present ¡case in appellee’s favor. Chicago Mill & Lumber Co. v. Osceola Land Co., 94 Ark. 183; Gaither v. Campbell, 94 Ark. 329; Baker v. Hudson, 117 Ark. 560. According to the decisions in those cases, a reversal of a decree in chancery, with directions to the Chancery court to enter a certain decree, is conclusive ¡of all the issues that were presented in the case or that ¡could have been presented. However, as ¡a matter of fact, the record of original pleadings in the case shows that the questions raised in the amended answer and cross-complaint were also raised in the original 'answer and crosis-complaint. If ¡appears that appellant abandoned the attack on the decree by failing to take ¡any proof to sustain the cross-complaint, but that did not eliminate it ¡as an issue in the case, and ¡a decree of the chancery court or of this ¡court ¡on .¡appeal, necessarily resulted in an ¡adjudication ¡of that question.
Appellant also treats his plea as a bill of review in the former proceedings in which the decree was rendered under which the land was sold, ¡and has brought up the record in that ¡case and had it consolidated with this. It necessarily follows ¡that the last ¡decree of the chancellor, holding that the. judgment of this court bars any further inquiiy into ¡the title, eliminates the first ¡decree from the case, ¡and an ¡affirmance of the chancellor’¡s last decree is conclusive of the whole matter.
The decree is, therefore, affirmed. | [
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Wood, J.,
(after stating the facts). The appellee testified in part as follows: ‘ ‘ The second visit Doctor Parks made Doctor Dunman dressed the leg and put new bandages on it. There was nothing said at that time about my leg being out of place. My leg got dislocated about the 1st of April.” The appellant moved to strike out the witness’s evidence as to the dislocation for the reason that it was a. matter for expert testimony.
The court did not err in refusing to strike the witness ’s evidence as to the dislocation. This was not exclusively a matter of expert or scientific knowledge. The appellee was competent to testify as to whether his limb was dislocated and out of shape after the same had been set. Ordinary observation would discover whether a limb that had been properly set had been dislocated, especially where such dislocation was so marked as to cause the foot to be twisted, and the limb ¡to be in an ¡abnormal position. Moreover, the appellee, who was enduring the pain and experiencing the ill effects from the broken limb, was certainly competent to testify that the leg, after being set, had become dislocated.
In its first instruction, given at appellee’s instance, the 'Court told the jury in part as follows: ‘ ‘ That if the defendant failed to use reasonable ¡care and diligence “either in the diagnosis, treatment or the giving of instructions to the plaintiff or his ¡attendants, and that such failure resulted in the injuries to plaintiff’s leg, or any of them, of which he complains, without the fault of the plaintiff, it will be your duty to find for the plaintiff, ¡and to assess this damages ¡at such sum as in your opinion, taking into consideration 'all the evidence in the case, will justly, fairly and reasonably compensate him, for such injury or injuries. ’ ’ •
Appellant made a general objection to the instruction, iand he contends here that the same was erroneous because it authorized the jury to consider damages other than alleged in the complaint, and was therefor e abstract, and for the reason also that it was erroneous in the statement of the measure of damages. The appellant’s contention is not correct. The injuries of which “ appellee complained” were that ‘ ‘the defendant, after setting said leg, so negligently, carelessly and unskillfully treated and cared for said leg that the same could not heal, but became inflamed and diseased to an unnecessary extent; the bones thereof to slip, override and overlap and the ends thereof to become dead so that the flesh can not adhere thereto, and said leg to become twisted, shortened 'and so deformed and diseased as to necessitate its amputation. ’ ’
When the imtruotion is taken in connection with the allegations of the complaint, it could not have misled the jury, and it was not abstract so far as furnishing the jury a guide by which to determine whether or not the injuries of Which appellee complained, or any of them, were caused through 'appellant’s negligence. The instruction was no broader than the 'allegations of the complaint, tand the evidence on behalf of appellee which went to the jury without objection, -warranted the instruction. It permitted the jury to find only for those injuries which appellee complained resulted from -appellant’s negligence. It was the duity of appellant, if he conceived that ithe -instruction’ permitted recovery for injuries hot set up in the complaint, to call the court’s attention to same by a specific request. St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; Aluminum Co. v. Ramsey, 89 Ark. 522.
The contention that the instruction is erroneous because it does not correctly define the elements constituting the measure of damages would be well taken if it were the only instruction on that subject.' In Dorris v. Warford, 124 Ky. 768, the court held that “the correct measure of damages' for injuries 'caused by careless and unskillful treatment by a physician is reasonable compensation for the bodily pain land mental suffering, if any, endured by the patient, and the impairment of the plaintiff’s .ability to earn money,” land that an instruction which in effect told the jury to find such damages as they believed f roin the evidence the patient had suffered by reason of the negligent treatment was erroneous. But the instruction under review must be taken in connection with the other instruction which'immediately followed it on that subject; and the two together declared the law as to the measure of damages in .accord with the doctrine announced by the Supreme Court of Kentucky in the above Case, and which is 'also the doctrine of our own court.
Appellant does not contend that the instruction was erroneous in other respects, ¡and it was not. A physician or surgeon is not required to exercise the highest skill possible. He is only bound to possess and to exercise that degree of skill and'learning ordinarily possessed and exercised by members of his profession in good standing, practicing in the same line, .and in the same general neighborhood or in similar localities. He must use rea sonable oare in the exercise of ihis skill and learning, and not 'according to his best judgment in the treatment of his patients. 30 Cyc. 1570 “B,” and cases in note; Dorris v. Warford, 124 Ky. 768, 14 Am. & Eng. Ann. Cas. 602, and note.
In the second instruction the court told the jury as follows: “In assessing damages, you may take into consideration his loss of time, if any, resulting from defendant’s negligence, his loss of earning power, if any, •the bodily pain land suffering which he has been compelled to endure, and mental languish, if any, which have resulted from such negligence, land iany future suffering or inconvenience which he must suffer by reason of such negligence, if 'any.”
In the. first instruction the court 'did not undertake to define the elements constituting the measure of damages, 'but told ¡the . jury that the 'appellee would be entitled to such damages as they found ¡from a consideration of all the evidence would fairly and reasonably compensate him for his injuries, and in the second instruction the court correctly defined the elements which constituted the measure of appellee’s damages. They supplemented each other, and, taken together, are a complete and accurate statement of the law. Satterwhite v. State, 82 Ark. 64.
In the third instruction the court, after telling the jury that the appellant had the burden of proving contributory negligence, further told the jury that “the plaintiff could not be held to have been guilty of contributory negligence in the absence of instructions which it was defendant’s duty to give.” Appellant urges that the instruction assumes that appellant “was not only under a dirty to give instructions, but that he negligently failed to give instructions to the plaintiff. ’ ’ The instruction is not subject to the ¡criticism which the learned counsel of appellant makes. The instruction, fairly construed, does not assume that it was the duty of the appellant to give instructions, or that he negligently failed to give instructions. This was still an issue for the determination of the jury.
Tihe court, ¡ait the instance of the appellant, gave instructions which clearly told 'the jury that if .appellee’s condition was the result of his own negligence in failing to take proper .care of himself by attempting to treat the injury himself, that their verdict should he for the appellant.
When the instructions on the subject of contributory negligence are considered together, they are not in conflict and the jury had the proper guide in the consideration of that issue.
The court ¡did not err in refusing appellant’s prayers for instructions numbered 3 land 5 . These instructions, us we view the evidence, were ¡abstract. The idea contained in these instructions was sufficiently covered by the instruction which the ¡court gave on contributory negligence at the instance of the appellant.
While we may differ with the jury as to the correctness of their finding on the issues of negligence .and contributory negligence, we recognize that it was their province to determine these issues where there is a conflict of testimony. There is such conflict here, and therefore these issues were for the jury, ¡and there was evidence to sustain their verdict. The judgment is therefore affirmed.
3. If you find from the evidence that the plaintiff removed the splints .and bandages placed thereon ¡by the defendant, or removed the splints and bandages without the consent of the defendant, and that the notion of the plaintiff in so removing the splints and bandages, or either of them, if he did remove them, contributed to his condition, you are instructed that plaintiff can not recover.
5. ’ You are instructed that it is the duty of a patient to. follow the Instructions .and advice of the physician employed by him, and if you believe from the evidence that the plaintiff did not follow the defendant’s advice, and this failure contributed to his condition, plaintiff can not recover. (Reporter.) | [
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Kirby, J.
This is the second .appeal of this case, a sufficient statement of which appears in the opinion on the first appeal, Eminent Household of Columbian Woodmen v. Howle, 109 Ark. 400.
The court held there that the section of the constitution and ¡by-laws of the society providing that the policy of insurance or 'benefit certificate .should be void, if the death of the member or guest occurred while he was violating the law, became a part of the contract, proof of which would prevent a recovery by the beneficiary, and the .case was reversed and remanded for a new trial because the court erred in refusing to permit the insurer to show that the insured met his death while violating the law.
On the trial anew, judgment was rendered against the appellant, from which she prosecutes this appeal and contends that the court erred in the exclusion of certain testimony. She offered to show by the testimony of four witnesses that they were acquainted 'with her husband, the deceased, that they knew his mental condition at the time he engaged in the altercation with the town marshal of the town of Searcy, which resulted in his death and “that he was of unsound mind, temporarily insane and crazy on the subject of the controversy between him and the town marshal, at the time, and not capable of understanding the consequences of his acts, nor responsible for them.”
The benefit association had the right to show that the insured met his death while engaged in a combat or in consequence of a violation of the law to avoid liability for the payment of the benefit in accordance with the terms of' the contract, as already held.
A proper relation however must be shown to exist between the violation of the law and the death of the insured to make good the defense — that • is that death followed as a natural and legitimate effect of such violation. Bacon Benefit Societies, section 339; Insurance Co. v. Seaver, 19 Wallace 531: Murray v. New York Life Ins. Co., 96 N. Y. 614; Bloom v. Franklin Life Ins. Co., 97 Ind. 478.
Under our law if the deceased was of unsound mind and not responsible for his acts in assaulting the marshal of the town by whom he was killed, he could not have been convicted of an offense if the combat had resulted differently, and the marshal been killed by him instead, and the authorities also hold in accordance with this view that the deceased must have met his death while voluntarily engaged in a violation of the law, in order to avoid the policy or benefit certificate on that ground.
An act can not be regarded as voluntary, where the person doing it does it under the control of an insane impulse which deprives him of the capacity to govern his own conduct in accordance with reason. Newton v. Mutual Benefit Life Ins. Co., 76 N. Y. 426.
And if the insured was of unsound mind, insane, and not responsible for his acts at the time he was killed as the evidence offered tended to show, then he did not voluntarily violate the law, not being responsible for the consequences of his acts, because of his insanity, and the fact that he was killed in the difficulty which he provoked, was not such a violation of the law within the meaning of the contract, as would avoid it.
We have not found any .case directly in point, but see no reason why it is not controlled by the same principle that prevents the death of the insured by his own hand when he is insane, from forfeiting his policy, providing it shall be void if the insured committed suicide.
In Blackstone v. Standard Accident Insurance Co., 3 L. R. A. 486, it was held that where there was testimony sufficient to go to the jury on the question of the sanity of the insured at the time he came to his death by his own hands, that the policy was not forfeited under its terms, providing that it should be void if the insured committed suicide. See, also, Charter Oak. L. Ins. Co. v. Rodel, 95 U. S. 232.
The court erred in excluding the testimony and the'' judgment must be reversed therefor.
It is too late to raise the question now that under a clause in the policy, appearing to limit the grounds for contest thereof to two, not including the death -of the in-snred while engaged in the violation of the law, that such provision ican not he considered -a defense, it having been held in the.former .opinion, which is the law of the- case, that -such -provision of the- by-laws became a part of the contract of insurance and -constituted a defense to the suit.
The abstract herein is sufficient to raise the questions presented -and it is istat-ed in the brief that they were saved at the trial by proper objections, and exceptions, and also in a motion for a new trial filed, which was referred to in the brief.
For the error pointed out, the judgment is reversed and the cause remanded for a new trial. | [
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Wood, J.,
(after stating the facts). The appellants contend that the decree condemning the lands in controversy to be sold for the nonpayment of taxes was 'conclusive of the issues raised by .appellees in their petition, towit, that they had paid 'and tendered for payment the taxes, on the lands in controversy for the year in which the siame were returned .as delinquent, and they rely upon the case of Pattison v. Smith, 94 Ark. 588. That was a suit in ejectment by the owner of the land sold for delinquent taxes against the purchaser at the sale, .alleging that the taxes for which the lands had been sold had been paid and 'that the decree condemning the same for sale was therefore void. The court held in that case that the decree of the chancery court condemning the land to be sold under the act of 1895 was conclusive, on collateral attack, of the question as to whether or not the taxes had been paid, (and that the land owner could not impeach the decree Iby showing actual payment of the taxes. That case has no application here for the reason that the appellees filed their petitions herein within ¡two years from the rendition of the decree under which their lands were sold, ■a.s they were authorized to do ¡by the act under which the lands were sold.
Act 262 of the Acts of 1909, under which the lands in controversy were sold for the alleged nonpayment of taxes, provides in part ¡as follows: “And provided that the owner of said lands, * * * may at ¡any time within three years after the rendition of the final decree herein provided file his petition in said court, ¡alleging the payment of taxes on said lands * * for the year, for which they were sold ¡and upon the establishment of that fact the court shall vacate and ¡set aside the said decree as to such lands.”
Appellees ’ petitions therefore were not collateral attacks upon the decree of the ,chancery ¡court, but were expressly authorized by the statute, and therefore must be considered as direct proceedings in the original action, attacking the decree.
The appellants concede that the appellee, Wappanocca Outing Club, paid the taxes on the lands claimed by it. This, under the provisions of the act, shows that the decree of the court was correct as to appellee, Wappanocoa Outing Club.
But appellants contend that it does not protect appellee, Jewell. The court found that Jewell “tendered and offered to pay the levee taxes for the year 1908 during the ‘time allowed by law for the payment of said taxes and that the said tender was refused by the collector of said taxes. ’ ’
In Scroggin v. Ridling, 92 Ark. 630, we held. “Where the owner of land in good faith (attempted to pay the taxes on all of bis land, but by the collector’s mistake the taxes on a part of it were not paid, the owner will be entitled to redeem 'the land.” This principle applies here. The offer of appellee, Jewell, to pay and Shis tender of the taxes to the collector was 'tantamount, under the provisions of the statute, to a payment, and the 'collector, under those circumstances, was not authorized to return his land as delinquent. Kinsworthy v. Austin, 23 Ark. 375; Gunn v. Thompson, 70 Ark. 500; Knauff v. National Coop. & Woodenware Co., 99 Ark. 137.
'The decree is therefore affirmed. | [
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■MoCullooh, C. J.
The petitioners were convicted of a crime constituting a felony in the circuit court of Sevier county, iand they bring the record here on certiorari to test the validity of the proceeding, it being contended that the-adjourned term of court at .which the judgment of the conviction was rendered was illegally held. The basis of this contention is that there was no proper adjournment of the court over to the day for the special adjourned term.
The Sevier circuit court convened in regular session on the day specified by statute in January, 1915, and remained continuously in session until February 6th, when there was an adjournment, and the special adjourned term began on March 4,1915. The record of the court _ on February 5th shows the following entry: “Ordered that court adjourn until.....” This was signed by the . judge, and immediately on the same page follows an order of dismissal in another criminal case, and then follows an entry in these words: “Ordered that court adjourn until Thursday morning, March 4th, 1915. ’ ’ This entry was signed by the judge, and the next entry on the record is the opening order on March 4th showing the opening of the court pursuant to the adjournment on February 6th. A term of court in another county intervened between the two dates, so it foHows that if on February 6th there was an adjournment ¡of the court without specifying ¡any ¡other date for reconvening the court, the term lapsed. Roberts & Schaeffer Co. v. Jones, 82 Ark. 188. The order of adjournment, however, shows on its face that it was incomplete, and we are of the opinion that it is explained 'and ¡controlled by the subsequent entry on the ¡same day, ¡signed by the judge, ¡showing that the adjournment was to a definite date. The term did not lapse, for ¡adjourned sessions are authorized by statute even over beyond a term of court in 'another ¡county. McVay v. State, 104 Ark. 629.
The ancient rule- was that a term ¡of court was considered as of one day and the ¡court ¡deemed to be continuously in ¡session from beginning of the term until the final adjournment. In conformity with that rule it has been held that the court may, at ¡any intermission time before final adjournment, reconvene. Barrett v. State, 1 Wis. 156. It was decided by the Indiana Supreme Court that after ¡an adjournment from one day to the next the court might reconvene ¡and proceed with business, the basis of the decision ¡being that the adjournment over from day to day was a mere intermission, and in contemplation ¡of law the ¡court was ¡continuously in session. Bowen v. Stewart, Admr. 128 Ind. 507.
Our statute manifestly ¡contemplates different days of the term of ¡court, but it does not take ¡account of parts of ¡days, and even if the ©ourt ¡announces ¡an adjournment it has the power to reconvene ¡on the same day for the purpose of transacting business; that is to say, it has the power to do iso, but a question anight arise as to the right of the court 'to proceed in the transaction of particular 'business in the absence of the interested parties and without notice. That question does not, however, arise in the present ¡case ¡and we have no doubt of the power of the court, even if in fact an order of adjournment has been ¡announced, to reconvene the court and change that order and proceed with other business. In any view that might be taken of this record, it does not show that there was an adjournment without designation of another day for reconvening, and the term did not, for that reason, lapse.
The prayer of the petition is therefore denied. | [
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Wood, J.,
(after stating the facts). The court did not err in refusing appellant’s prayers for- instructions numbers 2 and 4. The 'giving of prayer No. 2 would have permitted the jury to find that appellant Daniels was not liable for the rents under the lease contract for a period of fifteen days during a dangerous floe of ice in the river, if the manager of the appellee instructed the appellant to tie up said boat during such time. This would have been varying the terms of the written contract by oral testimony. The written contract only relieved appellants of liability in case of ‘ ‘ extraordinary breakage of machinery, such as shafts, cylinders, collapsing of flues, and such' other accidents as may 'Cause said steamer to go on the dock;” and in case of “storms, explosions,” fire, etc.,'that 'resulted.in the destruction of .the boat ¡or such injury to her as would put her out of use; or, in other words, those accidents that would ¡destroy the boat entirely or so injure her that she would have .to be placed on -the dock for repairs. The contract did not contemplate a deduction for rents during suieh time as it might be dangerous to navigate the river on account of ice floes or some other dangerous conditions. Nothing short of some physical injury to the vessel, such as mentioned in the contract, would have relieved appellant Daniels from the payment of rents 'during such period as the boat was in that condition.
Prayer No. 4 for instruction would have permitted the jury to deduct from the 'amount due appellee any sums expended by appellant Daniels for taking care of the boat during the time that she was tied up on laiCcount of the ice, and during the time repairs were being made on her rudder. Such expenses were not in 'Contempla tion of the written contract, and the court therefore did not err in rejecting this prayer.
The court allowed the jury to find for the 'appellant Daniels the necessary expenses incurred 'by -him in equipping the boat and in repairing same, ¡and for the time lost while the rudder was being installed. In so instructing the jury, the court certainly construed the contract as favorably to the appellant Daniels as he was entitled. The court by its ruling upon the instructions sought to narrow the issue to the terms of the written contract which was correct.
The judgment is therefore affirmed. | [
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McCulloch, C. J.
This controversy concerns the title of a tract of land in Clay County, Arkansas, containing eighty acres and described as the east half of the northeast quarter, section 18, township 21 north, range 6 east. Appellant has a Clear paper title. The land was patented by the United States to the State of Arkansas July 5, 1856, and the State in turn patented to P. K. Laster and T. J. Melon. Melon quitclaimed to Lester and the heirs of the latter, who died intestate in the year 1877, sold and conveyed the land to appellant in February, 1911. Appellees claim title under their ancestor, Louis DeMoss, and attempt to prove (that ithe latter acquired title by adverse possession. They instituted this action at law to recover the possession of the land from appellant, and on the latter’s motion the cause was transferred to equity Where he filed a cross-complaint asking that his title be quieted. Appellees undertook to show that a- conveyance was executed by one Schultz to DeMoss dated March 10, 1852, and actual occupancy of the land by DeMoss for a period of more than seven years. The proof shows that DeMoss entered upon the land in the year 1862 and built a house thereon iand cleared and put in cultivation a considerable portion of tbe land, the quantity varying, 'according to itbe (testimony of witnesses, from twenty-five to sixty acres. He lived on the land until bis death, which occurred in 1869, and was buried there in ¡a private burying ground. His widow married again, but continued to occupy tbe land and rent it out to tenants until she died in 1873, iand tbe land was. controlled by a guardian of one of tbe heirs, who was a minor, for several years thereafter. The land wias subsequently (abandoned — tbe exiaot time is not shown in tbe record — iand tbe house wias destroyed by fire, tbe fences rotted down 'and became obliterated, iand the cleared lands grew up again. 'The land remained in that condition until about 1905 or 1906 when ia man by the name of Sharp purchased ia small tract adjoining this land and in clearing it up got a few acres over the line. After Sharp left tbe place, ia man named Phillips, with his family, moved into the house in 1907 'and continued to enlarge and fence the clearing on tbe land in controversy. At the time appellant purchased the land from the Lester heirs,,Phillips’ widow was occupying it; that is to say, she was living in tbe house on the adjoining Sharp land iand was cultivating the newly cleared land on the place in Controversy. There is a controversy as to the amount of the cleared land at that time. The testimony adduced by ■appellant tends Ito show that there were only nineteen acres, but tbe testimony adduced by the other side tends to show a much larger quantity. Neither Phillips nor his wife asserted .any title to the land and never attorned to 'anyone as landlord nntil after the purchase by appellant, when Mrs. Boyd (formerly Mrs. Phillips) attorned to appellant and executed to him a rental contract for the year 1911. Phillips and his wife were mere “squatters” on the land, 'and, as before stated, asserted no claim of ownership. About two weeks before appellant 'purchased the land from the Lester heirs, he went to see the occupant, Mrs. Boyd, .and she told him that she was not asserting any claim to it, but said that she had as much right to it as anyone else. Thereupon he went over to another county where the Lester heirs lived and made the purchase for the sum of a thousand dollars. One hundred dollars was paid in cash and the remainder was paid on a subsequent date. The Lester heirs executed to appellant .a special warranty deed, which was subsequently lost or destroyed, and a quitclaim deed was then executed.
Appellant testified that .alt the time he made 'the purchase he had no information whatever (that appellee or anyone else made 'any claim to the land or that 'there had ever been any occupancy of the land by DeMoss. He is corroborated in this by other witnesses. One of the Lester heirs testified that he had never heard of the DeMoss heirs asserting any claim to the land until after it was sold to appellant, or that the land had ever been occupied by DeMoss.
The testimony shows clearly that as far back as the year 1898 ail the improvements- on the land had been destroyed 'and that it had grown up with timber. In other words, it had returned to its wild state of nature, leaving very little evidences of ¡any improvements ever ¡having been made. The testimony adduced by appellees does not tend to show that any claim was asserted by the DeMoss heirs until after the purchase by appellant, nor does it show that appellant had any information that there Was a claim made by the DeMoss heirs except that Mrs. Boyd testified that when appellant Came to see her about the land he showed her .a deed and said that it was a deed from the DeMoss heirs. This, however, was contradicted 'and we think the preponderance of the testimony is against the conclusion thiat appellant made any such statement ito Mrs. Boyd. The evidence -establishes clearly 'the fact, we think, thiat appellant wlas entirely innocent of any knowledge or information that there was an adverse -claim to the land at the time he made the purchase from the Lester heirs. The tax receipts exhibited in the record show that the Lester heirs paid the taxes on the land continuously from the year 1892 up to the time the sale was made to appellant. One of the heirs testified that Lester had always paid taxes on the land, hut there is no evidence of it in the way of tax re ■ceipts exhibited prior to the year 1892. It seems that the record of Clay County was destroyed by fire that year. All the records, including the records of deeds, were destroyed. The only evidence of the alleged conveyance from Schultz to DeMoss is that deduced from the books of an abstracter of titles. There was no official record, in other words, showing this deed. The abstract books 'contain a notation indicating that there was an error in the description as to the particular township, indicating that the record showed the township to be 21 east. The abstracter testified that from his recollection in copying the (abstract, land from wihat he could infer from the notation, the range number was correct -but that there was a clerical error in the record of the township number.
It miay be conceded (without so deciding) that appellees have made sufficient showing to establish title in their ancestor by adverse possession under color of title; nevertheless, the testimony shows very clearly that (appellant is entitled to have a decree quieting his title (and declaring his right of possession. This results upon two distinct grounds. In the first place, appellant was an innocent purchaser for value. According to the undisputed testimony, the occupancy .of the heirs of DeMoss had been abandoned several years prior to the year 1887. The testimony of a witness who described the condition of the land during that year shows that 'the part formerly in cultivation had been entirely (abandoned and was :an old, thrown-out field, with no (buildings of any kind on it, or fences. He stated that all evidences of fences had been obliterated. The land was then growing up, (and witnesses who describe it .alt different periods thereafter show that it grew up (Completely. The 'Condition, as described by ia witness, in the year 1898 was that it was grown up then in timber, ¡and those who describe it up to the years 1905 or 1906, when Sharp began clearing up a little of it, Was that it was in its original wild state, leaving very little evidences of former cultivation. Some of the witnesses (Say Ithlalt there were a few fruit trees on the land and occasional evidences of the land having once been in (Cultivation, but that to the ordinary observer it was in a wild state, covered with timber. Appellant had no notice of the claim of (the DeMoss heirs, either actual or constructive. Even if the record of the deed from Schultz to DeMoss (which was not in the line of appellant’s title, 'and notice of which could not be chargeable ¡against him, Turmam v. Sanford, 69 Ark. 95), could ever have been treated ¡as constructive notice of the DeMoss ¡claim, the record had been ¡destroyed by fire in the year 1892, ¡and, the occupancy by the DeMoss •heirs having been ¡completely ¡abandoned, there was nothing whatever to constitute constructive notice ¡of the DeMoss claim. The evidence is quite convincing that neither the Lester heirs nor ¡appellant had any intimation whatever that DeMoss ¡or his heirs had ever ¡occupied the land or that the heirs were mlaking ¡any claim of title. Learned ¡counsel for appellees rely upon the fact of appellant holding under ¡a quitclaim deed ¡as ¡charging him with notice ¡of defects in the title. That contention, however, is unsound for this ¡court has decided that the mere fact that there is a holding under a quitclaim deed does not defeat the ¡claim of ¡an innocent purchaser. That fact is merely ¡considered ¡as ¡a circumstance in determining whether or not the purchaser was in fact innocent of knowledge of any adverse claim, but the purchaser may show, notwithstanding the form ¡of conveyance, that he Was in fact without any information of any other claim of ownership. Miller v. Fraley, 23 Ark. 735; Brown v. Nelms, 86 Ark. 368. All of the records and ¡all the circumstanoeis in this case tend to support ¡appellant’s claim that he purchased the land in good faith, ■ relying upon the fact that his grantors had the record title, ¡and without ¡any notice ¡that there were ¡any ¡adverse claims. There is, it is true, ¡evidence to the effect that some people living in the neighborhood had information of the original DeMoss occupancy, ¡and that the DeMoss heirs would or could assert a claim of ¡ownership, but it was not information so notorious that appellant is presumed to have known about it, and there is no evidence that he did in fact know of it. The land was in a wild state and the Lester heirs were paying taxes ¡on it from year to year and they had the record title. We are of the opinion, therefore, that appellant fully made out his claim of an innocent purchaser and that the decree should have been in his favor on that ground. The occupancy of Phillips and ¡his wife was without any Maim of ownership 'and therefore was not sufficient to put appellant upon notice that there were 'any adverse Maimants.
We are of ¡the opinion, also, that even if BeMoss or Ms heirs acquired title by adverse possession, that title was reacquired by the original owners, 'the Lester heirs, by payment of taxes under color of title under the Act of March 18,1899. The undisputed evidence is that Lester 'and Ms heirs paid taxes on the land continuously up to the time it was sold to appellant. 'Their paper title, which constituted absolute title up to the time the ownership was wrested from them, if at all, by the adverse occupancy of BeMoss, continued thereafter at least as dolor of title, land the payment of taxes wMle the land was in a wild state and unoccupied restored the title to them by adverse possession according to the terms of the statute. The lands were, according to the testimony, wild and unoccupied within the meaning of the Act of 1899, at least from the yetar 1898 up to the year 1905 or 1906, when Sharp Commenced Mearing over the line. Three., payments were therefore made after the passage of the Act of 1899. The statute applies 'only to “unimproved 'and unin'closed land;” that is to say, land that is wild and in a state of nature. This does not mean, however, that (the lands must never have had any other status, for improved lands may be permitted (to return to a state of nature. The statute relates to (the condition of the lands at the time the payment of taxes is made under color of title, regardless of the farmer state of the lands; and if at that time they are unimproved land uninclosed, that is to say in a wild state as before the improvements were first made, then they fall within the terms of the statute and such 'payments amount to occupancy which will in course ¡of time ripen into title by limitation. Fenton v. Collum, 104 Ark. 624.
Tbe decree of tbe cbauoellor is therefore reversed iamd tbe ¡cause is remanded with directions to enter a decree for appellant in accordance witb tbis opinion.
Act No. 66, p. 117, Acts 1899. | [
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ROBERT L. Brown, Justice.
This appeal concerns the ability of a plaintiff-garnishor (T & T Materials, Inc.) to bring a separate fraud action against a garnishee (Northwest Paving Co., Inc.) and the original defendant (Willie Mooney). The trial court dismissed the separate fraud action, and the court of appeals affirmed. T &T Materials, Inc. v. Mooney, 68 Ark. App. 77, 4 S.W.3d 512 (1999). We granted review on February 3, 2000. We conclude that T & T’s remedy lay within the framework of the garnishment statutes, and we affirm the dismissal of the fraud action.
On January 6, 1997, Mooney agreed to a consent judgment in favor of T & T in- the amount of $55,023.31 plus postjudgment interest and costs. The judgment was taken in Crawford County Circuit Court, Crawford County being Mooney’s residence. On May 29, 1997, Mooney answered T 8c T’s interrogatories and request for production of documents and stated that his present occupation was “Superintendent, Northwest Paving Co., Inc.,” which was located in Crawford County. On June 2, 1997, T & T sent a writ of garnishment to Mooney and to his employer, Northwest Paving, as garnishee, accompanied by allegations and interrogatories propounded to Northwest Paving.
On June 24, 1997, Northwest Paving answered the allegations and interrogatories and stated that it, as garnishee, held $200 payable to Mooney. Counsel for T & T next wrote three letters to counsel for Northwest Paving (dated July 9, 1997; August 11, 1997; and August 25, 1997), requesting information about payroll deductions resulting from the writ of garnishment. No response was forthcoming from Northwest Paving.
On September 11, 1997, counsel for T & T wrote the circuit judge in Crawford County and enclosed a precedent for an order of disbursement for Northwest Paving to pay over to T & T all garnished wages. On September 15, 1997, Northwest Paving filed an amended response to the writ of garnishment in which it stated that it was not Mooney’s employer and that it was not holding any money for Mooney and was not indebted to Mooney. The amended response further stated that Northwest Paving leased its employees from a Texas firm named Certified Systems, Inc. On April 15, 1998, the Crawford County circuit judge dismissed the writ of garnishment against Northwest Paving.
On March 17, 1998, T & T sued Mooney and Northwest Paving in Pulaski County Circuit Court and alleged that the named defendants had engaged in a pattern of fraud and deceit by providing false information relating to Mooney’s employment status and by not disclosing Mooney’s true employment. T & T sought compensatory damages in the form of uncollected garnishment proceeds and punitive damages. T & T later filed an amended complaint in its fraud action and added a claim for constructive fraud. Mooney and Northwest Paving moved to dismiss the amended complaint under Ark. R. Civ. P. 12(b) on six grounds. The Pulaski County circuit judge then transferred the fraud action to Van Burén County, which was T & T’s place of business. On October 20, 1998, the Van Burén County circuit judge dismissed the fraud action without prejudice, and in an accompanying letter opinion, concluded that the garnishment statutes covered the situation raised by T & T.
When this court grants a petition to review a case decided by the court of appeals, it reviews the case as if it had originally been filed in this court. Youngman v. State Farm Mut. Ins. Co., 334 Ark. 73, 971 S.W.2d 248 (1998). The pivotal point raised by T & T in this appeal is whether the Van Burén County circuit judge erred in finding that only the Crawford County Circuit Court had jurisdiction over this matter as part of the garnishment process. Specifically, T & T contends that because Northwest Paving was not Mooney’s employer and was not holding money for Mooney, it was not a garnishee and the garnishment statutes are inapposite. This left a separate fraud action as T & T’s only recourse, under its theory of the case.
We disagree with T & T’s characterization of this matter for several reasons. It is clear from the record that Northwest Paving first identified itself as a garnishee. It was not until some three months later that Northwest Paving amended its response to say that it was not Mooney’s employer. That was on September 15, 1997. T & T did not take the issue to the Crawford County circuit judge as part of the garnishment action but rather waited until March 17, 1998, to file a separate fraud action in Pulaski County Circuit Court.
The garnishment statutes that are applicable to this case are these:
The garnishee shall, on the return day named in the writ, exhibit and file, under his oath, full, direct, and true answers to all such allegations and interrogatories as may have been exhibited against him by the plaintiff.
Ark. Code Ann. § 16-110-404 (1987).
(a) If the garnishee files his answer to the interrogatories exhibited and the plaintiff deems the answers untrue or insufficient, he may deny the answer and cause his denial to be entered on the record.
(b) The court or justice, if neither party requires a jury, shall proceed to try the facts put in issue by the answer of the garnishee and the denial of the plaintiff.
Ark. Code Ann. § 16-110-405 (1987).
(a) If the issue is found for the garnishee, he shall be discharged without further proceedings.
(b) However, if the issue is found for the plaintiff, judgment shall be entered for the amount due from the garnishee to the defendant in the original judgment, or so much thereof as will be sufficient to satisfy the plaintiff’s judgment, with costs.
Ark. Code Ann. § 16-110-410 (1987).
Northwest Paving and Mooney contend that if T & T believed the response to its allegations and interrogatories to be untrue or insufficient, it should have “denied” or objected to the response under § 16-110-405 and submitted the matter to the circuit judge or a jury for determination. We agree. T & T claims that there was no garnishment jurisdiction because Northwest Paving was not an employer. But that was exactly the issue to be decided by the circuit judge. And the ancillary issue was if Northwest Paving and Mooney abused the garnishment process, in what amount was T & T damaged? T & T argues that § 16-110-410 limits its recovery against Northwest Paving to the amount it owed to Mooney and that no amount was due. Thus, it contends that the remedy afforded was an empty one. We disagree. T & T is correct that garnishment is purely a statutory remedy, and the garnishment statutes must be strictly construed. See Moory v. Quadras, Inc., 333 Ark. 624, 970 S.W.2d 275 (1998). But surely T & T could have claimed the amount Northwest Paving stated it owed as the garnishee prior to the time it reneged and filed an amended response denying Mooney’s employment. Again, this was an issue for the circuit judge to resolve within the context of the garnishment statutes. In sum, T & T failed to object to the amended response or otherwise to pursue its remedies under the garnishment statutes and instead waited six months and filed a separate fraud action in Pulaski County.
There are several reasons that militate against affirming T & T’s manner of proceeding in this matter. First and foremost, as already referenced, T & T had a remedy under the garnishment statutes. Also, were we to authorize T & T to forego that remedy and file a splinter action in a different venue, we would be sanctioning split causes of action, which is something we have expressly held we will not do. See Spickes v. Medtronic, 275 Ark. 421, 631 S.W.2d 5 (1982); Lisenby v. Farm Bureau Mut. Ins. Co., 245 Ark. 145, 431 S.W.2d 484 (1968); Eiermann v. Beck, 221 Ark. 138, 252 S.W.2d 388 (1952).
Moreover, there is no question in our minds that the real character of T & T’s cause of action is one involving abuse of the garnishment process and not fraud. We have been very clear in our decisions that when two or more actions are pled that lie in different venues, the proper venue is decided by the real character of the action and the principal right being asserted. See Bristol-Myers Squibb Co. v. Saline County Circuit Court, 329 Ark. 357, 947 S.W.2d 12 (1997) (per curiam); Fraser Bros. v. Darragh Co., 316 Ark. 297, 871 S.W.2d 367 (1994); Atkins Pickle Co., Inc. v. Burrough-Uerling-Brasuell Consult. Eng’rs, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982). This was a garnishment proceeding and the proper remedy for any abuse of the garnishment process lay under the garnishment statutes.
In short, T & T had a remedy under the Garnishment Act and failed to pursue it. We affirm the dismissal of the fraud action by the Van Burén County Circuit Court. Because we do not countenance a separate action for fraud under these facts, we need not address T & T’s second point relating to proper venue for the fraud action.
Affirmed.
On September 22, 1997, T & T did attempt a garnishment action against Certified Systems, Inc., but by that time Mooney’s wages had decreased and were insufficient for garnishment purposes.
A second statute speaks in terms of rendering judgment against the garnishee in the amount the garnishee held for the defendant at the time the writ of garnishment was served, but the statute is limited to cases where the garnishee neglects or refuses to answer interrogatories. See Ark. Code. Ann. § 16-110-407 (Supp. 1999). | [
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Donald L. Corbin, Justice.
Appellants George Hamaker and Jane Hamaker Bowman appeal the judgment of the Bradley County Probate Court denying their claim against the estate of Robert Lee Hamaker. For reversal, Appellants argue that the probate court erred: (1) in finding that the statute of limitations barred their claim against the estate; and (2) in denying their peti tion to compel an inventory of the estate. This case was certified to us from the Arkansas Court of Appeals pursuant to Ark. Code Ann. § 28-l-116(a) (1987); thus our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(d). We conclude that the probate court was without jurisdiction to decide this matter, and we reverse.
This case involves a dispute over proceeds from the sale of timber from land owned as a tenancy in common. The record reveals that Robert Lee Hamaker and Reaves Hamaker were brothers who inherited forty acres of land in Banks, Arkansas, from their father George Hamaker. Robert married several times, but never had any children. Reaves married and had two children, Appellants. Robert lived on the land in Banks, while Reaves moved his family to Florida. Following the death of their father, Appellants gained title to the forty acres of land as tenants in common with their uncle.
In 1988, Robert sold $15,970.04 worth of timber from the land. In 1990, he again sold $32,405.72 worth of timber. He never notified Appellants, his co-tenants, of these sales, or shared the proceeds with them. According to Appellants, they visited this property very little. They contend that they did not learn of the timber sales until after their uncle’s death on June 6, 1995. Appellant George Hamaker testified that he noticed much of the timber had been removed from the land when he visited the property after his uncle’s funeral. George in turn notified his sister Jane of the timber removal. Appellants then made inquiries regarding the timber and discovered the two prior sales by their uncle.
Robert died testate, and his will was admitted to probate on June 19, 1996. That will named his widow, Appellee June Hamaker Strickland, as sole beneficiary, as well as personal representative of his estate. The will also provided that in the event his wife predeceased him, his estate would then pass to Appellants. Notice of the will was first published on June 26, 1996. Appellants, however, claimed they did not receive notice until September 21, 1996. Nevertheless, they filed a claim against the estate for $24,187.88, one-half of the proceeds from the sale of the timber, on September 16, 1996. Appellee filed a response, arguing that the claim was barred by the statute of limitations. Appellants subsequently filed a petition with the probate court seeking an order to compel an inventory of their uncle’s estate.
A hearing was held on March 1, 1999, during which the parties stipulated to the facts surrounding the two timber sales. Appellants testified that they visited the land infrequently and did not learn of the timber removal until after the death of their uncle. After receiving briefs on the issue, the probate judge found that the statute of limitations began to run at the time that Appellants’ uncle sold the timber, thus barring Appellants’ claim. Furthermore, he denied the parties’ motion to compel an inventory of the estate. From these orders come this appeal.
Appellants argue on appeal that their uncle as a tenant in common was a fiduciary and had a confidential relationship with them. Therefore, Appellants assert that the statute of limitations did not begin to run until they received notice of the sale. Appellee responds that Appellants’ cause of action sounds in trespass, and that the three-year statute of limitations began to run at the time of the trespass. Although neither party raises the issue, we reverse on the ground that the probate court lacked jurisdiction to hear this matter.
Subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court. Hilburn v. First State Bank, 259 Ark. 569, 535 S.W.2d 810 (1976). In fact, this court has a duty to determine whether or not we have jurisdiction of the subject matter of an appeal. Id. The probate court is a court of special and limited jurisdiction, even though it is a court of superior and general jurisdiction within those limits. Smith v. Smith, 338 Ark. 526, 998 S.W.2d 745 (1999); Hilburn, 259 Ark. 569, 535 S.W.2d 810. It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Id. The constitution vested in the probate courts exclusive original jurisdiction “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law.” Ark. Const, art. 7, § 34, as amended by Amend. 24, § 1; Hilburn, 259 Ark. at 572, 535 S.W.2d at 812. The judge of the probate court shall be responsible for trying all issues of law and of facts arising in causes or proceedings within the jurisdiction of his court. Id. The probate court, however, lacks jurisdiction to determine contests over property rights and titles between the personal representative and third par ties or “strangers” to the estate. Smith, 338 Ark. 526, 998 S.W.2d 745.
We have defined a “stranger” to the estate as one who is not an heir, distributee or devisee of the decedent, or a beneficiary of or claimant against the decedent’s estate. Id. It is true that Appellants in the present matter were designated as contingent beneficiaries in their uncle’s will. Mrs. Hamaker, however, did not predecease her husband, and thus, became the sole heir to his estate. Appellants, therefore, can no longer be considered beneficiaries of their uncle’s estate.
Moreover, Appellants cannot be considered claimants to the estate. In Pickens v. Black, 316 Ark. 499, 872 S.W.2d 405 (1994), this court held that the appellants’ claim to real property based on an alleged oral contract between them and their father and their status as remaindermen were not claims against the estate, but rather represented claims made adversely to the estate by those who were not beneficiaries of the estate. That is the situation now before us. Appellants’ claim against the estate is not a claim made as beneficiaries; rather, it is a claim made adversely to the estate by parties with no legal or equitable rights under the estate. The following passage from Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942), proves enlightening to the present situation:
The general rule, supported by our own cases, is stated in Gary’s Probate Law, 3d Ed., § 23, p. 20, relative to the power of the probate court to determine the title to contested property, and it is limited as to contestants “to those interested in such property as equitably or legally entitled to some distributive share therein or in the residue, and to creditors who voluntarily and upon general notice and without special citation present their claims. All controversies between executors, administrators and guardians, or those interested in the particular estate, and other persons not interested in it, must be settled in another forum.” King v. Stevens, 146 Ark. 443, 225 S.W. 656, and Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808.
Accordingly, we cannot say that Appellants are claimants against their uncle’s estate simply by virtue of the fact that they claim entitlement to money owed to them by their uncle at the time of his death. Because Appellants are strangers to the estate, the probate court lacked jurisdiction to decide the dispute over the timber proceeds. The foregoing decision does not preclude Appellants from filing a cause of action in a court with proper jurisdiction.
Reversed and dismissed without prejudice. | [
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PER CURIAM.
Warden Franks, by his attorney, has filed a motion for rule on the clerk.
His attorney, Eric T. Bishop, admits in his motion that the record was tendered late due to a mistake on his part.
We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion wfil be forwarded to the Committee on Professional Conduct. | [
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LAVENSKI R. SMITH, Justice.
We recently affirmed Kenneth Joel Rushing’s conviction and life sentence for the first-degree murder of William Jack Allen. Rushing v. State, 338 Ark. 277, 992 S.W. 2d 789 (1999). Public defender Jim Pedigo of Miller County represented Rushing as trial counsel and subsequently as appellate counsel. Pedigo now motions this court for attorney’s fees under Ark. Sup. Ct. R. 6-6 for his work on Rushing’s criminal appeal. Pedigo contends that he is entitled to attorney’s fees under Ark. Sup. Ct. R. 6-6 (c) despite his employment as a full-time public defender. Pedigo argues that his public-defender salary only compensated him for his trial work, not his appellate work. Fie takes the position that no prohibition exists to prevent his petitioning this court for attorney’s fees for appellate work done for indigent clients during non-office hours. In response, the State argues that Rule 6-6(c) applies only to appointed counsel not otherwise paid, and that Ark. R. App. P. — Crim. 16 requires all counsel to represent defendants through their direct appeal unless relieved. We agree with the State and deny Pedigo’s motion for attorney’s fees.
Facts
Pedigo has been a salaried, full-time public defender since January 1, 1998. Pedigo states in his brief that he prepared Rushing’s appeal in forty-four hours during weekends and evenings. He indicates that he did so because regular office hours were inadequate due to the heavy caseload in the 8th Judicial District public defender’s office. He also asserts the Director of the Public Defenders Commission told him that he was to obtain compensation for appellate work from the appellate court. He provides no evidence of this comment. He does attach to his motion a letter from Didi Sailings, Executive Director of the Public Defender Commission, in which Sailings tells Pedigo that he is responsible for representing his client at all stages of proceedings. Sailings also told Pedigo that it was Commission policy that public defenders not seek compensa tion from the appellate courts. He asserts that the public-defender statutes provide only for compensation for work done at the trial level. Therefore, he contends he is entitled to payment under Rule 6-6(c) for work on Rushing’s appeal.
Statutory Provisions
The Constitution of the United States and the Arkansas Constitution require appointment of counsel for indigent defendants in criminal cases. Gideon v. Wainwright, 372 U.S. 335 (1963); State v. Post, 311 Ark. 510, 845 S.W.2d 487 (1993). Arkansas has accomplished this by appointment of private counsel compensated with public funds and through full- or part-time public defenders. Mears, County Judge v. Hall, 263 Ark. 827, 569 S.W. 91 (1978). The legislature created the State’s current public-defender system with Act 1193 of 1993. This Act, which is codified in Ark. Code Ann. §§ 16-87-201- — 16-87-216 (Supp. 1999), governs Pedigo’s employment. Public-defender salaries, including Pedigo’s, are set by the Arkansas Public Defender Commission. Ark. Code Ann. § 16-87-107 (Repl. 1987). Public defenders are prohibited from receiving “any funds, services or other thing of monetary value, directly, or indirectly, for the representation of an indigent person pursuant to court appointment, except the compensation provided by law.” Ark. Code Ann. § 16-87-214. The legislature in its enactment of the appropriation of funds for the Public Defender Commission expressly subjected the Commission to the Regular Salary Procedures and Restrictions Act. See Act 1379 of 1999, § 1; Ark. Code Ann. §§ 19-4-1601 — 1615. As applied to a state-salaried public defender, this Act, in essence, prohibits the public defender from receiving compensation from the State in an amount greater than that established by the General Assembly as the maximum annual salary for the employee.
Supreme Court Rules
Ark. Sup. Ct. R. 6-6(c) states in pertinent part: “All motions for attorney’s fees from attorneys appointed to represent indigent appellants in criminal cases shall contain....” Rule 6-6(c), by its terms, applies to attorneys “appointed to represent indigent appellants in criminal cases....” While it might appear that this could include salaried public defenders appointed to represent indigent appellants, we hold it does not. When considered with the relevant public-defender statutes, it is evident that the reference to appointed counsel in Rule 6-6 (c) is to attorneys not otherwise compensated for their representation. In the instant case, the Miller County Circuit Court appointed Pedigo to represent defendant Rushing. At the time of his appointment and at all times since, Pedigo received compensation from the State of Arkansas as a full-time public defender. Once Pedigo undertook representation of Rushing as trial counsel, he was obligated to continue that representation “throughout any appeal to Arkansas Supreme Court, unless permitted by the trial court or the Arkansas Supreme Court to withdraw....” Ark. R. App. P. — Crim. 16. In that he remained a salaried, full-time public defender during the appeal, he is not entitled to receive any additional compensation from the State for his services.
Motion denied.
See Ark. Code. Ann § 16-87-306 listing duties of public defenders. This statute however, does not exempt public defenders from the requirements of Ark. R. App. P. -Crim. 16. | [
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ROBERT L. BROWN, Justice.
This case involves an allegation of a Freedom of Information Act (FOIA) violation by an inmate at the Women’s Unit of the Arkansas Department of Correction. The inmate, appellant Mary Lee Orsini, contends that the appellees who are officers of the Arkansas Department of Correction as well as the Department itself withheld information vital to her defense at a disciplinary proceeding. Orsini further contends that she was denied a hearing within seven days of her FOIA request, as required by Ark. Code Ann. § 25-19-107(b) (Repl. 1996). We agree that Orsini should have had her request heard by the trial court, and we reverse and remand for a hearing.
On April 11, 1997, Officer Bulah Hampton of the Department charged Orsini with two major disciplinaries — belligerence toward an officer and insolence. She stated in her report that she had beckoned Orsini to come to her, that Orsini had refused to come, that she then gave Orsini a direct order to come, and that Orsini answered that she did not have time for the officer’s “drama.” Orsini next slammed a door which, according to Officer Hampton, hurt her hand.
Officer Felicia Brothers witnessed part of the incident and gave a witness statement on April 16, 1997, in which she indicated that Officer Hampton may have intentionally aggravated Orsini. She referred in her witness statement to “005’s,” which are additional incident reports made by her and which apparently were made at 10:00 a.m. and 3:00 p.m. on the day of the confrontation, according to Orsini’s pleadings.
Orsini was disciplined as a result of Officer Hampton’s charge and had two weeks of privileges revoked. Orsini then began her quest to obtain copies of Officer Brothers’s 005 reports. She first made FOIA requests to Larry Norris, Director of the Department, and to Robert Clark, Internal Affairs/Disciplinary Administrator for the Department. On August 19, 1997, Administrator Clark denied her request and responded that the requested documents were in Orsini’s “institutional jacket and available for [her] review, upon request to the unit records supervisor.” Director Norris never replied. Orsini then made another request to L. Polk, the Records Supervisor. On September 8, 1997, Polk denied the request “due to disciplinaries, not a part of FOIA.”
This denial was followed by Orsini’s appeal to Jefferson County Circuit Court on September 18, 1997. In her appeal, Orsini requested the Brothers 005 reports and other documents used to affirm her disciplinary. She also requested the circuit court to hear her petition within seven days. On October 8, 1997, the Department responded to the appeal to circuit court and stated that Orsini already had the requested documents. On November 4, 1997, and then again on June 18, 1998, Orsini moved the circuit court to set her FOIA request down for a hearing. On July 22, 1998, the circuit court dismissed the Orsini appeal for failure to state a claim. The circuit court’s order of dismissal noted that “defendants have furnished plaintiff with the documents required....”
Orsini claims that she does not have the requested documents. She first contends that the circuit court violated the FOIA by failing to conduct a hearing on her request for public documents, as required by Ark. Code Ann. § 25-19-107(b) (Repl. 1996). Section 25-19-107(b) reads:
(b) Upon written application of the person denied the rights provided for in this chapter, or any interested party, it shall be mandatory upon the circuit court having jurisdiction to fix and assess a day the petition is to be heard within seven (7) days of the date of the application of the petitioner, and to hear and determine the case.
Whether § 25-19-107(b) requires that a hearing be set within seven days of the FOIA request or actually conducted within that time frame is not important to our decision because the circuit court did neither. Clearly, however, this section of the FOIA sets a policy in favor of expeditious hearings on all FOIA requests.
In the case of Furman v. Holloway, 312 Ark. 378, 849 S.W.2d 520 (1993), this court concluded that an inmate’s file met the definition of a “public record” under Ark. Code Ann. § 25-19-105(a) (Repl. 1996), because it was required to be kept by the director of the Department. See Ark. Code Ann. § 12-27-113(e) (Repl. 1999) and § 25-19-103(1) (Repl. 1996). Furthermore, there is no dispute that the Department is an agency of the state and that it denied Orsini’s FOIA request. See Ark. Code Ann. § 25-19-107(a) (Repl. 1996). Thus, it would appear that Orsini was entitled to a hearing, and none was set or held by the circuit court.
The Department does not address this procedural lapse in its brief. Its sole argument is that Orsini was not entitled to the Brothers 005 reports under Department Regulation 804 and Department Administrative Directive 93-14. This, of course, was not the basis upon which the circuit court dismissed Orsini’s appeal. The Department further contends that the regulation and directive were adopted pursuant to legislative authority, as set forth at Ark. Code Ann. § 12-27-113(e)(1) (Repl. 1999). Section 12-27-113(e)(1) reads:
(1) To protect the integrity of those records [inmate files] and to insure their proper use, it shall be unlawful to permit inspection of or disclose information contained in those records or to copy or issue a copy of all or part of any record to any person so committed except as authorized by administrative regulation or by order of a court of competent jurisdiction. The regulations shall provide for adequate standards of security and confidentiality of records.
We turn first to Regulation 804. This regulation was approved by the Department’s Board on February 17, 1994, and it is on file with the Arkansas Secretary of State. Regulation 804 reads in pertinent part:
1. An offender is entided to inspect his or her offender record pursuant to the Arkansas Freedom of Information Act and subject to the following limitations:
c. Documents of a sensitive or confidential nature and which would cause great harm to third persons if disclosed are exempt from disclosure;
Regulation 804 mentions Administrative Directive 93:14 as a “reference.”
Administrative Directive 93-14 appears to be a policy statement issued by the Department and not a regulation adopted by the Board. It states in part under Section III, F:
F. Exemptions by Inmate Record Organization:
The following is a list of specific forms and/or documentation that may be contained within inmate records and are determined to be exempted from disclosure under the FOIA, other Arkansas codes, and federal law. This serves only as a guide for inmate records while other exemptions may exist.
2. Confidential Reporting of Incidents (005’s)
The distinction between a Board’s regulation and an agency’s directive is an important one. Regulations adopted pursuant to legislative authority are considered to be part of the substantive law of this state. State v. Jones, 338 Ark. 781, 3 S.W.3d 675 (1999). Formally adopted regulations are registered with the Arkansas Secretary of State and are open to public inspection. Ark. Code Ann. § 25-15-204(d)(2) (Repl. 1996). Administrative Directive 93-14, however, has not been adopted by the Board and is not registered with the Secretary of State. Thus, it is not a regulation establishing an exemption as contemplated by § 12-27-113(e)(1). The result is that Administrative Directive 93-14 does not provide an automatic exemption from the FOIA for all 005 reports.
The remaining question then is whether Regulation 804 establishes an exemption for the documents requested. Our law with respect to FOIA exemptions has been often stated:
We liberally construe the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Sebastian County Chap. of the Am. Red Cross v. Weatherford, 311 Ark. 656, 846 S.W.2d 641 (1993); Bryant v. Mars, 309 Ark. 480, 830 S.W.2d 869 (1992). In conjunction with this rule of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. Byrne v. Eagle, 319 Ark. 587, 892 S.W.2d 487 (1995); McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). A statutory provision for nondisclosure must be specific. Ark. Code Ann. § 25-19-105(a) (Supp. 1993); Troutt Bros. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992). Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Troutt Bros. v. Emison, supra; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
Arkansas Dept. of Health v. Westark Christian Action Council, 322 Ark. 440, 443, 910 S.W.2d 199, 201 (1995). The burden of proving exemptions to the FOIA rests with the keeper of the requested records claiming the exemption. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
Regulation 804 allows inmates to inspect their files subject to certain procedures and so long as the documents are not “of a sensitive or confidential nature which would cause great harm to third persons if disclosed.” This regulation provides an exemption to the FOIA. The circuit court, though, disallowed Orsini’s appeal because it believed that she already had the information requested. According to the State’s brief on appeal, this apparently is not the case. Rather, as already noted, the State contends that the 005 reports were denied because they contained confidential and sensitive information and Administrative Directive 93-14 provided for a specific FOIA exemption.
We hold that a hearing is required under § 25-19-107(b) for the circuit court to determine whether the requested Brothers 005 reports as well as any of the other documents used to affirm the Orsini disciplinary qualify for exemption as sensitive or confidential information under Regulation 804. Such a determination on an exemption may be made by the court in camera. See Gannett River States Publ’g v. Ark. Indus. Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990).
Reversed and remanded.
It is not clear whether Officer Hampton charged Orsini with deliberately slamming the door. Her report reads: “My hand was on the door and the force with which the door was swung injured my hand. I do think this was a deliberate assault, just an infortunate [sic] accident. However, Inmate Orsini #2440 Belligerency/Blatant Display of Insolence wasn’t.” | [
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Ray Thornton, Justice.
Appellants, Bobby and Angie Ullom, appeal from the judgment of the Benton County Chancery Court terminating their parental rights to their three-year-old child, D.U. For reversal, appellants argue that the chancellor’s findings were not supported by clear and convincing evidence. In a three-to-three decision, the court of appeals affirmed the chancellor. We accepted review of this case and affirm the trial court.
Facts and Procedural History
Appellants are the parents of D.U. born August 1, 1996. On August 21, 1996, D.U. was taken to St. Mary’s Hospital. While at the hospital, it was determined that she had a spiral fracture of her left arm. Appellants could not explain how the accident occurred. Suspecting that D.U. had been abused, the hospital contacted appellee, the Arkansas Department of Human Services, who took the child into custody.
On September 3, 1996, a probable-cause hearing was held in the matter. At the probable-cause hearing, Michelle Murphy, an employee of the Department of Human Services testified that on the evening of August 21, 1996, she saw D.U. at the hospital and investigated the circumstances surrounding her injury. Ms. Murphy noted that appellants were unable to offer an explanation as to how the injury occurred and, according to the doctor, a three-week-old child is not mobile enough to sustain a spiral fracture on her own.
Bobby Ullom also testified at the hearing, stating that on August 20, 1996, he was at his parents’ home along with his wife and daughter. He noted that while they were there his eighteen-month-old nephew and nine-month-old niece were “constantly coming up [to D.U.] and kissing on her and pulling on her...” Mr. Ullom further testified that they left his parents’ home between 8:30 and 9:30 because D.U. was “fussy” and that his wife was up with D.U. all night but that they thought the baby had “gas.” He also stated that the next day when he got home from work his wife said D.U. had been “fussy” all day. When he went to pick her up he heard a “pop,” D.U.’s arm fell, and she began to scream. Finally, Mr. Ullom stated that he had no explanation for the child’s injury.
On September 17, 1996, an adjudication hearing was held. Angie Ullom testified that she did not know how D.U. was injured on August 21, 1996, but that she knew D.U. could not have caused the injury herself. Mrs. Ullom further testified that the only people that had contact with D.U. on that day were she and Mr. Ullom. Finally, she noted that the broken arm caused D.U. intense pain.
Bobby Ullom reiterated his previous testimony from the probable-cause hearing at this hearing. Mr. Ullom also stated that he had had trouble controlling his anger when he was growing up and that he was abused by his stepmother when he was younger. Finally, Mr. Ullom, once again, noted that he did not know how D.U. was injured.
The chancellor determined that the preponderance of the evidence showed that the child’s injury was caused by abuse and the child was found to be dependent-neglected. Appellee retained custody of D.U., and appellants were granted supervised visitation.
Appellants attended parenting classes, participated in counseling, and continued supervised visitation with D.U. pursuant to the case plan developed by appellee. After completing the appellee’s requirements, and pursuant to a court order following a review hearing, appellants were allowed to have unsupervised visitation at their home.
On February 8, 1997, at the initial unsupervised visit with appellants, D.U. was again injured, sustaining extensive bruising on and around her face. Appellants claimed that a toy had fallen on her face causing the injury. D.U. was taken to Bates Hospital by her foster mother.
On February 18, 1997, appellee filed a petition to terminate appellants’ parental rights. Appellee sought termination of appellants’ parental rights pursuant to Ark. Code Ann. § 9-27-341 (Repl. 1997) . Specifically, appellee alleged that:
(a) the parents of the juvenile have abandoned the juvenile, or have executed consent to termination of parental rights, subject to the court’s approval, or adoption of the juvenile or the juvenile court has found the juvenile victim dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, and which was perpetrated by the juvenile’s parent or parents.
(b) the minor child, D.U., has been adjudged to be a dependent-neglected child and currently resides in the care and custody of the Arkansas Department of Human Services pursuant to order of the Benton County Chancery Court, Juvenile Division.
(c) that, subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parent’s circumstances, which prevents return of the juvenile to the family home.
A termination hearing was held on May 16, 1997. Dr. Barry Allen, who treated D.U. on eleven occasions, testified that he was called to the hospital to examine D.U. in August of 1996. He also testified that according to the x-rays she had a spiral fracture, and noted that this type injury is usually caused by a “twisting motion.” Dr. Allen further stated that D.U. was most likely not injured by the actions of a eighteen-month-old child or a nine-month-old child and could not have injured herself to this degree. He questioned the explanation given by appellants, that she had been passed around by relatives the night before they brought her into the hospital and that when they picked her up the next day they heard a popping sound, noting that this was not consistent with a spiral fracture. Dr. Allen also testified that the leading cause of this type of injury in children under the age of three was abuse and that a spiral fracture would be an injury causing severe pain. Finally, he testified that his primary diagnosis was maltreatment syndrome.
Next, Dr. O.L. Henderson testified that causing a spiral fracture would require a great amount of force and that most fractures of this nature occur in children because someone has twisted the child’s arm. He stated that this type of injury could have caused either nerve or blood vessel damage, a loss of the limb, and a remote possibility of death.
Finally, Dr. Charles Akin testified that he had seen D.U. on February 8, 1997, when she was brought in to the emergency room at Bates Hospital for treatment of her second injury. He stated that when he treated D.U., she had “fresh bruising” around her left brow, around her left eye, the left side of the nose, and the cheek, as well as bruising on the right side of her face. Dr. Akin noted that the explanation given for the injury was that a toy had been dropped on the child’s face. He expressed his opinion, after examining the toy, that merely dropping the toy could not have caused the type of bruising suffered by D.U. Dr. Akin further noted that if the injury had occurred as explained by appellants the injuries would not have been to both sides of the face.
The termination hearing was concluded on January 2, 1998. Bobby Ullom once again testified at this hearing. However, his testimony regarding the cause of the August 21, 1996, injury changed. Specifically, he testified that when he went to get D.U. from her seat her arm became entrapped in the safety strap and he thought that this could have caused the injury.
On January 23, 1998, the chancellor entered an order terminating appellants’ parental rights. The chancellor found:
(1) that it [is] contrary to the child’s best interest and welfare to return her to the parental care and custody of Bobby Ullom and Angie Ullom, and further finds that the Department of Human Services has proven by clear and convincing evidence that the minor child was dependent-neglected as a result of unexplained abuse or neglect that could endanger the life of the child and was perpetrated by the juvenile’s parents;
(2) that the Department of Human Services has shown by clear and convincing evidence that subsequent to the filing of the original petition for dependency-neglect, other factors or issues arose which demonstrate that the return of the juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and that, despite the offer of appropriate family services, the parents have manifested the incapacity or indifference to remedy the subsequent issues or factors, or rehabilitate the parent’s circumstances, which prevents return of the child to the family home.
It is from this order that appellants appeal. They raise one point on appeal and we affirm the chancellor.
Termination of Appellants’ Parental Rights
Appellants contend that the findings supporting the chancellor’s order terminating their parental rights was not based on clear and convincing evidence. We have held that when the issue is one involving the termination of parental rights, there is a heavy-burden placed upon the party seeking to terminate the relationship. J.T. v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep’t of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding 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. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id.
Appellants argue that the termination was not proper because D.U., was not “out of the home” for more then twelve months as required in Ark. Code Ann. § 9-27-341. Because this argument was not presented to the chancellor at trial, we need not address its merits on review. See Burke v. Strange, 335 Ark. 328, 983 S.W.2d 389 (1998). However, we do note that D.U. was removed from the home on September 17, 1996, the petition for termination of appellants’ parental rights was filed on February 18, 1997, and the termination order was not entered until January 23, 1998. Accordingly, the child had clearly been out of the home for more than twelve months at the time the termination order was entered.
Appellants also argue that termination of parental rights was not appropriate because appellee failed to pursue meaningful efforts to rehabilitate their home. We cannot agree with appellants’ contention. Appellee devised a plan in September of 1996 for reunification of the family which was followed until the second injury occurred in February of 1997. Specifically, appellee provided appellants with counseling and parenting classes and appellants were allowed visitation with D.U. However, following appellants’ participation in the counseling and parenting classes, D.U. suffered a new injury at her initial unsupervised visit with appellants. It was at that time that appellee changed the goal of its plan from reunification to termination of appellants’ parental rights. We also note that on both occasions in which D.U. was injured appellants were the only people with the child and neither parent had a plausible explanation for her injuries. Thus, we find that there was clear and convincing evidence that appellee pursued meaningful efforts to rehabilitate the home and that appellants chose to ignore or failed to benefit from the services provided by appellee. Thus, we find no error and affirm the chancellor.
Next, appellants argue that the chancellor erred when he found that appellants manifested an incapacity or indifference to remedy the subsequent issues or factors that demonstrate that return of D.U. to the family home would be contrary to her health, safety, or welfare pursuant to Ark. Code Ann. § 9-27-341. Once again we cannot agree with appellants. The evidence shows that appellants’ actions demonstrated a pattern of abuse that is contrary to the health and safety of D.U. Specifically, as the medical evidence revealed, when D.U. was only twenty-one-days-old appellants caused her to suffer a spiral fracture and then, even after receiving family services provided by appellee, on the very next occasion in which they were alone with D.U. she suffered bruising to both sides of her face, injuries for which no satisfactory explanation was provided. The chancellor found that return of D.U. to the family home would be harmful to her health and safety and that appellants manifested an indifference to remedy the situation. Under these circumstances, we cannot say that the chancellor’s findings were not based upon clear and convincing evidence. Therefore, we affirm.
Finally, appellants contend that the chancellor’s findings were erroneous because it was not established by clear and convincing evidence that D.U.’s injuries endangered her life. The medical evidence established that the injuries suffered by D.U. were severe and very painful. Further, Dr. Henderson testified that the spiral fracture could have been life-threatening. Because we give great deference to the chancellor on witness credibility we must assume that the chancellor found D.U.’s injuries to be life-endangering. Accordingly, we affirm the chancellor’s findings.
Affirmed.
Smith, J., concurs.
See Ullom v. Arkansas Dep’t of Human Servs., 67 Ark. App. 77, 992 S.W.2d 813 (1999).
We note that this statute has been amended numerous times since the beginning of this case. Specifically, the statute was amended in the 1995 replacement volume, in the 1997 replacement volume, and once again in the 1999 replacement volume. However, we also note that the substance of the statute has not been amended but that changes have been made to the numbering of the statutory provisions. We have used the text of the 1997 replacement volume because that was the statutory language relied upon by the chancellor in this case. | [
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WH. “Dub” Arnold, Chief Justice.
This case presents an appeal from an interlocutory order of the Pulaski County Circuit Court granting appellee, Nora Harris, injunctive relief from appellants’ assessment and collection of any real property tax as a result of or based upon the 1996 reappraisal of the real property located within Pulaski County, Arkansas. Significantly, the Court of Appeals certified the case to this court as an issue of substantial public interest, solely to determine whether the circuit court erred by enjoining appellants’ continued tax assessment and collection. Accordingly, our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule l-2(d) (1999), and Ark. R. App. P. — Civ. 2(a)(6) (1999).
Notably, the parties urge us to consider related, substantive issues, including (1) whether the circuit court erred in finding that it has subject-matter jurisdiction over this action, and (2) whether Harris stated an illegal-exaction claim. However, we decline to reach issues not properly before us on appeal. Moreover, we reiterate that our appellate jurisdiction in this matter is confined to a review of the circuit court’s interlocutory order granting an injunction. See Ark. R. App. P. — Civ. 2(a)(6) (1999). In fact, the trial court stated that certain issues remain unresolved in this proceeding, including damages and class certification. Given that the issue before this court is whether the circuit court possessed the jurisdiction to grant an injunction, we hold that the circuit court erred and we reverse.
Background
Pursuant to its obligation to equalize real-property values in the county, the Pulaski County Board of Equalization held a special meeting in 1994 and approved a contract with an outside appraisal firm. The contract was executed by the county judge, the appraisals were performed, and reappraised values were placed on the tax rolls in 1996. Nora Harris, a property owner and taxpayer, appealed her reassessment to the Board of Equalization.
Subsequently, on August 14, 1996, Harris filed a complaint in the Pulaski County Court alleging that Pulaski County Judge Floyd Villines, III, and other county officials violated Arkansas statutory requirements and Pulaski County property owners’ federal due-process rights via the county-wide, real-property assessment. As a result, she sought a declaratory judgment and an injunction to prevent appellees from collecting any new taxes based upon the reappraised values. After hearing arguments, Special County Judge Russ Hunt concluded that the county court lacked the power to grant an injunction pursuant to Ark. Code Ann. section 14-14-1002(a), which permits the issuance of an injunction only in the absence of a chancellor from the county. However, he granted summary judgment in favor of Harris and found that appellants violated her due-process rights under the Fourteenth Amendment because they failed to follow the proper Arkansas statute. Importantly, appellants failed to appeal the county court’s March 21, 1997, order. Further, appellants continued to collect taxes based upon the reappraisal.
On April 1, 1997, Harris filed a new action in the Pulaski County Chancery Court and sought an injunction prohibiting the county from issuing tax statements and collecting taxes based on the reappraisals. Pursuant to Ark. Const, art. 7, § 15, and Ark. Code Ann. section 16-113-306, chancery courts have jurisdiction to grant injunctions against illegal or unauthorized taxes or assessments. Priest v. Polk, 322 Ark 673, 912 S.W.2d 902 (1995); Pockrus v. Bella Vista Village Property Owners Assn., 316 Ark. 468, 872 S.W.2d 416 (1994). Although the Pulaski County Chancery Court apparently had subject-matter jurisdiction over Harris’s claim, the parties transferred the action to circuit court.
At the Pulaski County Circuit Court, Harris again sought injunctive relief. She alleged that appellants’ continued tax collection constituted an illegal exaction and violated Pulaski County property owners’ constitutional rights. She also sought money damages. In response, appellants filed a motion to dismiss and argued that the circuit court lacked subject-matter jurisdiction over Harris’s claim. After reviewing the pleadings and counsels’ arguments, Special Circuit Judge John S. Patterson found that the circuit court had jurisdiction over Harris’s claim, which it deemed an illegal-exaction claim. Moreover, the circuit court concluded that it had the authority to issue an injunction in light of the county court’s final and unappealed order and appellants’ subsequent conduct. Reserving the issues of damages and class certification, the circuit court entered an interlocutory order on December 28, 1998, enjoining appellants’ assessment and collection of taxes based upon the 1996 reappraisal. From that order, comes the instant interlocutory appeal.
I. Interlocutory appeal
First, we consider the scope of the instant appeal. As a general rule, an appeal from an interlocutory decision brings up for review only the decision from which the appeal was taken, here, the granting of an injunction. See generally, 5 C.J.S. Appeal and Error § 738 (1993 & Supp. 1999). Conversely, an appellate court will not review another interlocutory decision from which no appeal was taken. Id. For example, where an appeal was certified to consider an interlocutory appeal from the dismissal of a counterclaim and third-party complaint, the court of appeals concluded that the defendant could not bring up for review unrelated issues pertaining to the primary suit that was still pending in the trial court. See Coleman’s Service Center, Inc. v. Southern Inns Management, Inc., 44 Ark. App. 45, 866 S.W.2d 427 (1993); see also Ark. R. Civ. P. 54(b). Specifically, the appellate court noted that when a trial court permits an interlocutory appeal on one issue, when other issues remain to be decided, the issues raised in the appeal must be reasonably related to the order appealed from. Significantly, the interlocutory appeal may not be used as a “vehicle to bring up for review matters which are still pending before the trial court.” Coleman’s, 44 Ark. App. at 49, 866 S.W.2d at 429.
The mere fact that a significant issue is involved, standing alone, is an insufficient basis for this court to accept jurisdiction of an interlocutory appeal. Scheland v. Chilldres, 313 Ark. 165, 167, 852 S.W.2d 791, 792 (1993). Here, Harris suggests that appellees’ conduct rises to the level of an “illegal exaction” in a manner never before considered by the court. She frankly requests that we extend existing law and find that a flaw in the assessment procedure can rise to an illegal exaction. Arguably, this is a significant issue. Nevertheless, we may not reach the merits of her argument. When an appeal reaches a court via an order granting a preliminary injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether the trial court exceeded its discretion in granting the injunction. Special Sch. Dist. v. Speer, 75 F.2d 420 (8th Cir. 1935). The sole question before the appellate court is whether the trial court “departed from the rules and principles of equity in making the order,” and not whether the appellate court would have made the order. Special Sch. Dist., 75 F.2d at 421-22.
Moreover, when the trial court’s subject-matter jurisdiction is essential to an action, the trial court’s ruling that it has proper jurisdiction does not render that order appealable, even if that ruling is erroneous. Signa Ins. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988). In such a case, this court retains the independent duty to raise the issue of our own jurisdiction because a final order is a jurisdictional requisite for this court to act. Id.; see also Mueller v. Killam, 295 Ark. 270, 748 S.W.2d 141 (1988). Despite the lack of final order, however, we may exercise our appellate jurisdiction over “an interlocutory order by which an injunction is granted,” pursuant to Ark. R. App. P. — Civ. 2(a)(6). The rule providing for appeals from injunctions is an exception to the general rule that appeals may be taken only from a “final judgment or decree.” See Ark. R. App. P. — Civ 2(a)(1).
Here, we have a distinct basis and specific authority to hear the appeal from an injunction, and the extent of our review is dependent on the decision appealed from. Although we may regret our lack of ability to give a trial court sufficient guidance on remand so that it might avoid error, we cannot precipitately prevent such error by preempting the trial court’s action. We have long held that our role, for better or worse, is to decline to issue advisory opinions. See Seeco, Inc. v. Hales, 330 Ark. 402, 414, 954 S.W.2d 234, 241 (1997). We are limited to a review of the record before us.
In light of our jurisdictional grounds, we decline to reach the following issues: (1) whether the circuit court erred in finding that it has subject-matter jurisdiction over this action, (2) whether Harris stated an illegal-exaction claim, (3) whether the circuit court erred in finding that appellant’s attempts to relitigate the merits of the County-court order are barred by res judicata, (4) any issues relating to summary judgment, (5) any issues relating to the, as yet, unawarded damages, and (6) any issues concerning the motion for class certification. However, we are aware that at the conclusion of the instant litigation, marked by the entry of a final order, these issues may be ripe for appeal. Accordingly, while these issues are beyond the scope of this interlocutory appeal, nothing in this opinion shall be construed as a bar to a subsequent appeal of any or all of these issues.
II. Injunctive relief
Next, we consider the circuit court’s finding that it had the authority to grant appellee injunctive relief. In support of affirming the decision, appellee cites the county court’s inability to grant her an injunction. Specifically, appellee posits that the presence of circuit-court authority derives from the absence of county-court authority. This argument amounts to a logical fallacy in reasoning. It also fails to account for the fact that the chancery court had the authority to grant her an injunction. Alternatively, appellee maintains that because jurisdiction over injunctions has not been given exclusively to courts of equity, a circuit court may have the power to issue an injunction in a case properly before it when ancillary to its jurisdiction or as necessary to grant complete relief. See Arkansas State Medical Bd. v. Leipzig, 299 Ark.71, 770 S.W.2d 661 (1989); Daley v. Digby, 272 Ark. 27, 613 S.W.2d 589 (1981); and Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985).
On the other hand, appellants argue that the circuit court was wholly without authority to issue an injunction. We agree. In the early case of Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920), we held that the creation of our chancery courts left no vestige of equity jurisdiction in the circuit courts. Injunctions are historically equitable and fall within the exclusive jurisdiction of chancery court. Id. Accordingly, we reverse that portion of the circuit court’s order enjoining appellants from collecting any tax based on the 1996 county-wide reappraisal.
Special Justice MARTHA MILLER HARRIMAN and Special Justice W. Kelvin Wyrick join.
Special Justice KENNETH R. REEVES and Special Justice HOWARD W. Brill concur.
Special Justice Richard A. Lusby and Special Justice James E. BAINE concur in part and dissent in part.
In the absence of a complete evidentiary record, we remain bewildered by appellees’ conduct. Their initial failure to comply with the statutory procedures, coupled with their subsequent conduct, (failing to appeal, and then ignoring the final and binding county-court order), creates a disturbing picture. Nevertheless, we are wholly without jurisdiction to instruct the circuit court how it should proceed on the pending damages issue.
The structure of appellee’s argument takes the form of a “conditional syllogism”:
A cannot grant an injunction
B is not A;
therefore, B can grant an injunction.
Although some forms of conditional syllogisms may yield a valid argument (e.g., the modus ponens, and the modus tollens), the instant form reaches an invalid conclusion by denying the antecedent. Notably, the fallacy of “denying the antecedent” fails to account for other possibilities, here, that C can grant an injunction. For a thorough discussion of this and other logical fallacies in the context of reasoning in the law, see Andrew Jay McClurg, Logical Fallacies and the Supreme Court: A Critical Examination of Justice Rehnquist’s Decisions in Criminal Procedure Cases, 59 U. Colo. L. Rev. 741, 774-75 (1988).
Unfortunately, and inexplicably, the parties agreed to transfer the action from chancery to circuit court. From the limited record before us, it appears that the action could and should have remained in chancery court where that court could have granted an injunction and awarded damages pursuant to the clean-up doctrine.
Since Monette, only three Arkansas cases have sanctioned a circuit court granting injunctive relief. See Arkansas state Medical Bd. v. Leipzig, 299 Ark. 71, 770 S.W.2d 661 (1989); Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981); and Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985). Notably, the majority opinions is Leipzig, Daley, and Pinckney fail to cite Monette or to explain why the longstanding constitutional rationale of Monette was inapplicable. Moreover, in his concurring opinion in Cummings v. Fingers, 296 Ark. 276, 281-82, 753 S.W.2d 865, 868 (1988), Justice Newbern observed that in Daley, the authority of a circuit court to grant an injunction was not even an issue on appeal. See Cummings, 296 Ark. at 281-82, 753 S/W2d at 868 (Newbern, J., concurring). Therefore, the court’s acquiescence to the circuit court’s action resulted not from a deliberation on the merits but from the scope of the appeal. | [
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Per Curiam.
On February 17, 2000, attorney Mark W Dossett filed an affidavit on behalf of the appellees in support of attorney’s fees and costs incurred by virtue of appellants’ motion for rule on clerk. This affidavit was filed in response to this court’s per curiam opinion dated February 10, 2000, wherein we found that the appellants had violated Rule 11 of the Arkansas Rules of Appellate Procedure — Civil, and that the appellees were entitled to costs and attorney’s fees. Mr. Dossett shows this court that he spent 5.40 hours on this matter and incurred costs of $33.60. We award the appellees attorney’s fees at a rate of $75 per hour for total fees of $405. The appellants are directed to pay the appellees $438.60 as attorney’s fees and costs forthwith. | [
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RAY THORNTON, Justice.
Appellee and his father purchased a vehicle in 1988. In addition to the vehicle, the parties purchased credit-life insurance from appellant so that in the event of death, the debt on the car would be discharged. In 1991, appellee’s father died and the vehicle was later repossessed and sold. Following the trial, a deficiency judgment was entered against appellee. Appellee then filed a third-party complaint against appellant seeking payment pursuant to the credit-life insurance policy. We conclude that the trial court abused its discretion when it allowed appellee to file a third-party complaint after judgment had been entered in the underlying suit and erred when it denied appellant’s motion to strike appellee’s third-party complaint.
On December 16, 1988, appellee, Randy Tomerlin and his father, Hugh Tomerlin, purchased a 1989 Ford truck from Ryburn Motor Company in Monticello. The truck was financed by Ford Motor Credit Company in the names of “Hugh Tomerlin or Randy Tomerlin as buyers.” The purchase was recorded on a standardized Arkansas “vehicle retail installment contract.” The Tomerlins also purchased credit-life and credit-disability insurance on the truck. On the retail installment contract, Hugh Tomerlin was listed as the proposed insured, and the contract was signed by both Randy and Hugh Tomerlin. Appellant, Arkansas Bankers Life Insurance Company, issued a policy for credit-life and credit-disability on the purchase, naming Randy Tomerlin as the insured.
On August 18, 1991, Hugh Tomerlin died. Appellee did not make a claim with appellant at that time. On October 6, 1994, Ford Motor Credit Company (Ford) filed a complaint against appellee, who had defaulted on his payments on the vehicle. Ford alleged that the vehicle had been repossessed, sold pursuant to the Uniform Commercial Code, and that appellee owed a deficiency of $ 4,717.31. During the pendency of the litigation, appellee did not seek recovery from appellant. A trial was held on the matter and on July 7, 1995, a judgment was entered against appellee.
On September 12, 1995, appellee filed a motion seeking permission to file a third-party complaint against appellant. Appellee’s motion was granted and the third-party complaint was filed against appellant. The complaint alleged that appellant had issued a credit-life policy on Hugh Tomerlin and that appellee was entitled to judgment against appellant pursuant to the requirements of the credit-life policy. Appellant filed an answer to the third-party complaint and a motion to dismiss. On October 2, 1996, appellant filed a motion to strike the third-party complaint. The trial court found that appellant had waived the issues presented in its motion to strike appellee’s complaint by not filing the motion in a timely fashion.
On April 9, 1998, appellant filed a motion for summary judgment. Appellee responded to appellant’s motion and sought summary judgment on several other issues. The trial court found that there were genuine issues of material fact that needed to be determined in the case and denied both motions for summary judgment.
A trial was held, and the jury returned a verdict for appellee in the amount of $5,560.97. The trial court also awarded appellee $189.50 in costs, a twelve percent penalty of $676.32, and $10,000 in attorney’s fees. Appellees’s total judgment was $16, 417.79. It was from that judgment that appellant appealed to the Arkansas Court of Appeals that affirmed the trial court in a nonpublished opinion that was handed down on December 1, 1999. On appeal to this court, appellant raises five points on appeal. Finding merit in the first point, we reverse.
Appellant contends that the trial court erred in failing to strike appellee’s third-party complaint as its first point on appeal. Specifically, appellant argues that appellee should not have been allowed to file a third-party complaint against appellant after judgment had been entered against appellee in the underlying suit and that the trial court erred when it denied appellant’s motion to strike the third-party complaint. In our evaluation of this issue, we must consider Ark. R. Civ. P. 14, which states:
(a) At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be hable to him for all or part of the plaintiff’s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third party complaint not later than ten days after he files his answer. Otherwise, he must obtain leave on motion upon notice to all parties to the action. The person served with the summons and the third-party complaint, hereinafter called the third-party defendant, shall make his defenses to the third-party plaintiff’s claim as provided in Rule 12 and his counterclaims against the third-party plaintiff and cross-claims against other third-party defendants as provided in Rule 13. The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff’s claim. The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The plaintiff may assert any claim against the third-party defendant arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff and the third-party defendant shall thereupon assert his defenses as provided in Rule 12 and his counterclaims and cross-claims as provided in Rule 13. Any party may move to strike the third party claim or for its severance or separate trial. A third- party defendant may proceed under this rule against any person not a party to the action who is or may be liable to him for all or part of the claim made in the action against the third-party defendant.
Ark. R. Civ. P. 14. We have explained that the purpose of the rule is to settle all controversies at one time, thereby avoiding multiplicity of suits. See Farm Bureau Mutual Ins. Co. v. Riverside Marine Remanufacturing, Inc., 278 Ark. 585, 647 S.W.2d 462 (1983). We also note that in his book on the Arkansas Rules of Civil Procedure, David Newbern states that “permission to file a third party complaint may properly be denied if it is unnecessarily late and would cause a delay in a scheduled trial.” David Newbern, Arkansas Civil Practice and Procedure, § 14-1 (2d ed. 1993). Additionally, Newbern states that “if the third party claim is inappropriate, whether because of the delay it will cause or other prejudice which might result, it may be stricken or severed for separate trial.” Id.
In Aclin Ford Co. v. Fiat Motors of North America, Inc., 275 Ark. 445, 631 S.W.2d 283 (1982), a case very similar to the case on appeal, we were asked to determine whether a trial court erred by granting a motion to strike a third-party complaint. In Aclin, a plaintiff brought a breach of warranty action against Aclin Ford Company, Inc. and Fiat Motors of North America, Inc., involving the purchase of a Fiat automobile. Id. Fiat was dismissed from the suit prior to the trial. Aclin then orally requested permission to file a third-party complaint against Fiat which was denied. The trial resulted in judgment for the plaintiff and Aclin requested a new trial. In its motion for a new trial, Aclin again requested that it be allowed to file a third-party complaint against Fiat. Aclin’s motion to file the third-party complaint was granted. Id. However, the trial court thereafter granted Fiat’s motion to strike Aclin’s third-party complaint finding that it was untimely filed. Affirming the trial court, we held that
implicit in Rule 14 is the assumption that the third party complaint will be filed before the issues are resolved at trial; otherwise, its provisions allowing the third party defendant to assert defenses against the original plaintiff would have no meaning. Therefore, the trial court was correct in granting Fiat’s motion to strike the third party complaint since it was filed after trial.
Id.
The facts in the present case are not distinguishable from the facts in Aclin. Here, Ford filed suit against appellee and recovered judgment. Thereafter, appellee requested and was granted permission to file a third-party complaint against appellant and the trial court denied appellant’s motion to strike appellee’s third-party complaint. Based on Aclin, we conclude that permitting the third-party complaint to be filed after the entry of the judgment in the underlying suit was error and requires that the ruling be reversed.
Because the initial erroneous ruling led to the other issues on appeal, it is not necessary for us to address the remaining points on appeal.
Reversed. | [
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Ray Thornton, Justice.
Appellant, Union Planters National Bank, brings this appeal seeking review of the chancery court’s determination to appoint a receiver at the request of appellee to oversee the dissolution and liquidation of its not-for-profit corporation on the grounds of insolvency, urging that the chancellor was without subject-matter jurisdiction over the proceeding in the absence of a base or ancillary proceeding, and that the appointment of a receiver was improper. Because we conclude that Rule 66 of the Arkansas Rules of Civil Procedure and our prior case law on the subject support the chancellor’s decision to appoint a receiver, we affirm.
Appellee, the East Central Arkansas Economic Development Corporation, filed a petition for dissolution and liquidation in the chancery court of St. Francis County on February 13, 1998, alleging that its board of directors had voted to dissolve the corporation due to insolvency. The corporation was allegedly the subject of lawsuits and other claims against which it could not defend or satisfy judgments, and asserted that in order to avoid multiplicity of lawsuits or preferential treatment of creditors, the court should take jurisdiction of the winding up of the affairs of the corporation by appointing a receiver. A receiver was appointed on June 16, 1998, and a warning order notice to creditors to appear and enter their claims was issued by the receiver.
Appellant filed a Motion for Leave to Intervene, alleging that it had been granted judgment against appellee and that the judgment remained unsatisfied, and requesting intervention in the dissolution proceedings. Contemporaneously appellant filed a motion to dismiss, specifically contending that the allegations of the petition filed by appellee for dissolution and liquidation failed to give rise to authority for the appointment of a receiver, and that such appointment in the absence of a base proceeding before the chancery court was improper and should be set aside. In response, appellee pointed out that it was formed by the filing of documents well prior to the adoption of the Arkansas Non-Profit Corporation Act of 1993, and because the prior law did not provide for a procedure for approval of extraordinary transactions involving voluntary dissolution of a nonprofit corporation, appellee turned to the chancery court specifically for guidance in requesting supervision of the dissolution.
The chancery court granted appellee’s motion to establish a receivership and denied appellant’s Motion to Dismiss, finding that the appointment of a receiver was proper and within the jurisdiction of the trial court in order to protect the remaining assets of appellee, to continue operation of certain remaining business ventures, and to garner and assemble assets of the corporation for the equitable treatment of creditors. “The only reasonable means by which to ensure that all creditors and claimants are protected during the dissolution of East Central,” wrote the chancery court, “is ... to appoint a receiver. Therefore, it is this court’s opinion that a receiver is necessary and proper....”
Rule 66 of the Arkansas Rules of Civil Procedure provides that: “Courts of equity may appoint receivers for any lawful purpose when such appointment shall be deemed necessary and proper,” and under our standard of review we must determine whether the appointment of a receiver was an abuse of discretion. The appointment of receivers rests within the discretion of courts of equity, to be exercised with restraint and caution, and ordinarily in conjunction with a pending proceeding, and rarely as a means in itself, but whenever unusual circumstances warrant. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985) (cited in Boeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995)). Trial courts are ordinarily permitted to exercise that power with considerable discretion in determining whether, under particular circumstances, a receivership is reasonably required. The power to appoint a receiver is, of course, a harsh and dangerous one, and should be exercised with great circumspection. Chapin, supra (citing Kory v. Less, 180 Ark. 342, 22 S.W.2d 25 (1929)). The cases in which receivers ordinarily will be appointed are confined to those in which it can be established to the satisfaction of a court that the appointment of a receiver is necessary to save the property from injury or threatened loss or destruction. Id. As we noted in Boeckmann, supra, in reviewing such a decision, it is necessary to include a review of the underlying issues which form the basis for the appointment of the receiver. Id. Based upon our review of the facts presented to the chancellor, we cannot agree with appellant’s contention that the trial court abused its discretion in appointing a receiver to discharge the duties necessary to dissolution of the corporation.
Each side has taken issue with the specific meaning of the chancellor’s order with regard to the necessity for a base proceeding, with appellant contending that the chancellor erred in looking to concluded litigation between the parties as a base proceeding, and appellee arguing that the chancellor found a base proceeding in the writ of execution and garnishment filed by appellant against appellee, amounting to an affirmative action by which appellant initiated the base proceeding relevant to this receivership petition. However, based on our prior holding in Chapin, supra, and later affirmed in Boeckmann, supra, we find it unnecessary to address the question whether there was an ancillary proceeding. Like the case before us, in Chapin the appellant contended that the appointment of a receiver was the only relief sought by appellee and was not an appropriate action because it was not ancillary to any other proceeding then pending. Id. As we noted in Chapin, we take no exception to the basic principle that receivership is not an end unto itself, but is generally ancillary to some proceeding over which the court has jurisdiction. However, this broad statement of the law is “neither categorically nor invariably so,” nor is it to be “rigidly applied.” Id. The appointment of receivers comes within the extraordinary powers of a court of equity, and our only concern should be whether the appointment constituted an abuse of discretion. Here, as in Chapin, the trial court determined that under the unusual situation presented in this case, a receiver was needed to manage and protect the assets of an insolvent nonprofit corporation beset by numerous creditors and a judgment-seeking class action. Id. We agree with that determination.
We note further that our case law and interpretation of the provisions of Rule 66 is in accord with the most recent expression of legislative intent by our General Assembly. The relatively new enactment of the Arkansas Non-Profit Corporation Act of 1993 specifically provides that a chancery court may dissolve such a corporation in a proceeding by the corporation to have its voluntary dissolution conducted under court supervision. Ark. Code Ann. § 4-33-1430 (Repl. 1996). We conclude that the chancellor’s actions not only fall well within this court’s own rules and case law, but also reflect the public-policy considerations articulated by later statutory instruction. We therefore hold that the chancellor did not abuse his discretion in determining that the appointment of a receiver was appropriate, and accordingly, we affirm.
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PER Curiam.
Carolyn Arnett, by her attorney, has filed a motion for rule on the clerk.
Her attorney, Herbert T. Wright, Jr., admits in his motion that the record was tendered late due to a mistake on his part.
We find that an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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Hart, J.,
(after -stating the facts). By the terms of the contract ‘the building was to be -completed September 1, 1910. As a matter of fact, it was not completed until some time in February, 1911. No notice of the failure of the contractor to complete the building within the designated time was given by the owner to the -surety within ten days as required by the contract. The defense of the surety company rests mainly up-on this failure to give notice.
It is not claimed that the surety in fact -assented to the extension of time, but it is -claimed that it will be deemed to have assented thereto by the terms o-f the contract itself Which, it is said, contemplates that additional time for the completion of the building might be granted.
Counsel bases this -contention on that clause of the contract which provides for the completion of the building by the first day of September, 1910, under penalty for delay of ten dollars per day. They contend that the contract ‘definitely contemplated that it might be necessary to extend the time -and that the -surety company must be held to have contemplated it also. In support of their contention they cite Graham and the Title Guaranty & Surety Co. v. United States, 231 U. S. 474, and United States v. McMullen and Other Administrators, 222 U. S. 460. We do not think either of these oases sustain the position assumed by counsel.
The contract in the McMullen case provided that no extension of time wais to be granted except upon the authority -of the Secretary o-f the Navy in -accordance with the terms of the contract; land the secretary granted an -extension.
In the Graham case the bond in terms contemplated -an extension of time and the contract provided for a waiver of the time limit.
Here the facts .are essentially different. There was ■no provision in the contract which contemplated an extension of the time. If the payment of ten dollars per day as provided in the contract for each day of delay be construed as a .penalty, as was done in the case of Wait v. Stanton, 104 Ark. 9, it is unenforceable and has no binding force whatever; on the other hand, if it be construed as liquidated damages it simply has the effect of the parties contracting in advance what the damages for a breach ■of the contract shall :be. It does not have the effect of providing for .an extension of tóme. It only fixed the measure of damages in the event the contractor committed a breach of the contract and was not justified in so doing.
When the contractor failed to complete the building by the first of September, 1910, he committed a breach of the contract; and, under the express terms of the contract, in order to hold the surety company liable it was the duty of the owner to give written notice within ten days thereafter. The object of giving this notice, <ais shown by the contract itself, was to enable the surety company, seasonably, to take such practical action as might minimize its loss by reason of the contractor’s default.
We are of the opinion that the contractor committed a breach of the contract when he failed to complete the building on the first day of September, 1910, and that this ■failure constituted a default within the meaning of that word as used in the contract. It was, therefore, the duty pf the owner of the building to notify the surety company of this default if he wished to. hold the surety company liable for the breach of the contract. This the owner failed to do.
There is no testimony in 'the record tending to show that the surety .company waived the giving of this notice to it; neither is there anything in the record to show that the surety company assented to the extension of the time for the completion of the building or that the failure of the contractor to finish the work on time was justified or excused ‘by the conduct of the owner.
It follows that the decree will he'reversed and the canse remanded with directions to the chancellor to dismiss the complaint for want of equity. | [
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111,
20,
-127,
69,
-100,
71,
104,
30,
-104,
-75,
17,
-8,
80,
-90,
-58,
118,
67,
11,
8,
34,
99,
0,
-24,
-3,
-4,
-68,
54,
-34,
-113,
-89,
-121,
72,
43,
101,
-74,
-99,
56,
20,
-124,
126,
-26,
21,
95,
108,
11,
-53,
-14,
-93,
95,
118,
-98,
-123,
-17,
17,
57,
96,
-52,
-90,
94,
98,
59,
-101,
-113,
-23
] |
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