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Per Curiam.
On February 1, 1984, we affirmed the trial court’s judgment in the above styled case. On October 4, 1984, appellant’s court-appointed attorney filed a motion for attorney’s fee.
In Cristee v. State, 4 Ark. App. 33, 627 S.W.2d 34 (1982), we said that motions for attorney’s fees in these cases should be filed in this court in time for them to be considered at the time the case is considered on its merits. Two years later, in Stefanovich v. State, 10 Ark. App. 233, 662 S.W.2d 476 (1984), we called attention to Cristee and pointed out that failure to file the motion in time for it to be considered at the time the case is considered on its merits could prevent the allowance of an attorney’s fee.
We allowed a fee in both of those cases, but the motions were filed within three months of the case decision and in the same fiscal year. Here, eight months have elapsed and on July 1, 1984, a new fiscal year intervened.
Our power to allow the fee at this late date is suspect; moreover, we do not think one should be allowed under the circumstances.
Motion denied.
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Tom Glaze, Judge.
This workers’ compensation appeal results from the Commission’s refusal to enforce a joint petition settlement agreement, because the claimant died before a hearing was conducted on the joint petition. A review of the procedure by which this appeal has evolved is necessary to a clear understanding of our disposition of the case.
The claimant, Polly Odom, now deceased, suffered a compensable back injury when she fell on some stairs at work on September 5, 1978. She continued her job as an accounting clerk until October 20, 1978, when she became unable to work because of pain. She attempted to return to work on February 19,1979, but the company fired her at that time, discontinued her salary on February 28, 1979, and stopped paying for her therapy in March of 1979. A hearing was conducted before an administrative law judge on November 14, 1979. Appellees admitted that claimant was entitled to 10% permanent partial disability, but through an oversight, appellees paid nothing until after a decision was rendered in a second hearing conducted on July 16, 1981. The law judge filed his opinion on March 11, 1982. He set claimant’s permanent partial disability at 35% to the body as a whole. He also found controversion of all benefits in excess of 10% to the body as a whole. On May 19,1982, the appellees paid the claimant $3,937.50, representing 10% permanent partial disability benefits that had not been paid because of an “in-house oversight.” On June 23, 1982, on appeal and cross-appeal, the Commission affirmed the decision of the administrative law judge except on the controversion issue. The Commission found the record inadequate to determine whether the initial 10% permanent partial disability had been con trovertéd and, if so, which one of the claiman t’s two attorneys was entitled to the fee. The Commission said:
, [I]f the parties themselves have not resolved these two issues by negotiation and agreement when this decision has become final, these two questions will have to be presented to the Administrative Law Judge for appropriate evidentiary development and decision. It will be the responsibility of the parties to request such a hearing before the Administrative Law Judge.
The appellant appealed and the appellees cross-appealed the Commission’s decision to this Court. While the appeal was pending, appellant filed a motion to remand to the Commission for the parties to enter a joint petition. We granted the motion to remand on December 2, 1982. A hearing on the joint petition was scheduled for December 15, 1982. On December 9, 1982, the claimant died from a condition unrelated to her compensable injury.
A hearing was held before an administrative law judge on March 1, 1983, to determine whether the joint petition settlement should be approved. Henry Odom, husband of Polly Odom, appeared as administrator of her estate. The law judge determined that, under § 19(1) of the Workers’ Compensation Act, an agreement for settlement between the parties has no effect on the parties’ rights until a hearing is conducted by the Commission. Ark. Stat. Ann. § 81-1319(1) (Repl. 1976). Therefore, the law judge denied the joint petition, not on substantive, but on procedural grounds. The Commission affirmed and adopted the decision of the law judge. On this appeal, appellant claims the Com mission erred in not approving and enforcing the joint petition settlement. Appellant asks this Court to enforce the settlement agreement or, in the alternative, to decide the original appeal on its merits.
In support of the contention that the Commission should have approved the joint petition settlement, appellant cites a number of cases to illustrate that the policy of the law is to favor, to encourage, and to enforce compromise settlements. See, e.g., St. Paul Fire and Marine Insurance Co. v. Wood, 242 Ark. 879, 416 S.W.2d 322 (1967); Squires v. Beaumont, 233 Ark. 489, 345 S.W.2d 465 (1961); and Jacobs v. American Bank and Trust Co., 175 Ark. 507, 299 S.W. 749 (1927). However, the cases cited by appellant do not deal with the joint petition procedure required under the workers’ compensation laws. St. Paul Fire and Marine Co. v. Wood dealt with a tort claim and subrogation under § 81-1340 (Repl. 1960); Squires v. Beaumont involved a lawsuit for damages between two business associates over a construction project in which they were involved; and Jacobs v. American Bank and Trust Company concerned an unlawful detainer action; the “settlement” was between the assignee of the mortgagee and the mortgagor.
Although the court in each of the foregoing cases stated that the law favors compromise settlements, that general rule does not apply to joint petition settlements. Section 81-1319(1) provides:
(1) Joint petition. Upon petition filed by the employer or carrier and the injured employee, requesting that a final settlement be had between the parties, the Commission shall hear the petition and take such testimony and make such investigations as may be necessary to determine whether a final settlement should be had. If the Commission decides it is for the best interests of the claimant that a final award be made, it may order such an award that shall be final as to the rights of all parties to said petition, and thereafter the Commission shall not have jurisdiction over any claim for the same injury or any results arising from same. If the Commission shall deny the petition, such denial shall be without prejudice to either party. No appeal shall lie from an order or award allowing or denying a joint petition.
The Commission’s own Rule 19 provides, in part, as follows:
The Commission discourages the use of the Joint Petition as a means of settling cases except in unusual circumstances.
Rule 19, Arkansas Workers’ Compensation Law and Rules of the Commission (1982).
In Jacob Hartz Seed Co. v. Thomas, 253 Ark. 176, 485 S.W.2d 200 (1972), the Court said about joint petition settlements:
The necessity for extreme caution in approving such settlements so clearly recognized by the commission’s procedural rule lies in the fact that any award based thereon finally concludes all rights of the parties, even foreclosing any right of appeal from the order of approval. This is the only procedure under our act which leaves the claimant without any further remedy, regardless of subsequent developments.
Id. at 179, 485 S.W.2d at 202.
We cannot agree with appellant’s arguments that this joint petition settlement should be enforced as any other contract of settlement with the administrator serving as a substitute for the deceased claimant. Nor can we agree that the actual hearing required by our statute is purely administrative and does not affect the rights of the parties. The Commission’s Rule 19, quoted in part above, provides further:
No Joint Petition will be approved unless such Petition sets forth the nature of the unusual circumstances and unless such unusual circumstances are proved at a hearing.
It shall be necessary for the claimant to appear and testify at a Joint Petition hearing. Petitions shall be signed by all parties, including the claimant, and must be verified.
Under certain circumstances, the Commission may designate or direct the parties to take claimant’s testimony by deposition or interrogatories.
Rule 19, Arkansas Workers’ Compensation Laws and Rules of the Commission (1982).
In Georgia-Pacific Corp. v. Norsworthy, 244 Ark. 399, 425 S.W.2d 320 (1968), the Court affirmed the Commission in finding that a settlement agreement was not final within the meaning of section 19. In that case, the employer and the claimant reached an agreement they referred to as a “final settlement.” On the basis of letters to the Commission from the parties’ attorneys, the Commission cancelled a scheduled hearing and entered an order incorporating the parties’ agreed-upon terms of payment. When a claim was filed for payment of medical services outside the scope of the settlement, Georgia-Pacific refused to pay. The Court quoted the Commission’s Rule 19 and found that Georgia-Pacific had made no attempt to comply with the rule. Therefore, the Court said, the Commission was justified in finding that its own order was not a final settlement within the meaning of the joint petition provision.
What the appellant asks us to do in this case would require that we ignore the Commission’s own procedures and the prior Arkansas cases on joint petitions. Because the precise facts at bar have not been presented previously to us, we have examined cases from other jurisdictions. See, e.g., Rogers v. Concrete Sciences, Inc., 394 So.2d 212 (Fla. Dist. Ct. App. 1981); Denton v. United States Fidelity & Guaranty Co., 158 Ga. App. 849, 282 S.E.2d 350 (1981); Barncord v. State Department of Transportation, 4 Kan. App. 2d 368, 606 P.2d 501, aff’d, 228 Kan. 289, 613 P.2d 670 (1980); Pepitone v. State Farm Mutual Insurance Co., 346 So.2d 266 (La. Ct. App. 1977); Sherlin v. Liberty Mutual Insurance Co., 584 S.W.2d 455 (Tenn. 1979). In each of these cases, the claimant died between the time a settlement agreement was reached and the time of approval by the Commission — or the equivalent of our Commission — in each state.
In Barncord v. Department of Transportation, the claimant died on the day that a proposed oral settlement was to be presented to the Director of Workmen’s Compensation Fund as the Kansas statute required. The Kansas Court of Appeals rejected the contention of the claimant’s widow and children that the approval of a settlement agreement under Kansas law was merely a procedural formality. The Court quoted Larson as follows:
If the statute requires that a settlement have Commission approval, a settlement lacking such approval amounts to nothing more than a voluntary payment of compensation.. . . [I]t does not give rise to an “award. ...”
Barncord, 606 P.2d at 505 quoting 3 Larson, Workmen’s Compensation Law § 82.60 (1976). The Kansas Court concluded that the negotiated amount was not due the claimant at the date of his death because the settlement had not yet been presented to the director in a form recognized by statute.
The Supreme Court of Tennessee also considered the precise question before our Court under similar facts in Sherlin v. Liberty Mutual Insurance Company. The parties’ attorneys reached a written agreement that, in Tennessee, was subject to approval by a judge of chancery, circuit, or criminal court. The claimant died of a nonwork-related gunshot wound before that approval was attained. In deciding whether or not the decedent’s claim survived his death, the Court analogized that unaccrued disability benefits do not survive a claimant’s death and become payable to his personal representative. The Court pointed out the rationale for such a rule:
[I]t is the purpose of workmen’s compensation acts to make industry take care of its casualties. To that end compensation is provided for injured workmen in lieu of wages. Wages cease with death, and likewise compensation received in lieu of wages must cease with death. If the employee dies from natural causes, his representatives have no claim against the employer. If the death results from injuries received in the industry, there are special provisions to take care of the employee’s dependents. It would put an additional burden on the employer, not contemplated by the statutes, to require him to pay either wages or compensation to representatives of an employee who died from natural causes. If an employee had a vested right in compensation, he could will it away, and the employer would be paying this substitute for wages to persons with whom he had no connection.
Sherlin v. Liberty Mutual Insurance Co., 584 S.W.2d at 458. The court determined that the claimant’s personal representative was entitled to temporary total benefits which had accrued at the time of his death, but not to the settlement amount that had not been approved prior to his death.
Our own workers’ compensation statutes provide that no compensation for disability is payable for any period beyond a claimant’s death. However, an award of compensation for disability may be made after the claimant’s death for the period of disability preceding death. Ark. Stat. Ann. § 81-1323(e) (Repl. 1976). We agree with the reasoning of the courts in the above-cited jurisdictions and find that the settlement reached by the deceased claimant and the appellees is not effective because a joint petition hearing had not been conducted and Commission approval had not been rendered prior to the claimant’s death.
The appellant also argues that the settlement agreement between the decedent and appellees is enforceable based upon estoppel and waiver. Appellant contends the appellees are estopped to deny the settlement because they caused the claimant to have her appeal remanded for the purposes of entering a joint petition and that the claimant relied on appellees’ conduct to her detriment or abandoned a legal right upon appellees’ representations. The cases appellant cites in support of an estoppel theory are not workers’ compensation cases. We have already held that our workers’ compensation laws prevented the payment of the settlement agreement reached in this case. Accordingly, the claimant’s death prior to the Commission’s approval of the settlement caused the agreement not to be enforced; the failure to approve or enforce the agreement was not caused by appellees’ conduct.
Appellant’s argument based upon waiver is much the same as her estoppel argument. Because the appellees entered into the settlement agreement, appellant contends, they waived their rights to object to the settlement. Again, waiver simply does not apply in this instance, because it is not the appellees’ actions that preclude enforcement of the settlement, but the claimant’s untimely death.
Because we find that the settlement agreement was. not effective prior to approval by the Commission pursuant to Ark. Stat. Ann. § 81-1319 (Repl. 1976), we consider appellant’s alternative request for relief, that is, that we decide the issues presented in the original appeal. Both parties had appealed the Commission’s award to the claimant of 35% permanent partial disability. The appellant raised five points for reversal, some of which we can consolidate for our discussion purposes.
The appellant’s first allegation of error, that the Commission should have allowed the claimant’s request to present additional evidence, was rendered moot by the claimant’s death. However, we do not find error in the Commission’s denial of the claimant’s request. The statutory provisions that give the Commission the right to make investigations, order medical examinations or to take such action as it deems proper to ascertain and protect the rights of the parties, provide that these actions of the Commission are discretionary, not mandatory. Ark. Stat. Ann. §81-I319(i), -1323(b), -1327 (Repl. 1976 and Supp. 1983). We do not find that the Commission abused its discretion in denying the claimant the right to additional time to be tested and to introduce the results of a C. T. scan.
We consider the appellant’s second and third points together, that the Commission applied an improper legal standard and failed to set out its findings of fact. Appellant contends the Commission based its decision upon whether the evidence supported the decision of the administrative law judge. However, the appellant has misconstrued what the Commission said. The Commission found the decision of the administrative law judge “supported by a preponderance of the evidence.” In addition, the Commission affirmed and adopted the decision of the administrative law judge. That adoption had the effect of transferring to the Commission the findings of the law judge. See Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. 307, 635 S.W.2d 276 (1982); Dedmon v. Dillard Department Stores, Inc., 3 Ark. App. 108, 623 S.W.2d 207 (1981); Jones v. Scheduled Skyways, Inc., 1 Ark. App. 45, 612 S.W.2d 333 (1981).
Appellant’s fourth point is that the Commission erred in failing to resolve whether the appellees had controverted the 10% permanent partial disability benefits and if so, which of appellant’s two lawyers was entitled to the fee. The Commission found the record inadequate to decide those questions. It instructed the parties to resolve those issues themselves or to request a hearing before the law judge to develop evidence on those points. We find no error in the Commission’s determination. The appellant argues to us the argument she should have developed before the law judge. We cannot consider the merits of the question when it was not argued below. Hamilton v. Jeffrey Stone Co., 6 Ark. App. 333, 641 S.W.2d 723 (1982).
Finally, the appellant contends the Commission’s decision is not supported by substantial evidence. Appellant argues, based primarily upon the claimant’s testimony, that the record clearly shows the claimant was totally disabled. However, what appellant argues is precisely the factual question that was before the Commission. We must affirm the Commission if substantial evidence supports its finding that the claimant suffered permanent partial disability of 35% to the body as a whole. We find substantial evidence does support that finding in light of all of the evidence: the claimant’s testimony, Dr. Hartmann’s rating of 10% to the body as a whole, and Dr. Lester’s rating of 10-15% to the body as a whole. Dr. Giles found “chronic disability . . . without evidence of clinical radiculopathy.” The Commission awarded disability in an amount greater than the medical evidence warranted, indicating that the Commission undoubtedly took into consideration the testimony of the claimant and her daughter, as well as factors other than medical evidence. See Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).
We have determined that the Commission was correct in finding the proposed settlement ineffective because a hearing was not conducted on the joint petition prior to the claimant’s death. In addition, we affirm in all respects the Commission’s decision that resulted in appellant’s first appeal. The appellees are liable to the claimant’s personal representative for all benefits that had accrued at the time of claimant’s death, figured at 35% to the body as a whole.
Affirmed.
Cracraft and Corbin, JJ., agree.
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H. William Allen, Special Judge.
This appeal arises from a paternity action that appellant filed against appellee in 1979. The County Court of St. Francis County found the appellee, Lindell Houston, to be the father of Keenan Bradley. Houston appealed that judgment to the circuit court. Following a motion by appellant, Dorothy Bradley, to require a blood test, on February 10, 1982, the circuit court ordered the appellant, Bradley, the appellee, Houston, and Keenan Bradley to undergo blood tests pursuant to statute. Ark. Stat. Ann. § 84-705.1 (Supp. 1983). A jury trial was held in St. Francis County on May 11, 1983; the jury found Houston not to be the father of Keenan Bradley. In appealing that verdict, appellant alleges the trial court committed two reversible errors below. She contends the court erred (1) in limiting appellant’s examination of Dr. Jerry L. Morrisey, the expert witness who performed the blood test analysis, and (2) in permitting appellee’s expert witness, Steve Murray, to testify. For the reasons set out herein, we affirm the jury’s verdict.
A brief recitation of what occurred procedurally prior to and during trial is necessary to an understanding of this appeal. In 1979, after appellant had filed her paternity action, each party filed answers to the other’s interrogatories, which included questions requesting the names of all witnesses to be called at trial, including expert witnesses. Neither party listed the names of the two experts who actually testified.
On the day of the trial, counsel for the appellee objected in chambers to the appellant’s calling Dr. Mor-risey, a chemist, to testify about results of the court-c/rdered blood tests. Appellee’s attorney contended that appellant was in violation of Rule 26(e) of the Arkansas Rules of Civil Procedure because she had not identified Dr. Morrisey as an expert witness in her answers to appellee’s interrogatories filed nearly four years before. Appellee’s counsel stated that he was given a copy of the blood test results on May 6, 1983, only five days before trial, but acknowledged that appellant’s counsel had informed him by telephone of those results on April 25, 1983.
The trial court ruled that the test results were admissible and that Dr. Morrisey would be permitted to testify but that his testimony would be restricted to the contents of the test results which had been provided to appellee’s counsel. The court ruled further that it would permit appellant to elicit testimony concerning Dr. Morrisey’s educational background and qualifications. Counsel for appellant objected to the trial court’s limiting the scope of Dr. Morrisey’s testimony at all and stated, “If allowed to testify, our expert would proffer testimony as to how the test was developed, its acceptability in the scientific community and the reliability of the test.”
Dr. Morrisey testified, subject to some limitations upon appellee’s objections. His testimony included his finding that the probability of appellee’s being the father of Keenan Bradley was 95.83%, a “reasonable scientific certainty.” On cross-examination, appellee’s counsel attempted to pose the following hypothetical to Dr. Morrisey:
Doctor, for the purpose of this question I want you to assume that there are 6,000 black males of fertile age in St. Francis County. Now, I want you, please, sir, to take the difference between 100% and 95.83%, which is your paternity index in this case. That would be . . . 4.17% .... Would you take 4.17% of 6,000 and tell the jury what that figure is?
Counsel for appellant objected to the hypothetical because no proof had been introduced to support the number of black males in St. Francis County. The trial court ruled that no foundation existed for the hypothetical. Later that day, and over appellant’s objection, appellee called Steve Murray, Director of Admissions and Registrar at East Arkansas Community College, to provide the figure of adult black male population in St. Francis County. Murray testified to the 1970 census figure. The basis of appellant’s objection to Murray’s testimony was that Murray’s name had not been listed as an expert witness in appellee’s answers to appellant’s interrogatories in compliance with Rule of Civil Procedure 26(e).
Thus, both of appellant’s points for reversal are based upon Rule 26(e). Rule 26(e) provides, in pertinent part;
Supplementation of Responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:
(1) A party is under duty seasonably to supplement his response with respect to any question directly addressed to. . .(B) the identity and location of each person expected to be called as a witness at trial, and in the case of expert witnesses, the subject matter on which he is expected to testify, and the substance of his testimony.
Ark. R. Civ. P. 26(e) (Repl. 1979).
We do not believe this rule is applicable to this situation because (1) Dr. Morrisey’s report and the likelihood that he would appear as a witness were not a surprise to appellee’s counsel, who, in any event, had sufficient time before trial to seek a continuance on the basis of surprise, and (2) Dr. Morrisey was technically the court’s witness, pursuant to Ark. Stat. Ann. § 34-705.1, and could not reasonably be expected to be on a listing of appellant’s witnesses. Ark. Stat. Ann. § 34-705.1 (Supp. 1983) provides in pertinent part as follows:
Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the defendant, complainant and child submit to one (1) or more blood tests or other scientific examinations or tests, to determine whether or not the defendant can be excluded as being the father of the child, and to establish the probability of paternity if the test does not exclude the father (defendant). The results of the tests shall be receivable in evidence. The tests shall be made by a duly qualified person, or persons, not to exceed three (3), to be appointed by the court .... Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings. (Emphasis supplied).
Thus, the trial court properly permitted Dr. Morrisey to testify. The more difficult question is whether prejudicial error occurred by the trial court’s limitation of the scope of appellant’s examination of Dr. Morrisey. Given the language previously quoted, it appears that a wide latitude of examination by all parties was intended by the statute. Further, we are not unmindful of our rule that error is presumed to be prejudicial unless it is demonstrated to be otherwise or is manifestly not prejudicial. Chappell Chevrolet, Inc. v. Strickland, 4 Ark. App. 108, 628 S.W.2d 25 (1982). However, we have concluded that in this instance any error by the trial court in restricting Dr. Morrisey’s testimony was not prejudicial for the following reasons: (1) the latitude of the examination that did occur, and (2) the fact that there was no challenge by the appellee at trial to the authenticity of the test, its acceptability in the scientific community or its reliability.
(1) The testimony presented gave substantial validity to the test results.
Appellant was able to elicit the following from Dr. Morrisey: He has a Ph.D in chemistry and has done post-doctorate work in genetic defects in children. His training in performing medical laboratory tests was at a school of medicine. He has been employed for three years at Roche Bio-Medical Reference Laboratories in Gibsonville, North Carolina, which performs laboratory medical tests for paternity evaluation. He has previously testified in ten or eleven other cases as an expert in interpreting paternity evaluations. Over the past two years, he has attended lectures and seminars and has read the scientific literature concerning paternity evaluation.
Dr. Morrisey also testified in detail regarding how the two separate tests on the paternity evaluation report were conducted and on the basis for his conclusion that he was 95.83% certain that the appellee was the father of appellant’s son. He testified that one of the testing procedures utilized “has been used extensively in paternity evaluations over the past few years in different parts of the country.” The report itself, admitted into evidence as an exhibit, prominently reflects, “Probability of Paternity— 95.83%” as to appellee, and the report is an affidavit form signed not only by Dr. Morrisey as Assistant Director but also by James W. Geyer, Ph.D., Director, Department of Paternity Evaluation, Bio-Medical Reference Laboratories, Inc.
(2) The reliability of the test results was not contested by appellee.
Appellee’s defense to the paternity claim did not challenge Dr. Morrisey’s finding or conclusions but, instead, focused on the margin of error recognized by the test results. Appellee asserted that because the test was not 100% certain, the true father could have fallen within the 4.17% margin of error.
Accordingly, in the circumstances of this case, where extensive testimony concerning the qualifications of the witness, the methodology of the testing and some evidence regarding its acceptability nationwide were presented, plus the fact that the credibility of the test results was not put to the issue, we cannot find prejudice to the appellant by the trial court’s ruling. In the absence of prejudice, there was no reversible error. King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959).
Appellant’s second point is that the trial court erred in permitting Steve Murray, the college registrar, to give the black male population statistics in St. Francis County based upon the 1970 United States Census because appel-lee failed to supplement his witness list in compliance with Rule 26(e). Since no issue of relevancy was raised, there was no error in allowing the testimony which amounted to no more than the extraction of public census information. Even without the presence of a witness, the court could have taken judicial notice of this information under Unif. R. Evid. 201, or admitted it as the contents of a public record, Unif. R. Evid. 1005. The court did not abuse its discretion in permitting introduction of this readily accessible information, even though no advance notice of this “expert” witness through which the information was submitted was provided to appellant.
Although we agree with appellant that the trial court erred in limiting Dr. Morrisey’s testimony based upon Rule 26(e), we cannot say that appellant demonstrated that prejudice occurred because of that error. We also find no abuse of discretion in the court’s admitting testimony limited to 1970 census statistics through a witness not provided in advance under Rule 26(e). This holding is based upon the unusual factual and procedural circumstances in this case and is not intended to serve as a basis for relaxing the requirements of Rule 26(e).
Affirmed.
Cracraft, C.J., and Cloninger, J., agree.
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Lawson Cloninger, Judge.
Appellant was convicted of Interference with Custody, a Class D felony, Ark. Stat. Ann. § 41-2411 (Repl. 1977), and was given a three year suspended sentence. On appeal, she argues a single point for reversal, contending that the evidence was insufficient to support a conviction because she lacked the necessary culpable mental state. We do not agree, and we affirm the trial court’s decision.
Ark. Stat. Ann. § 41-2411 (Repl. 1977) provides:
(1) A person commits the offense of interference with custody if, knowing that he has no lawful right to do so, he takes, entices, or keeps any person entrusted by court decree to the custody of another person or to an institution from the lawful custody of that person or institution.
(2) Interference with custody is a class D felony if such person is taken, enticed, or kept without the state of Arkansas. Otherwise, it is a class A misdemeanor.
The instant case was submitted to the circuit court on a stipulation of facts signed by appellant and the deputy prosecutor. The parties stipulated that, following the separation of appellant and her husband, a decree was entered awarding joint custody of their minor child for alternating three month periods. At the beginning of the first three month period, during which the husband had custody of the child, appellant moved back into her husband’s residence, and the couple resumed cohabitation. Later in the same month, while her husband was at work, appellant removed the child from the house and moved to the state of Arizona. She was charged with Interference with Custody and was extradited to Arkansas. The Arizona authorities returned the child to the custody of her father.
The trial court found appellant guilty on the basis of the stipulated facts. In a letter to both parties, the judge explained his finding:
Defendant now contends that because she resumed cohabitation with Marlin Sims . . . the custody order entered in the divorce proceeding was nullified, particularly in view of the fact that no divorce was granted. Defendant’s position, if honored, would amount to a vacation of a legitimate court order by the conduct of the parties in the case without any reference to the court concerning the best interests of the child. This cannot be permitted for many reasons. If Defendant wanted to change the custody arrangement ordered by the court, she should have made application to the court to do so. Instead, she took action which constitutes contempt of court and cannot be countenanced by this Court.
The court then ordered appellant to appear for sentencing.
In the sentencing phase, appellant testified that when she realized that the renewed relationship between her and her husband was not going to be successful she considered leaving with her daughter. Aware that she might not legally be able to do so, appellant consulted with her attorney. She claimed that her subsequent actions were in accord with her lawyer’s advice. Appellant now urges that she lacked the requisite culpable mental state because she had sought the advice of counsel before violating the terms of the court order and believed that her actions were lawful.
Appellant’s testimony concerning her conversation with her attorney was given in the sentencing phase of the proceedings against her. It is obvious from the record that the account was offered and accepted as mitigating, rather than exculpating, evidence. In passing sentence the judge said that “under the circumstances I will suspend imposition of a sentence of three years, and the reason I’m doing it that way rather than probation is because I really don’t see any need for supervision in this case under the circumstances.’’ (Emphasis added.) On the basis of the stipulated facts, the court clearly was within the bounds of its dual function of trier of fact and of law in finding appellant guilty. We find no irregularity in the sentencing phase; to the contrary, it appears that the court properly and, we might add, humanely, exercised its discretion in considering, before passing sentence, the various factors that prompted appellant’s violation of the law.
In criminal cases, this Court presumes that an appellant has been given a fair trial and that the judgment of conviction is valid; appellant bears the burden of showing either prejudicial error in the record or such inadequacy in the record that error cannot be shown. Kendrick v. State, 6 Ark. App. 427, 644 S.W.2d 297 (1982). Appellant was convicted under facts to which she agreed to stipulate; she was given an opportunity to present evidence in mitigation before she was sentenced. Nowhere does she show prejudicial error, and her conviction must stand.
Affirmed.
Mayfield and Corbin, JJ., agree.
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Tom Glaze, Judge.
Appellant was convicted of first degree murder. The jury found that appellant, with premeditation and deliberation, as required by Ark. Stat. Ann. § 41-1502 (Repl. 1977), had beaten the deceased, David Michel, to death. Appellant was sentenced to thirty years imprisonment.
In this appeal, appellant raises six points for reversal. Appellant challenges the sufficiency of the evidence to sustain a conviction of first degree murder. He also maintains that the trial court impaired his constitutional right of confrontation and cross-examination. Finally, appellant contends that the trial court erred in allowing the State to charge him with first degree murder after initially charging him with second degree murder, in admitting certain evidence into the State’s case in chief against him, in allowing the State’s to refer to his commission of another crime, and in failing to give a requested instruction to the jury. Of these six allegations of error, only the points concerning the sufficiency of the evidence, the reference to another crime and the limitation of cross-examination merit detailed discussion.
All witnesses’ descriptions of the initial events of appellant’s encounter with Michel are consistent. On the evening of November 10, 1982, Michel was drinking in a Little Rock tavern with three friends. John Lock, one of Michel’s friends, got into a scuffle with appellant; both Lock and appellant were ejected from the tavern. Michel and one or two of their companions joined Lock outside the establishment, and one of them challenged appellant to meet them on the parking lot of a nearby K-Mart store.
Appellant testified that he pulled his truck onto the lot to see if a nearby Safeway store was open because his girlfriend wanted to buy some cigarettes. Once he was on the parking lot, a car was pulled onto the lot at a high rate of speed and the driver tried to cut him off from an exit. He turned his truck, and the driver of the car tried to cut him off again. According to appellant, when a second car entered the parking lot, he stopped his truck because “I didn’t think that there was any way I could get by without them both trying to block me off again.” Next, two or three people got out of one of the cars, fanned out and tried to circle his truck. After a bottle struck his truck, appellant got out of his vehicle with his .30-.30 rifle and fired two shots into one of the cars. Appellant stated that he was scared that he and his girlfriend were going to be hurt. He stated he “was not aware of anyone in the car” and fired into it “to scare the people that were running after me away and hopefully to disable their car where they couldn’t follow me.” After appellant fired the shots, his antagonists returned to the car and fled. Appellant stated that, during this rapid sequence of events, as he was getting into his truck, he heard the sound of footsteps on metal and saw someone diving toward the back of his vehicle off the top of a nearby tractor-trailer truck. Appellant stated that he did not see the man hit the pavement of the parking lot but that he did hear “bones pop” when the man struck the pavement. He did not move toward the back of his truck to determine what happened but, instead, wanting “to get out of there,” he started his truck and left the parking lot. Appellant testified that he did not know who dove off the truck, and he emphatically denied that he struck the deceased with his rifle butt. Appellant’s girlfriend’s testimony was essentially the same as appellant’s.
The companions of the deceased, Lock and Matthew Webre, tell a different story concerning the events that occurred on the K-Mart parking lot. According to them, they saw the appellant’s truck and followed it onto the lot. They stated that they pulled up beside appellant’s truck and asked him what was wrong. Lock stated that they were not seeking appellant to attack him but to “get calmed down with him.” Rather than respond to their question, appellant drove his truck away and turned it around so he was facing their automobile. Then, according to these witnesses, appellant got out of his truck, bent over the back of the truck and fired two rifle shots into their car, both of which struck John Lock, who was sitting on the passenger side of the car in the front seat. After the shooting, Webre drove Lock to a nearby hospital. Earlier, while appellant was turning his truck around, David Michel got out of the car and began running toward a Salvation Army trailer parked on the lot. Lock and Webre stated that they did not leave their car and that they did not see Michel after he got out of Webre’s car. Webre stated that no one threw a bottle at appellant’s truck.
At trial, in addition to the testimony outlined above, the State introduced the testimony of a passerby, Marcella Shelley, who stated that, on the night in question, she saw a boy standing over another boy who was prostrate on the parking lot. This witness saw the boy who was standing holding a cane or a shillelagh. The State also introduced testimony of a co-worker of appellant who stated that appellant told her he had hit a man with his rifle butt and had beaten him up. Also, the State introduced numerous exhibits; among them were the shirt that Michel was wearing on the night in question, x-rays of his body, and a transparency of the butt of appellant’s rifle. Both appellant and the State introduced the testimonies of medical experts. The State’s expert witness, the chief medical examiner of Arkansas, declared that the deceased had been struck with a hard object on the left collarbone, on the back of the shoulder, and on the head with tremendous force. The medical examiner testified that the pattern of the injuries was consistent with the State’s theory that appellant struck the deceased with a rifle butt and that the deceased’s body showed no indication of having been injured in a fall. During cross-examination, the chief medical examiner stated that “[I]t would be impossible for Michel to suffer these injuries if he jumped from a trailer.” One medical expert, testifying on appellant’s behalf, stated that Michel could have sustained his injuries by jumping off a tractor-trailer rig and striking the rear of appellant’s truck. Another expert, testifying for appellant, said that Michel’s injuries were caused by a fall and not by a blow from a hard object.
Of. appellant’s six allegations of error, one — .the limitation of his right of cross-examination — clearly merits reversal and remand. Appellant wished to challenge the credibility of the eye-witness, Marcella Shelley, based on her psychological records. Appellant made a pre-trial discovery motion for these records based on his belief that Shelley had such psychological impairment that she frequently fantasized events that never occurred. The trial court denied the motion. During a pre-trial hearing, appellant’s attorney tried to question Shelley’s psychologist to determine if her mental condition affected her credibility as a witness. The psychologist evoked the psychotherapist-patient privilege of Arkansas Uniform Rule of Evidence 503 and refused to discuss any of Shelley’s psychological history. When appellant asked the trial court to order the psychologist to testify, the trial court ruled:
These records . . . are protected by patient-doctor relationship. The Doctor, if he were to testify, would violate that privilege and confidence. I am not going to order those records to be disclosed, and he can’t testify to anything about that treatment unless she permits him to. That is the reason the rule is in here. (Emphasis supplied.)
The trial court also ruled that the privilege prevented appellant from calling the psychologist to rebut Shelley’s expected testimony about her psychological condition and that Shelley did not have to assert her psychotherapist-patient privilege before the jury. Finally, the trial court refused to order the psychologist to proffer his testimony about Shelley’s mental condition into the record. At trial, Shelley admitted that she had received psychological counseling to help her tolerate back pain.
The trial court’s refusal to order Shelley’s psychologist to testify about his treatment of her was clearly error. Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982), unequivocally holds that the privilege of Rule 503 does not prohibit testimony identifying a patient’s medical treatment. The Arkansas Supreme Court in Baker rejected a motion that Rule 503, the physician and psychotherapist/patient privilege, protected “any information” exchanged between doctor and patient; instead, the Court construed the privilege narrowly to protect only confidential communications between doctor and patient, Here, appellant attempted to elicit information from the psychologist concerning whether his treatment of Shelley involved any impairment on her part to perceive correctly the events to which she would testify in this cause. As earlier stated, appellant sought to show Shelley suffered from a histrionic personality, causing her to fantasize events that never happened. In short, appellant’s inquiry to the psychologist was directed toward his diagnosis of Shelley’s mental condition and not his confidential communications with her. Nonetheless, the trial court’s ruling effectively excluded appellant’s effort to obtain any information from the psychologist. Of course, such a ruling runs contra to the Supreme Court’s desire expressed in Baker to give full range to the accused’s constitutional right to confront and cross-examine witnesses against him. Given the Arkansas Supreme Court’s emphasis in Baker on the narrow protection afforded by Rule 503, we feel compelled to reverse and remand this case for a new trial.
Because appellant will have a new trial, we will resolve his other allegations of error that could reoccur there. First, appellant contends that the State did not adduce any evidence that he premeditated the murder of David Michel. Appellant’s argument is three-fold: (1) appellant was not acquainted with Michel and had no quarrel with him; (2) expert medical witnesses testified that Michel’s injuries could have been caused by a fall; (3) the State put forward no evidence showing appellant weighed in his mind the decision to strike the deceased. Appellant’s first sub-point seems to be a suggestion that the State failed to prove appellant had a motive for murdering Mr. Michel; however, the State is not bound to prove a motive for the killing. Ezell v. State, 217 Ark. 94, 229 S.W.2d 32 (1950). Appellant’s second and third sub-points were discussed in our recent case of Jones v. State, 11 Ark. App. 129, 668 S.W.2d 30 (1984). Like the instant case, Jones was a first degree murder case in which the evidence of premeditation and deliberation consisted of expert testimony regarding the nature, extent and location of the wounds inflicted on the deceased. As in the instant case, both sides in Jones presented conflicting testimony concerning the nature and extent and location of the wounds. In this case and in Jones, the jury chose to believe the State’s expert, the chief medical examiner, who testified that Michel had suffered a broken collarbone, broken ribs and a fractured skull as a result of three blows from a hard object and that these injuries could not have been sustained in a fall. It is the jury’s duty to assess the credibility of expert witnesses. Testimony of expert witnesses is to be considered by the jury in the same manner as other testimony and in the light of other testimony and circumstances in the case; the jury alone determines its value and weight and may, under the same rules governing other evidence, reject or accept all or any part thereof as it may believe to be true or false. Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied 449 U.S. 852 (1980), appeal after remand, 276 Ark. 149, 634 S.W.2d 92 (1982), cert. denied, _ U.S _, 103 S.Ct. 386 (1982). We must affirm the jury’s verdict if there is substantial evidence to support it. Stanley v. State, 248 Ark. 787, 454 S.W.2d 72 (1970). Based on our review of the State’s expert testimony and the other facts and circumstances of the case, we find that the State did put forward substantial evidence of appellant’s premeditated and deliberated murder of David Michel.
Appellant next contends that the State violated Arkansas Uniform Rule of Evidence 404(b) when it introduced evidence that appellant had shot John Lock twice in the back with his .30-.30 rifle. According to appellant, the evidence had no probative value and was introduced simply to prejudice him by showing that he is a criminal. The State counters that appellant’s attack on Lock and his murder of Michel are an indivisible criminal transaction. We agree with the State’s characterization of the events on the night in question. The Arkansas Supreme Court has stated repeatedly that all of the acts of a contemporaneous criminal transaction are admissible into evidence. See Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981).
Appellant also argues that the trial court erred in admitting a shirt that the deceased supposedly wore on the night he was injured because the shirt had not been properly authenticated and because the shirt had been tampered with. David Michel’s mother testified that the shirt the State introduced at trial was, in fact, the shirt her son had worn on that night. She testified further that she had washed the shirt because it had a small grass stain on it and that it had no rips or tears in it. We believe this evidence was properly authenticated under Arkansas Rule of Evidence 901(b)(1), which states that the testimony of a witness with knowledge that an item is what it is claimed to be is proper authentication. The possibility that certain stains on the shirt had been washed away simply goes to the weight the jury was to accord the evidence.
Appellant also contends that the trial court should not have admitted a transparent photograph of appellant’s rifle butt and an x-ray of the deceased’s rib cage into evidence. The appellant argues that he had not been given the opportunity to examine these exhibits as required by Arkansas Rule of Criminal Procedure 17.1(a)(V), which requires the prosecuting attorney to disclose to the defense counsel, upon timely request, any photographs the prosecuting attorney intends to use at trial. Any prejudice appellant may have suffered from being unaware of this evidence cannot reoccur at his new trial, so we need not decide this point.
Appellant also argues that the trial court erred in allowing the State to charge him with first degree murder after initially charging him with second degree murder. Originally, the State charged appellant with second degree murder; however, the trial court permitted the State to enter a nolle prosequi to the second degree murder charge and refile a first degree murder charge. According to appellant, this tactic is a violation of Ark. Stat. Ann. § 43-1024 (Repl. 1977), which states:
The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to. matters of form, or may file a bill of particulars. But no indictment shall be amended, nor a bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.
However, in the case of Abernathy v. State, 278 Ark. 250, 644 S.W.2d 590 (1983), the Arkansas Supreme Court upheld just such a procedure. It is true that in Abernathy four months passed between the filing of the new charge and the appellant’s trial and that only two weeks passed in the case at bar. However, because appellant denied all along that he struck the deceased, we fail to see how appellant was surprised or otherwise prejudiced in the preparation of his defense. In a related argument, appellant contends the filing of the first degree murder charge was a violation of his constitutional due process rights because'the filing of the charge was motivated by prosecutorial vindictiveness when appellant refused to plead guilty to a lesser homicide charge. The trial court held an extensive pre-trial hearing on this point and ruled that there had been no prosecutorial vindictiveness. In his brief, appellant does not point out how the trial court’s findings on this issue are erroneous; instead, he simply makes a sweeping assertion that the prosecutor acted vindictively in filing the first degree murder charge. After a careful review of the record of the pre-trial hearing, we are unable to say the trial court was clearly erroneous in making its determination that the prosecutor had not acted vindictively.
Appellant’s final point, that the trial court erred in not instructing the j ury that appellant had a constitutional right not to testify against himself, is without merit. When the defendant does take the stand to testify in his behalf, as appellant did in this case, the trial court need not instruct the jury that the defendant does not have to testify. Caldwell v. State, 214 Ark. 287, 215 S.W.2d 518 (1948).
Having addressed and decided each point likely to reoccur on retrial of this cause, we reverse and remand this case for the reasons stated hereinabove.
Reversed and remanded.
Corbin and Mayfield, JJ., concur.
Cracraft, C.J., and Cooper, J., dissent.
Not all jurisdictions construe the privilege as narrowly as Arkansas. See generally, S. Stone and R. Liebman, Testimonial Privileges 390-92 (1983); E. Cleary, McCormick on Evidence 248-49 (3d ed. 1984).
We recognize that Baker was not a psychotherapist-patient case — the testimony at issue there was from a nurse concerning her treatment of a prisoner in the Pulaski County jail for venereal disease. However, Rule 503, on its face, applies to confidential communications between a psychotherapist and his patient made to diagnose the patient’s mental condition.
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Donald L. Corbin, Judge.
Appellant, Herman Levert Mitchell, was charged with violation of Ark. Stat. Ann. § 41-2203 (Supp. 1983), theft of property by deception. This offense arose out of an investigative audit conducted by the Arkansas Employment Security Division. The audit allegedly established that appellant had illegally received unemployment benefits in excess of $2,000.00. Fraud was assessed and as the amount in question was in excess of $500.00, the matter was turned over to the office of the prosecuting attorney. In addition to the theft charge, the information provided that appellant was subject to sentence enhancement pursuant to Ark. Stat. Ann. § 41-1001 (Supp. 1983), as an habitual offender having at least three prior felonies. Appellant waived a trial by jury whereupon the trial court found appellant guilty of the offense. Sentence was fixed at twelve years in the Arkansas Department of Correction. We affirm.
On appeal, appellant contends for reversal that the policy of the State of Arkansas, Arkansas Employment Security Division, to prosecute only those persons who fraudulently obtain $500.00 or more in unemployment benefits, regardless of the circumstances, is a discriminatory enforcement of Ark. Stat. Ann. § 41-2203 in violation of appellant’s right to equal protection of the law, has no rational basis, represents an illegal classification, involves an unequal application of the law, and the effect of which has unlawfully usurped the power of the legislature. The prosecutor’s office and the Arkansas Employment Security Division are separate and distinct entities. It should initially •be noted that the Arkansas Employment Security Division does not in fact prosecute individuals. It is merely the victim of fraud under these circumstances and the prosecuting attorney’s office prosecutes criminal charges.
The essence of appellant’s argument would appear to be that he should escape punishment because others who fraudulently obtain unemployment benefits under $500.00 are not prosecuted. Such laxity is not ordinarily a defense to criminal prosecution. See, Poe v. State, 251 Ark. 35, 470 S.W.2d 818 (1971); Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W.2d 679, cert. denied, 352 U.S. 894 (1956); Barnett v. State, 183 Ark. 884, 39 S.W.2d 321 (1931). It appears to us that the Arkansas Employment Security Division’s administrative policy of recommending prosecution only when there has been a theft in excess of $500.00 of unemployment benefits is representative of a valid administrative decision-making function, does not create a new statute and is not improper. Nothing different in the form of punishment was sought nor was there any showing of a difference in treatment in respect to recommending prosecution for all persons who illegally obtained benefits in excess of $500.00. Furthermore, the record reflects that the Benefit Payment Control Unit of the Arkansas Employment Security Division made the decision to seek prosecution and that the prosecutor’s office had no input in its decision. When asked by the trial court why the Employment Security Division used $500.00 as the minimum amount, it responded that the national office of the Department of Labor had recommended that only the most flagrant cases be prosecuted.
Equal protection of the laws necessarily extends to their application. Taylor v. City of Pine Bluff, supra. However, the conscious exercise of some selectivity in enforcement is not in itself a constitutional violation. See, e.g., Oyler v. Boles, 368 U.S. 448 (1962); United States v. Ojala, 544 F.2d 940 (8th Cir. 1976); United States v. Swanson, 509 F.2d 1205 (8th Cir. 1975); and Poe v. State, supra.
In Oyler v. Boles, supra, certiorari was granted in habeas corpus proceedings commenced in the Supreme Court of Appeals of West Virginia seeking relief from conviction under that state’s recidivist statute. The United States Supreme Court observed:
Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a. denial of equal protection were not alleged. [Cites omitted]
We find no merit to appellant’s contention that the policy of the Arkansas Employment Security Division violates his right to equal protection of the law and there is no evidence that the prosecuting attorney’s office engaged in selective prosecution. Therefore, we hold that appellant has not met his burden of proof in establishing an equal protection violation nor did he establish an absence of a rational basis. United States v. Swanson, supra. As stated previously, we believe this administrative policy represents a valid administrative decision-making function.
Affirmed.
Cloninger and Mayfield, JJ., agree.
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George K. Cracraft, Judge.
Pinta Lou Bray was charged with the crime of arson after she voluntarily confessed to having set fire to a couch and a mattress in a halfway house. In her confession she stated that she had set the fire to get even with one of the supervisors of the halfway house. A jury found her guilty of the lesser included offense of criminal mischief in the first degree and she was sentenced to a term of four years in the Department of Correction. On appeal she contends that the trial court erred in not directing a verdict at the close of the State’s case because the evidence apart from her own confession was insufficient to establish that a crime had been committed. We agree.
Ark. Stat. Ann. § 43-2115 (Repl. 1977) provides that a confession of a defendant, unless made in open court, will not warrant a conviction unless accompanied with other proof that such an offense was committed. This statute requires that an extrajudicial confession be accompanied by other proof that the crime confessed to was actually committed by someone. The test of the correctness of the verdict is not whether the evidence is sufficient to sustain the verdict, but whether there was sufficient evidence that such an offense was actually committed or, in other words, proof of the corpus delicti. Bivens v. State, 242 Ark. 362, 413 S.W.2d 653 (1967).
Ark. Stat. Ann. § 41-1906 (Repl. 1977) provides that a person commits the offense of criminal mischief in the first degree if he purposely destroys or causes damage to any property of another. It is not enough to show merely that the property was damaged or destroyed, for one essential element of this crime is that the damage was willfully caused and not accidental.
Although the appellant voluntarily confessed that shé willfully set fire to a couch and mattress, her admission will not sustain a conviction unless the record contains other independent proof that the property of another was purposely destroyed or damaged. The only evidence introduced by the State was that of a captain of the Hot Springs Fire Department who stated that when he arrived at the residence he found a couch and mattress on fire. A good portion of the fire had already been put out. There was some smoke damage, but the only property damage was to the mattress and couch. While they were putting out the fire the appellant, who was sitting in a rocking chair behind them, admitted that she had set the fire at least twice. Her voluntary confession was later reduced to writing and was signed by her. No investigation was made to determine how the fires were started or what caused them.
There is no presumption that an unexplained fire is of an incendiary origin. On the contrary the presumption is that such fire is caused by accident, or at least that it is not of criminal design. It is incumbent on the State to prove the corpus delicti, and in the case of intentionally set fires it is necessary that the State prove that the burning of the property in question was caused by a purposeful act of some person criminally responsible and not by natural or accidental causes. Johnson v. State, 198 Ark. 871, 131 S.W.2d 934 (1939). Apart from the confession of appellant there is no evidence in the record, direct or circumstantial, tending to show either that the fire was intentionally set or that it resulted from other than accidental causes.
The State argues that as there were two fires, the jury could have inferred that they were purposely set, relying upon Burke v. State, 242 Ark. 368, 413 S.W.2d 646 (1967). We think Burke is clearly distinguishable. There a man discovered two fires in separate buildings on his farm which were located several hundred yards apart, burning at the same time. There was testimony from a witness, who was found not to be an accomplice, that he had accompanied the defendant to the property on the night of the fire. When the defendant stated his intention to burn the building, the witness left and returned to the vehicle. He further testified that he subsequently saw the defendant coming from the property after observing “a glow out to the left which was going pretty good.” The witness stated that the defendant admitted to him that he had set the fires. There was no evidence to rebut this. In those circumstances the court stated that in the total absence of evidence that the fires could have been other than of incendiary origin the question was properly submitted to the jury. We interpret the words of the court not to mean that the two separate fires were circumstances giving rise to an inference of arson, but that the direct testimony of the witness was sufficient to overcome the presumption of accidental origin if the jury chose to believe him. In this case the mere fact of the fires and the presence of the appellant in the vicinity are insufficient to rebut the presumption that the fires were accidental.
The State further contends that the presumption mentioned in Johnson and followed in Boden v. State, 270 Ark. 614, 605 S.W.2d 429 (1980) and Carpenter v. State, 204 Ark. 752, 164 S.W.2d 993 (1942) does not apply to criminal mischief in the first degree but is restricted to arson. As criminal mischief in the first degree may be committed by purposely destroying or damaging another’s property by fire, we see no reason why the same presumption of accidental origin should not apply in such cases.
Reversed and dismissed.
Cooper and Cloninger, JJ., agree.
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George K. Cracraft, Judge.
Thomas Jeffery Tackett was found guilty by a jury of the crimes of manslaughter and leaving the~scene of a personal injury accident. He was sentenced to a term of eight years in the Department of Correction on the charge of manslaughter and was fined |10,000 on the charge of leaving the scene of a personal injury accident. He appeals only from the conviction of manslaughter contending that the evidence was not sufficient to support the conviction and the court erred in admitting hearsay evidence. We find no error.
On March 24, 1983 the passenger in a vehicle driven by Lesa Diffee was killed in an accident. The State’s theory was that a blue and white van driven by Thomas Jeffery Tackett had intentionally bumped the rear of Diffee’s vehicle and that this reckless act caused her to lose control of her car. The appellant contended that the Diffee vehicle was out of control when he first observed it and that he had swerved to avoid hitting it and was unaware of any contact between the two vehicles.
The State’s witness, Lesa Diffee, testified that a blue and white van driven by the appellant struck her car from the rear three times immediately before the accident. She stated that this caused her to lose control of the car and that the van had been travelling close to the rear of her car for some time before the bumps occurred. Two witnesses who had arrived at the scene of the accident immediately following it testified that Lesa Diffee was screaming for help and was asking if she was going to die. While they were calming her down she stated to them that the blue and white van had forced her off the highway.
In addition Cindy Ryals testified that a short time before the accident she observed a blue and white van trailing the Diffee vehicle as they passed her house. When the two vehicles went into the curve in front of her home they were only two or three feet apart. There was other testimony that a very short time before the accident occurred the blue and white van driven by the appellant had passed at a high rate of speed astraddle of the center line of the highway.
There was also circumstantial evidence of the appellant’s guilt. There was expert testimony that the path taken by the car as it left the highway was consistent with the situation where someone had deliberately run into the back óf a car. These opinions were based on skid marks and other physical evidence found at the scene. The State also introduced evidence establishing that paint and scratch marks on the bumpers of both vehicles indicated that the rear of the Diffee vehicle and the front of the van driven by the appellant had come into contact.
There were some inconsistencies in the testimony and some conflict as to what the physical evidence showed. The appellant’s principal argument is that these inconsistencies were sufficient to raise doubt as to the credibility of the prosecution’s testimony which should be held to be insufficient as a matter of law. It is a settled rule in this state that the resolution of inconsistencies in the evidence adduced at trial is wholly within the province of the jury. Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979). The credibility of witnesses and the weight to be given their testimony is within the exclusive province of the jury. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). It is the settled rule in this state that a jury’s verdict will not be disturbed if it is supported by substantial evidence. Tucker v. State, 3 Ark. App. 89, 622 S.W.2d 202 (1981). We cannot conclude that the verdict of the jury was not supported by substantial evidence.
Appellant principally argues that the trial court erred in permitting Cindy Ryals to testify that approximately fifteen minutes after the accident occurred Lesa Diffee had told her she had been hit from behind twice by a blue and white van. When this evidence was offered the objection was made that it was hearsay. After hearing the evidence as to the circumstances under which the statement was made the trial court ruled that it was admissible. We find no error in that ruling.
Unif. R. Evid. 803(2) states as follows:
Hearsay Exceptions — The following are not excluded by the hearsay rule, even though the declarant is available as a witness; . . .
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
The basis underlying this exception is that a person who experiences a startling event and is still under the stress of the excitment of it when statements are made will not make fabricated statements and their utterances are therefore trustworthy. In these situations the court must find that there was a startling event and that at the time the utterance is made the declarant is still under the stress of excitement resulting from that event when the utterances are made. Weaver v. State, 271 Ark. 853, 612 S.W.2d 324 (Ark. App. 1981); Burris v. State, 265 Ark. 604, 580 S.W.2d 204 (1979). Although John Blankenship did not see the accident he arrived there immediately after it happened and stated that the Diffee car was lying on its side on the west side of the road in a ditch. He saw two people lying in the ditch, one of whom was Lesa Diffee who was “hollering for help” and he tried to calm her down. He said that he could tell her leg was broken and that there was blood on her face. He stated that “she was wanting to know if she was going to die and I tried to assure her she wasn’t.” He asked her what had happened and she told him that a blue and white van had run her off the road.
Cindy Ryals came a short time after and obtained the telephone number of Lesa’s mother and left to call her. Cindy returned in approximately ten to fifteen minutes and again talked with Lesa. Cindy stated at that time that Lesa was in shock and she kept talking to her trying to get her to calm down, holding her hand and wiping her face. Lesa was in considerable pain at the time she told Cindy she had been hit twice from behind. There was testimony from Blankenship that after that statement was made by Lesa and at the time the ambulance arrived to remove her to the hospital she was still in an excited condition requiring his efforts to calm her down.
Under Rule 803(2) although the excited utterance must be made close in time to the startling event the length of elapsed time is only one factor to be considered in determining whether the stress of the excitement has continued. We cannot conclude from the evidence presented that the trial court was in error in his ruling that Lesa had experienced a startling event and was still under the stress of excitement when the statement was made.
Affirmed.
Corbin and Glaze, JJ., agree.
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Melvin Mayfield, Chief Judge.
Masonite Corporation filed suit in circuit court to collect the balance due on a promissory note executed by James Magness. It was alleged that the note represented an “employee advance” and that the sum of $8,800.62 was due and payable. Masonite also alleged that it was indebted to Magness for unpaid wages and vacation pay and asked that it be allowed to credit that amount on the note.
Magness filed a pro se hand-written answer in which he admitted an indebtedness on the promissory note but alleged that he was entitled to pay that amount in monthly payments. He also alleged that Masonite owed him an ¿unspecified amount for unpaid wages, vacation pay, an 8% merit increase granted but never paid, plus penalties under “Arkansas Statute 81-308.”
More than six months after the Magness pleading was filed, Masonite filed an amendment to its complaint in which it alleged as “Count II” that Magness had received cash advances and credit card privileges for travel and entertainment expenses and had violated an agreement between the parties to make proper reports concerning those advances and expenses. The amendment alleged that the advances and expenses charged to appellee and not accounted for amounted to $21,796.01 and asked that a full accounting be made and that Masonite have judgment for any amount due it.
The same day this amendment was filed, Masonite also filed a motion to transfer the case to chancery because the suit was one for an accounting. An order transferring the matter to chancery was filed the next day. On April 5, 1982, an order was entered by the chancellor setting the case for trial at 9:30 a.m. on July 21, 1982. Two days later, April 7, 1982; judgment was entered against Magness for $21,796.01, the total amount mentioned under Count II contained in Masonite’s amendment to its complaint. The judgment recites that Magness was informed by registered mail of the filing of the amendment, that no reply had been made to the amendment and that Magness was, therefore, in default.
On July 2, 1982, 86 days after the entry of the default judgment, Magness, by an attorney, filed a motion to set the judgment aside. The motion alleges that Magness was never informed that he had an affirmative obligation to file a response at any time subsequent to his first answer; that failure to file any required response was due to excusable neglect or other just cause; and that, under Rules 55 and 60 of the Arkansas Rules of Civil Procedure, he was entitled to have the default judgment set aside.
On December 2, 1982, the trial court entered an order denying Magness’s motion to set aside the default judgment. That order recites that the motion was not presented to the court within 30 days from the date of its filing; that Magness did not, within 30 days of the filing of the motion, request the trial court to set a definite date for a hearing; and that the trial court did not take the motion under advisement within 30 days from the date of its filing. It then states that 90 days had elapsed between the filing of the default judgment and the filing of the order setting the hearing and that the court “is without jurisdiction to consider the motion” and it “is hereby denied.”
Magness has appealed to this court and argues that the trial court was in error in holding that it had no jurisdiction to hear the motion. The appellant cites ARCP Rule 55(b) which provides that no j udgment by default shall be entered against a party who has appeared in the action unless the party “shall be served with written notice of the application for j udgment at least three days prior to the hearing on such application.” He correctly contends that the record is clear that the case was set for trial on July 21, 1982, and that the default judgment as to Count II alleged in the first amendment to the complaint was taken on April 7, 1982. The appellant admits that he received by mail a copy of the amendment to the complaint prior to the date that the case was set for trial but argues that the default judgment should be set aside because he did not receive the three-day notice of the hearing on the application for the default judgment as required by Rule 55(b).
The Reporter’s Notes to ARCP Rule 55(b) contains this statement: “Also, where any defendant has appeared in an action, three days’ notice must be given to him on application for default judgment.” The notice requirement comes from the Federal Civil Procedure Rule 55(b). In 10 Wright & Miller, Federal Practice and Procedure 2d § 268? (1983), it is said, “A failure to give the three days’ notice when it is required generally is considered a serious procedural error that justifies the reversal or the setting aside of a default judgment.” One of the cases cited in support of that statement is Marshall v. Boyd, 658 F.2d 552 (8th Cir. 1981) (opinion by Henley, J.).
The appellee argues that the trial court was correct in holding that it had no jurisdiction to consider the appellant’s motion since 90 days had elapsed from the date the default judgment was entered. We are not clear, however, as to the basis of that argument. In its brief, the case of Coking Coal, Inc. v. Arkoma Coal Corp., 278 Ark. 446, 646 S. W.2d 12 (1983), is cited. That case, however, is simply concerned with the question of the timely filing of a notice of appeal after a motion for new trial has been filed. It holds that under Rule 4 of the Rules of Appellate Procedure a motion for new trial is deemed overruled at the end of 30 days if it has not been acted upon, taken under advisement, or set for a hearing on a date certain. In that situation, the rule provides, and Coking holds, that a notice of appeal must be filed within 10 days after the expiration of the 30-day period in order to appeal from the judgment which has been entered. That situation, however, is not involved here since this is an appeal from the order of the court denying the appellant’s motion to set aside the default judgment. The notice of appeal from that order was timely filed and that order is properly before us on appeal.
A letter brief in the record reveals that counsel for appellee argued to the trial court that Jones v. Benton Co. Circuit Court, 260 Ark. 893, 545 S.W.2d 621 (1977), and State Farm Fire & Casualty Ins. Co. v. Mobley, 5 Ark. App. 293, 636 S.W.2d 299 (1982), constituted authority for the trial court to hold it had no jurisdiction to grant the appellant’s motion after the 90-day period had expired. Those cases refer to the procedure established by Act 123 of 1963, which was compiled as Ark. Stat. Ann. §§ 27r2106.3 — 27-2106.6 (Repl. 1979), and those sections are now referred to by the Reporter’s Notes to Appellate Procedure Rule 4 as being superseded by the substantially same procedure of Rule 4. In the Jones case, the point involved was an attempt to avoid the fact that the trial court’s discretionary jurisdiction to grant a new trial lapsed with the term of court. The argument was that the Act 123 procedure extended the time past the end of the term during which the court could act on the motion for new trial. The State Farm case involved the same point; however, the time element was 90 days because ARCP Rule 60(b) had substituted that period for the term of court period involved in Jones.
In this case we believe the court had jurisdiction to grant appellant’s motion even though the 90-day period of Rule 60(b) had expired. Here, we have a motion to set aside a default judgment because it was granted without giving the appellant, who had answered in the case, a three days’ written notice of the hearing on the application for the default as required by ARCP Rule 55(b). We think this constitutes sufficient grounds for setting the judgment aside under ARCP Rule 60(c) (7). Under that provision a judgment may be vacated after 90 days for “unavoidable casualty or misfortune preventing a party from appearing or defending.” The appellant cites Hensley v. Brown, 2 Ark. App. 175, 617 S.W.2d 867 (1981), where we said that the failure of the post office to deliver a letter containing an answer mailed to the clerk constituted excusable neglect, unavoidable casualty or other just cause for failure to file the answer on time. That case cited Perry v. Bale Chevrolet Co.y 263 Ark. 552, 566 S.W.2d 150 (1978), where the court said that default judgments are not favorites of the law and pointed out it had held that where “a responsive pleading should have been in the hands of the clerk within the time allotted for answering, had the clerk’s office not been closed for a five-day holiday period, the plaintiff was prevented from filing a timely answer by unavoidable casualty or misfortune.” In Berringer v. Stevens, 145 Ark. 293, 225 S.W. 14 (1920), a judgment was set aside for “unavoidable casualty” where the court inadvertently granted a default judgment after excusing defendant’s counsel for the term. We think the appellant had proper grounds, under ARCP Rule 60(c) (7), for setting aside the default judgment after the 90 days had expired.
Rule 60 (d) requires that one seeking to have a judgment set aside must assert a valid defense and, upon hearing, make a prima facie showing of such defense. In this case the appellant’s motion alleged he had a meritorious defense to Count II of the first amendment to the complaint and asked that he be allowed to present evidence of that defense at the hearing on the motion. The record does not show the proffer of any such evidence but the order overruling his motion definitely finds that the court has no jurisdiction to grant it and specifically states that the motion is “hereby denied because the court is without jurisdiction to consider said motion because of the lapse of more than 90 days after the filing of the defaultjudgment.” It seems apparent that if the court holds it has no jurisdiction to consider the motion to set aside the default judgment, everyone present would consider the proffer of evidence of a meritorious defense to be moot. At any event, we hold that the court had jurisdiction to grant the motion and we reverse and remand for the court to consider the motion on its merits.
We are holding that the record before us establishes that appellant has sufficient and proper grounds for the court to set aside the default judgment under ARCP 60(c) (7). We also hold that appellant must be given an opportunity to introduce evidence to show a meritorious defense. In that connection, Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982), defines the term “meritorious defense.”
Reversed and remanded.
Cracraft and Cooper, JJ., agree.
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Lawson Cloninger, Judge.
This case is an appeal of directed verdicts in an action based on fraud and deceit. The primary issue is whether appellant made a prima facie case of misrepresentation against appellees First Federal Savings and Loan (now First South) and Sullivant Cross Realty, Inc. At trial, appellant recovered from Mr. & Mrs. J. D. Roberts for breach of implied warranty of habitability, but the trial judge directed verdicts in favor of First Federal and Sullivant Cross on the basis that appellant failed to sustain her burden of proof on the elements of fraud. Appellant now contends that the trial court’s actions were error because fact questions were presented concerning First Federal’s alleged duty to disclose information and Sullivant Cross’s representations.
The Arkansas Supreme Court has adopted from Pros-ser, Law of Torts (4th Ed. 1971), at 685, a statement of the elements of the tort cause of action in deceit:
1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact.
2. Knowledge or belief on the part of the defendant that the representation is false — or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter.’
3. An intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation.
4. Justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it.
5. Damage to the plaintiff, resulting from such reliance.
MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981); Beam v. Monsanto Co., Inc., 259 Ark. 253, 532 S.W.2d 175 (1976). Appellant argues that each of the above elements is applicable to the facts of the present case with regard to both appellees.
Although we do not address the substantive merits of appellant’s claim, we must determine whether the proof, viewed in the light most favorable to appellant, could have presen ted a ques tion of f act for the j ury hada directed verdict not been granted. Henley’s Wholesale Meats, Inc. v. Walt Bennett Ford, Inc., 4 Ark. App. 362, 631 S.W.2d 316 (1982); Ralston Purina Company v. McCollum, 271 Ark. 840, 611 S.W.2d 201 (Ark. App. 1981). The trial court has a duty, when requested to render a directed verdict, to consider whether the evidence against whom the verdict is directed, when given its strongest probative force, presents a prima facie case; only if the evidence viewed in that light, would require the setting aside of a jury verdict should a trial court grant a motion for directed verdict. Henley’s Wholesale Meats, Inc. v. Walt Bennett Ford, Inc., supra. We find, on the basis of the facts set forth in the record, that a prima facie case was made against appellees Sullivant Cross, Inc., and First Federal Savings and Loan. We therefore reverse the decision of the trial court with respect to both appellees.
Appellant purchased a newly constructed house from J. D. Roberts, a builder, who had borrowed construction money from First Federal. Sullivant Cross was the real estate agency with which Mr. Roberts and his wife had entered into an exclusive-listing contract to sell the property. Appellant signed an offer and acceptance in the office of Sullivant Cross and tendered earnest money. A little more than a week later, appellant paid the balance of the purchase price in a First Federal office. Between the time of the purchase and the trial, the house and surrounding realty were flooded three times.
In her action for deceit, appellant alleged that Sullivant Cross represented to her that the property was not located in a designated flood area. She contended that she relied upon these representations throughout the transaction and suffered damages in consequence. Appellant did not argue that First Federal actively made false representations to her but instead insisted that First Federal owed her a duty to disclose the information that the property was located in a flood area.
A question of fact appears to have been presented with respect to Sullivant Cross. Appellant testified that at the closing of the sale she stated that she was purchasing the property on the condition that it would not flood. She further testified that a representative of Sullivant Cross assured her at that time that the real estate was not in a flood area. It is her contention that a survey depicting the flood stage on the lot in question was known to representatives of Sullivant Cross and that this indicates that statements made by them were knowingly false. We agree that appellant presented a question of fact for the jury’s consideration. In finding that a prima facie case was established against Sullivant Cross, we do not hold that appellant was entitled to recover from the real estate agency; rather, we simply find that she is entitled to submit her case against Sullivant Cross to a jury.
Appellant’s contention that First Federal owed her a duty to disclose information on the potential for flooding demands closer scrutiny. First Federal maintains that no confidential relationship existed between it and appellant. The institution had merely loaned construction money to J. D. Roberts and to that extent had an interest in the transaction, but, it claims, apart from offering the use of its offices for completion of the transaction and having representatives present to see that its loan was repaid by Roberts, it had no direct connection with appellant.
Appellant cites 37 Am.Jur.2d, Fraud and Deceit, § 146, for the general rule that “there are times and occasions when the law imposes upon a party a duty to speak rather than to remain silent in respect of certain facts within his knowledge” and failure to speak “is actually equivalent to a fraudulent concealment and amounts to fraud just as.much as an affirmative falsehood.” As the Arkansas Supreme Court has noted, however, in Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 397, 653 S.W.2d 128 (1983), this rule is applicable only under “special circumstances. . . such as a confidential relationship.” The question thus is whether there was sufficient evidence for a jury’s consideration of a confidential or other similar relationship. It is significant that the Court did not limit the circumstances under which a duty to speak exists to a confidential relationship but left open-ended the nature of the connection between the parties. What is of greater importance, therefore, in determining whether a directed verdict was improper in this instance is for us to make an examination of what the Court termed “special circumstances” rather than an effort to fit the facts of the case to that narrower example, a confidential relationship.
Appellant directs our attention to the following passage from 37 Am. Jur. 2d, Fraud and Deceit, § 146, which helps to define the extent of the question:
[T]he law does not, except in broad terms, attempt to define the occasions when a duty to speak arises. On the contrary, there has been adopted, as a leading principle, the proposition that whether a duty to speak exists is determinable by reference to all the circumstances of the case, and by comparing the facts not disclosed with the object and end sought by the contracting parties. The difficulty is not so much in stating the general principles of law, which are fairly well understood, as in applying the law to particular groups of facts.
In the light of this language and that of Berkeley Pump, supra, we hold that the circumstances suggest a relationship between First Federal and appellant substantial enough to warrant the trial court’s submitting the question of whether there was a duty to speak to a jury.
First Federal had a pecuniary interest in the sale and stood to gain by it. The institution made its offices availabe for the conclusion of the transaction and had representatives present to protect its own interest in the contract. Without speculating on the underlying reasons for First Federal’s silence, we can conclude that the circumstances indicate that the repayment of the institution’s loan was a matter of no small importance to its officials.
First Federal acknowledges as much, and yet places emphasis on the fact that, strictly speaking, there was no confidential relationship between it and appellant. The Arkansas Supreme Court held, however, in Hanson Motor Co. v. Young, 223 Ark. 191, 265 S.W.2d 501 (1954) that:
The duty of disclosure. . . arises where one person is in position to have and to exercise influence over another who reposes confidence in him whether a fiduciary relationship in the strict sense of the term exists between them or not.
In the present case, appellant’s testimony revealed that she had moved recently from a less flood-prone part of the state, and had relied considerably upon the integrity of First Federal throughout the negotiations. We believe that a jury should have had the opportunity to weigh these factors in deciding whether or not First Federal owed appellant a duty to speak.
The trial court refused to allow appellant to testify further on her reliance on First Federal’s integrity on the grounds that she had no contractual relationship with the institution. In view of our holding with respect to First Federal, we find error in that decision of the court.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Cracraft and Cooper, JJ., agree.
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Donald L. Corbin, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission finding a compelling reason for a change of physicians by appellee, Lewis Little, and directing that future medical expenses from September 9, 1983, would be the responsibility of appellants, Magic Mart, Inc., and The Home Insurance Company. We affirm.
Appellee sustained a compensable injury on October 26, 1981. He was first treated by a company doctor and returned to work on October 29, 1981. Appellee requested a change of physicians from the company doctor to his family doctor, Dr. Peter Thomas. The change was mutually agreed upon by the parties and Dr. Thomas subsequently referred appellee to Dr. William F. Blankenship for treatment. On January 21, 1982, Dr. Blankenship performed surgery upon appellee to repair the rotator cuff tear and ,a partial acromionectomy of the right shoulder. Dr. Blankenship awarded appellee a permanent partial impairment of 15% to the right upper extremity and released appellee on July 16, 1982. After appellee was released from medical treatment, he returned to work for appellant Magic Mart. He worked for approximately two months and was laid off. Thereafter, appellee applied for and received unemployment compensation benefits and worked part time for Kroger polishing floors.
A hearing before the Administrative Law Judge was held on August 16, 1982, to deal with appellee’s request for a change of physicians from Dr. Blankenship. An independent evaluation by Dr. John L. Wilson was ordered which confirmed Dr. Blankenship’s rating of 15% and noted that Dr. Blankenship’s treatment of appellee was adequate. No formal opinion was entered and it was determined that appellee was not entitled to a change of physicians.
Another hearing before the Administrative Law Judge was held on June 2, 1983, to determine whether appellee was entitled to a change of physicians from Dr. Blankenship to Dr. Michael J. Weber. Because of appellee’s dissatisfaction with Dr. Blankenship’s treatment and his continuing pain and discomfort, he began seeing Dr. Weber on December 9, 1982. Appellee began treatment with Dr. Weber without consent of appellants and without the authorization of the Commission. Appellants refused to pay medical benefits in connection with Dr. Weber’s treatment. The ALJ again ordered an independent evaluation of appellee by Dr. Wilson. In his report dated August 18, 1983, Dr. Wilson stated that appellee’s healing period had ended and found his impairment to be 15% to the upper extremity as previously stated. On January 20, 1983, Dr. Weber diagnosed a probable anterior superior impingement syndrome. After an examination of appellee on June 28, 1983, Dr. Weber recommended hospitalization for a complete evaluation of appellee’s shoulder problem including an arthrogram and possible shoulder manipulation for adhesive capsulitis. Dr. Blankenship’s report of June 6, 1983, to the ALJ statecl his belief that appellee was not in need of any further treatment. The ALJ again determined that appellee had failed to prove by a preponderance of the evidence that there was a compelling reason or circumstance to justify a change of physicians. Appellee’s request was denied and the decision was appealed to the Full Commission.
The Commission determined that the treatment of appellee by Dr. Weber prior to September 9, 1983, was unauthorized and not the responsibility of appellants as appellee had not followed the statutorily prescribed procedure for effecting a change of physicians. The Commission, however, found a compelling reason or circumstance justifying a change of physicians after September 9, 1983, based upon the deterioration of the physician-patient relationship between appellee and Dr. Blankenship, appellee’s continuing pain and discomfort and Dr. Blankenship’s report of June 6, 1983, stating his belief that appellee was not in need of any further treatment.
Ark. Stat. Ann. § 81-1311, as amended by Act 290 of 1981 (Supp. 1983), provides in pertinent part:
If the employee selects a physician, the Commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the Commission that there is a compelling reason or circumstance justifying a change. If the employer selects a physician, the claimant may petition the Commission one time only for a change of physician, and if the Commission approves the change, with or without a hearing, the Commission shall determine the second physician and shall not be bound by recommendations of the claimant or respondent;
The above statute governs the method of requesting and granting a change of physicians depending upon whether the employee is seeking a change from a physician of his choice or from one of the employer’s choice. Appellants argue that the Commission’s opinion has misinterpreted the application of the above statute and that its opinion should be reversed. Based upon their interpretation of the above statute, appellants contend that appellee was only entitled to one change of physicians and that appellee has already had his one statutory change. They base this argument upon the supposition that this is a situation whére the employer has selected the physician and that the mutually agreed upon change from the company doctor to appellee’s family doctor, Dr. Thomas, who subsequently referred appellee to Dr. Blankenship, constituted appellee’s one change of physician. While appellants concede that the Commission correctly determined that past medical services provided by Dr. Weber were unauthorized, appellants contend that they should not be held responsible for medical services provided by Dr. Weber after September 9, 1983. We do not agree. This appeal involves appellee’s first petition to the Commission for a change of physicians. We do not view the mutually agreed upon change of physicians from the company physician to one of appellee’s choosing as his first and only change. While we do agree with appellants that the “compelling reasons or circumstances” burden is not applicable where the employer has initially selected the physician, the record reflects that there is substantial evidence to support the Commission’s finding that appellee was entitled to a change of physicians. Appellee has clearly met his burden of proof under either provision of Ark. Stat. Ann. § 81-1311.
Using the rule that we must view the evidence in the light most favorable to the action of the Commission, Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979), we think appellee’s testimony that he suffered continuing pain, Dr. Blankenship’s report stating that he had nothing further to offer appellee by way of treatment, the deterioration of Dr. Blankenship and appellee’s relationship and Dr. Weber’s opinion that appellee was in fact in need of further treatment are sufficient to support the Commission’s decision in this case.
Affirmed.
Cooper and Mayfield, JJ., agree.
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James R. Cooper, Judge.
In this criminal case; the appellant was charged with theft of property by deception in violation of Ark. Stat. Ann. § 41-2205 (Repl. 1977). After a trial by jury, she was convicted and sentenced to four years in the Arkansas Department of Correction and a fine of $5,000.00. From that decision comes this appeal.
The appellant was employed as the commercial bookkeeper at the Montgomery Ward store in Little Rock. During the time she was employed in this capacity, it came to the attention of another employee that there was a discrepency in the cash register used by the appellant. An investigation ensued and resulted in the charges of theft being filed against the appellant.
The appellant argues that the trial court erred in failing to grant her motion for a directed verdict at the close of the State’s case. Her grounds for the directed verdict were that the State had failed to eliminate every other reasonable hypothesis for the alleged theft. The appellant relies on Green v. State, 269 Ark. 953, 601 S.W.2d 273 (Ark. App. 1980), for the proposition that the appellant’s conviction cannot be sustained where the State failed to exclude every reasonable possibility that someone other than the appellant had the opportunity to have taken the money. We cannot agree with the appellant that the State failed in meeting its burden of proof. The State introduced evidence that showed the appellant had manipulated company records to conceal cash shortages. Although she was not observed taking the money or manipulating the records, the evidence presented was certainly adequate to present a jury question.
The appellant’s second point for reversal deals with the trial court’s rulings concerning expert testimony. Dr. Douglas Stevens testified concerning his examination of the appellant and the results of several tests which dealt with her mental capacity and mathematical abilities. The defense then called a certified public accountant, Mr. Rick Ruffin, and sought to elicit testimony from him that, based on Dr. Stevens’ testimony, and the nature of the embezzlement schemé, the appellant would not have been able to carry out the scheme. The trial court limited Mr. Ruffin’s testimony to stating the level of accounting or mathematical ability which he believed an individual would need to possess to successfully engage in the type of scheme the appellant was charged with. The trial court noted that Mr. Ruffin’s proposed testimony would invade the province of the jury. We hold that the trial court correctly limited Mr. Ruffin’s testimony.
In Ethridge v. State, 9 Ark. App. 111, 654 S.W.2d 595 (1983), this Court dealt with this issue and held that when the j ury can j ust as easily determine the fact question in issue from the opinion testimony before it, it is improper for an expert witness to, in effect, tell the j ury which result to reach. Here, the situation is similar. Mr. Ruffin was properly allowed to testify as to his opinion of the level of mental functioning it would take to conduct the scheme the appellant was accused of. Dr. Stevens had testified as to his opinion of the appellant’s abilities. To allow Mr. Ruffin to go further and state the appellant could not have been responsible for the acts with which she was charged would, we agree, indeed invade the province of the jury.
The appellant’s third point for reversal deals with the conduct of a spectator during the appellant’s trial. During the testimony of several of the State’s witnesses, Mr. William Terry, an official with Montgomery Ward, was observed nodding his head as if to signal the witness as to how to respond to the questions.. This was brought to the trial court’s attention, and a mistrial was requested. During a hearing in the judge’s chambers, the defense admitted that the testimony of the witnesses who were allegedly signalled was no different than that which came out during their discovery depositions, and defense counsel advised the trial court that the signaling, if it occurred, did not prejudice the appellant because the defense was able to effectively cross-examine the witnesses.
A mistrial is an extreme remedy which will be granted only when no other action by the court will remove prejudice or insure a fair trial. Also, the decision as to whether to grant a mistrial is within the sound discretion of the trial court and the trial court’s decision should not be disturbed unless an abuse of that discretion is shown. Brewer v. State, 269 Ark. 185, 599 S.W.2d 141 (1980). We believe that when the fact is considered that the appellant’s counsel admitted that she suffered no harm by the alleged acts of Mr. Terry, it is clear that the trial judge did not abuse his discretion in refusing to grant a mistrial.
Finally, the appellant argues that her conviction is not supported by substantial evidence. As we have discussed in Point I of the appellant’s argument, we fefel that there was a fact question presented for. the resolution of the jury. A motion for a directed verdict is a challenge to the sufficiency of the evidence, Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982), and the fact that we feel the denial of the directed verdict was proper, demonstrates that there is substantial evidence to support the verdict of the jury.
Affirmed.
Mayfield, CJ. and Cloninger, J., agree.
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James R. Cooper, Judge.
This appeal arises from a dispute between the appellants, who leased two buildings from the appellee for nursing home purposes, and the appellee lessor over the terms of the lease and option to renew. The chancellor declared the option to renew void for lack of definiteness, and enjoined the appellants from moving their nursing home business. From that decision, comes this appeal.
Around 1962, the appellee’s predecessor, J.O. Bennett 8c Sons, a family partnership, built two facilities to serve as nursing homes in Lonoke and Marvell. The homes were leased to Mrs. Mason Pennock, who operated them until 1969 when she and her partner subleased the premises to the appellants. In 1973 and 1978 the appellants leased the premises directly from the Bennetts. The 1973 lease provided for an option to renew for an additional five year term on the same terms as the 1973 lease, except for the rental. The 1978 lease contained the following language:
The second parties shall have the right and option to renew this lease upon terms and conditions and rentals to be agreed upon by the parties prior to the renewal date, which shall be compatible to similar facilities within the State of Arkansas.
In early 1983, the appellee agreed to sell the properties to a third party, subject to the lease. The appellants, at the same time, were making plans to expand other nursing home facilities which they owned and to transfer their State-allocated bed capacity from the leased homes to one in Cabot which they owned. That plan apparently began in 1980, but was stalled because of a moratorium on nursing home construction. Thus, in order for the expanded Cabot facility to utilize the Lonoke and Marvell bed capacity, those two homes would have to be closed. Neither the Lonoke nor Marvell homes met current construction requirements, but were allowed to operate under waiver. The waiver would be forever lost as to those homes if they ceased to be operated as nursing homes, absent remodeling to bring them into compliance with current standards. The appellee, fearful that the leased homes would be closed by the appellants, instituted this action, seeking to require the appellants to continue to operate the leased premises as nursing homes through the lease term, and to declare the alleged option void for indefiniteness.
For reversal, the appellants first argue that the option is valid, contrary to the chancellor’s finding that it was void because the terms of the renewal were not included in the option. Generally, courts will not supply missing terms in a lease when the parties have not stated in their agreement a definite bases to guide the court’s effort to effectuate the parties’ agreement. The Arkansas Supreme Court has held that “an option in a written lease to renew upon terms and conditions to be agreed upon is void for uncertainty.” Ferrill v. Collins, 225 Ark. 247, 281 S.W.2d 959 (1955). However, in Nakdimen v. Atkinson Imp. Co., 149 Ark. 448, 233 S.W. 694 (1921), the Court upheld an option which did not provide for the amount of the rental, but where the parties had agreed that a board of arbitrators would fix the rental. This method of fixing the rent was upheld because of its objective nature. The appellants argue that the language in the option which provides that the renewal is to be on terms “compatible to similar facitlities” in Arkansas is objective enough to guide the court in fixing the terms. We disagree. This option is fatally defective in that no definite method for determining the rental was established. As this Court has stated:
Where the annual rental is not agreed upon and the contract does not otherwise provide a manner for its definite determination, the contract does not meet [the test for definiteness].
Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (Ark. App. 1980).
Rental rates in Arkansas, according to the testimony, ranged from $55.82 per bed to $88.66 per bed. We cannot say that the chancellor’s decision not to select a figure within this range was wrong. Further, and perhaps more important, no terms of the renewal period were fixed. The chancellor’s decision was neither clearly erroneous, nor against a preponderance of the evidence, and therefore we must affirm. ARCP, Rule 52(a).
The appellants next argue that the chancellor’s injunction effectively requires them to forfeit their business, thus, it is alleged, resulting in a windfall to the appellees of over one million dollars. We disagree. The appellants own their business, and the appellee own its buildings and land free from the lease (which has expired), and the chancellor’s order simply protected the interests of both parties. The court found that the appellants should not be allowed to move the nursing home patients out of the leased premises, except in the ordinary course of business, and that decision was correct. The lease required that the appellants use the leased premises for nursing homes, and, because of the “grandfathered” status of the homes, moving the patients out would have caused a serious reduction in the fair market value of the leased premises.
Further, the spirit and purpose of the lease would have clearly been violated had the appellants been allowed to breach the lease, move out of he premises, and thereby destroy the usefulness of the premises as nursing homes.
The landlord-tenant relationship between the parties is over, the premises are free to be sold or leased by the appellee, and the assets of the nursing home business belong to the appellants. Both parties have substantial interests at stake which need protection, and the patients in the two nursing homes must be protected from unnecessary disruption. Therefore, we remand the case to the chancellor so that such orders as are necessary to ensure an orderly transition may be entered.
Affirmed, and remanded for further orders consistent with this opinion.
Cracraft, C.J., and Glaze, J., agree.
Supplemental Opinion on Denial of Rehearing November 28, 1984
679 S.W.2d 823
Appeal & error — record not fully developed — case remanded. — Where the record on an issue was not fully developed below, that point will be remanded to the chancellor for a decision.
Petition for Rehearing; denied.
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George K. Cracraft, Chief Judge.
The Arkansas State Highway Commission appeals from a jury verdict awarding damages to the Pearrows for the taking of a portion of their property for highway purposes. The Commission contends that the trial court erred in not striking the testimony of appellees’ expert witness because she had considered impermissible elements in her valuation of the property after the taking. The appellees cross-appealed contending that the trial court erred in not permitting their expert to testify with regard to a comparable sale made after the taking.
We find merit in the appellant’s contention and reverse and remand the case for a new trial. The appellees’ land was an irregularly shaped 16 acre tract lying just northeast of Bald Knob with easy access to the town along Highway 67. In 1974 the State Highway Department condemned approximately three acres of appellees’ property leaving a 10 acre tract still fronting on Highway 67 and severing without access a tract of PA acres. After completion of the Interstate, Highway 67 became a secondary road and the route via Highway 67 to appellees’ property was changed so as to contain a “dangerous double-S curve.!’
The appellees’ expert witness testified that based upon comparable sales for a period of years preceding the taking of the property with proper adjustment for natural appreciation in land values it was her opinion that the fair market value of the entire 16 acres before the taking was $6,000 per acre for a total of $96,000. She testified that in her opinion the value of the property after the taking was $10,966. It is her testimony as to the manner in which she arrived at the value of the 10 acre parcel after the taking which gives rise to the issue presented.
The expert testified that the highest and best use of the property before the taking was for commercial or light industrial purposes. She stated that some of the diminution in value was attributable to a reduction of the acreage of the tract to less than that usually desired for commercial or industrial purposes. Some diminution was attributable to a reduction in width and to the fact that the new highway had been raised 20 feet which caused drainage problems and a loss of visibility from town. She also took into consideration the fact that Highway 67 on which the property fronted had become a secondary road cut off from town. She considered some damage to the access because it now took longer to get to the tract from Bald Knob and now involved a dangerous curve.
She also stated that she had given consideration to the fact that the new highway had diverted the traffic and made the former highway a service road. On cross-examination she was asked the following questions:
Q. Now, you have testified that this property now is cut off from Bald Knob. That was one of the elements you considered in arriving at your damage of five thousand dollars ($5,000) an acre, is that right?
A. Yes, sir.
A. It’s been severed from the city. There is a barrier twenty (20) feet tall.
Q. Are you saying that you can’t go directly to Bald Knob, like you could before?
A. That’s correct.
Q. Now, it’s a little further to go, is that it?
A. It’s on a secondary road, and you are travelling in a curve.
Q. I wanted to .ask you about this secondary road business. Is that one of the elements that you took into consideration, in arriving at your five thousand dollar ($5,000) an acre damages?
A. It decreased the traffic pattern on that for commercial, yes, sir.
Q. You damaged that, and that is part of your five thousand dollar ($5,000) damages?
A. Yes, sir.
Q. That’s good. That’s the one I’m talking about of that five thousand dollars ($5,000) an acre damages, that you have attributed to the remaining lands, can you tell me how much of that five thousand dollars ($5,000) an acre you attributed to the fact that you have to go a little further to get to Bald Knob? Can you break it out?
A. Not into a dollar amount. I didn’t do that, sir.
Q. What about the fact that now the property fronts a secondary highway, with relocation of traffic? How much of the five thousand dollars ($5,000) an acre do you attribute to that?
A. I took that into consideration. But I did not break down a dollar amount and place that on there.
Q. You did consider those elements in arriving at your damages?
A. Yes sir.
MR. GOWEN: Judge, we have a motion with reference to her testimony.
The parties agree as to the rule of law to be applied but they disagree concerning its application. In Ark. State Hwy. Comm. v. Bingham, 231 Ark. 934, 333 S.W.2d 728 (1960) the court declared that a property owner has no vested right in the continuation of the flow of traffic past his property. Any diminution of value occasioned by a public improvement which diverts the main flow of traffic from in front of one’s premises is not compensable. The change in traffic flow is the result of a lawful act on the part of the authorities and it not the taking or damaging of property.' It was also pointed out in Bingham that the right to continued flow of traffic is not to be confused with the property rights of ingress and egress for which compensation may be awarded. Ark. State Hwy. Comm. v. Bowers, 248 Ark. 388, 451 S.W.2d 728 (1970).
The appellant contends that appellees’ expert’s testimony should have been stricken because in arriving at total just compensation she had considered an impermissible element — diminution in value due to diversion of traffic. The appellees contend that the court did not err in denying the motion to strike because the overall testimony of the witness indicates that she was referring to a reduction in value for commercial use due to change in the character of the land and because of damage to its access. From our examination of testimony we think it is clear that the witness attributed diminution in value to access difficulty, severance from the city by the raised level of the highway, and the reduction in size and width of the tract. She also considered and attributed some of the loss to the relocation of traffic. We cannot conclude that the answers on which the appellant’s argument is based were taken out of context.
The issue raised by the appellees on cross-appeal should be addressed because of the likelihood that it will arise on retrial. An objection was sustained to the testimony of appellees’ expert with regard to a comparable sale of property within 500 feet of an interchange where it was shown that the sale was consummated seven months after the condemnation proceedings on this property were undertaken. Based upon the proffer of that testimony we cannot conclude that it was objectionable. It is not the fact that a transaction occurs after the condemnation which makes some sales inadmissible. The question to determine is whether knowledge of location of the public improvement caused an inflated price to be given for the property. Ark. State Hwy. Comm. v. Griffin, 241 Ark. 1033, 411 S. W.2d 495 (1967); Ark. State Hwy. Comm. v. Littlefield, 247 Ark. 686, 447 S.W.2d 146 (1969). In both of those cases the court rejected testimony of purported comparable sales because they found that the evidence clearly established that the price of the property “sky-rocketed” when the proposed location of the Interstate became known. Those cases hold that the highway department should not be required to pay an enhanced value for property which was brought about solely by its own proposed improvement. It is only the enhancement in value which is brought about in anticipation or by reason of the proposed improvement which is to be excluded. If it can be shown that the enhancement in value of a particular piece of property was brought about by economic factors other than the proposed improvement, the fact that it was consummated close in point of time to the erection of the improvement is not conclusive.
The proffered testimony pertinent to this issue was based almost entirely on hearsay statements repeated by the witness. The objection made and sustained was not on grounds of hearsay. The witness testified that the property had been listed with her in 1974 at a price of $40,000 which was subsequently reduced to $32,000 and sold in April 1975. She testified that the purchaser had told her that the location of the interstate had no impact on the sale because he had been negotiating for the purchase of the property at that sale price for several years prior to the actual issuance of the deed. It was also shown that the price paid by this buyer did not exceed the figure which the witness had previously testified was the fair market value of other comparables.
If on retrial it is shown by competent testimony that the price paid by that buyer was not enhanced by knowledge of the location of the interstate, testimony with regard to that sale should be admitted.
Reversed and remanded.
Corbin and Glaze, JJ., agree.
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Donald L. Corbin, Judge.
Appellant, Ouachita Electric Cooperative Corporation, sued for the collection of past due electric bills in the amount of $37,676.80 for electricity furnished to St. Clair Rubber Company of Arkansas. Appellant sought to charge appellee, Evans-St. Clair, Inc., the purchaser of certain assets of St. Clair Rubber Company of Arkansas, with this responsibility. Appellant alleged below and here on appeal that the transfer of assets violated the Bulk Sales Act of Arkansas, Ark. Stat. Ann. §§ 85-6-101 — 109 (Add. 1961), and that the transfer was a fraudulent conveyance. The chancellor found to the contrary on both issues, but awarded judgment to appellant in the amount of $37,676.80 against St. Clair Rubber Company of Arkansas. We affirm.
On August 3, 1982, St. Clair Rubber Company of Arkansas (“St. Clair”), St. Clair Rubber Company located in Michigan (“St. Clair-Michigan”), National Acceptance Company of America (“NAC”) and Evans-St. Clair, Inc. (“Evans-St. Clair”) entered into an agreement whereby St. Clair and St. Clair-Michigan would transfer certain machinery, equipment, tools and other property they owned to Evans-St. Clair. In return for the transfer, Evans-St. Clair paid NAC $200,000.00 in cash and signed a promissory note to NAC in the sum of $500,000.00. NAC had previously made loans to St. Clair and St. Clair-Michigan totaling $2,244,524.21 and had a blanket perfected security interest in all the assets transferred to Evans-St. Clair which was cross-collateralized so that the assets of both St. Clair companies secured the full indebtedness. NAC agreed not to sue St. Clair, St. Clair-Michigan, or Mr. S. S. Livingstone, the prior owner and seller of St. Clair, if Evans-St. Clair defaulted on the $500,000.00 promissory note, and further agreed to release any and all security interest which it had in the remaining assets of St. Clair, St. Clair-Michigan and Mr. Livingstone upon payment of $1,544,524.21, a net reduction of indebtedness by $700,000.00.
No inventory was transferred as part of the asset purchase. Evans-St. Clair did receive an option to purchase the inventory at a price equal to 50% of the St. Clair companies’ book value, subject to the right of these companies to sell the inventory to anyone else at any time as part of thé transaction. If Evans-St. Clair had not purchased the inventory at the end of one year, the St. Clair companies had the right to demand that Evans-St. Clair purchase the inventory still on hand at its wholesale fair market value. At the date of trial, approximately 1/3 of the inventory had been used on an as-needed basis by Evans-St. Clair. The remaining 2/3’s of the inventory was still located at the Evans-St. Clair plant in East Camden and was identifiable as the St. Clair companies’ property. The value paid for the assets purchased was arrived at by Evans-St. Clair in reliance upon appraisals furnished by an appraisal company which had a good reputation and had been relied upon in the past by Evans Industries, the parent company of Evans-St. Clair. The representations of the St. Clair companies’ owner, Mr. S. S. Livingstone, were also relied upon in arriving at the amount of consideration to be paid. The machinery and equipment located in Michigan were appaised at a forced liquidation value of $167,787.00; the machinery and equipment in Arkansas were appraised at a forced liquidation value of $497,731.00, with $56,925.00 to be subtracted for the toxological boot equipment which was deleted from the transfer; and the real estate in Michigan conveyed was valued at approximately $100,000.00, based upon a three-year old appraisal. Evans-St. Clair negotiated for these assets as a whole package, and not as separate purchases. The allocation of purchase prices set forth in the Bills of Sale was made at the request of NAC, for its own internal accounting purposes.
Appellant contends that the transfer was in violation of the Bulk Sales Act. Ark. Stat. Ann. § 85-6-102 (Add. 1961), defines bulk transfers as follows:
(1) A ‘bulk transfer’ is any transfer in bulk and not in the ordinary course of the transferor’s business of a major part of the materials, supplies, merchandise or other inventory (Section 9-109 [§ 85-9-109]) of an enterprise subject to this Article [chapter],
(2) A transfer of a substantial part of the equipment (Section 9-109 [§ 85-9-109]) of such an enterprise is a bulk transfer if it is made in connection with a bulk transfer of inventory, but not otherwise.
(3) The enterprises subject to this Article [chapter] are all those whose principal business is the sale of merchandise from stock, including those who manufacture what they sell.
(4) Except as limited by the following section all bulk transfers of goods located within this state are subject to this Article [chapter].
Appellant Ouachita Electric Cooperative Corporation argues that a bulk transfer between appellees took place since a major part of the materials, supplies, merchandise and other inventory was sold as well as a substantial part of the equipment as evidenced by the Bill of Sale. Appellant also contends that the fact that title to the inventory did not pass immediately should not be decisive in a determination of a bulk transfer. Finally, appellant argues that although a transfer to a lien creditor in lieu of foreclosure would be within the provisions set out above, the facts in the instant case do not establish a transfer to NAC. We do not agree.
The provisions of the Bulk Sales Act are primarily for the protection of creditors of the seller and compliance with the Act is not compulsory, insofar as the seller is concerned, unless compliance is required by the buyer. Herrick v. Robinson, 267 Ark. 567, 595 S.W.2d 637 (1980). We believe the evidence clearly supports the chancellor’s finding that the transaction between appellees was not in violation of the Act. The trial court in the case at bar based its finding on the following evidence: (1) no inventory was transferred by the August 3, 1982, agreement; (2) on the day of trial, approximately 2/3’s of all the inventory on hand as of August 3,1982, agreement to transfer had not been purchased by appellee; (3) the 1/3 of the inventory which had been used was purchased by appellee on a daily basis, when needed in its industrial process, but not in bulk; and (4) the transfer was in settlement of a valid security interest, and did not harm the position of any unsecured creditors.
Ark. Stat. Ann. § 85-6-103(3) (Supp. 1983), provides in part: “The following transfers are not subject to this Article [chapter]: transfers in settlement of realization of a lien or other security interest.” NAC had a perfected security interest in all the assets purchased from St. Clair and St. Clair-Michigan, and the assets of both of the companies stood as collateral for an indebtedness which was undispu-tedly far in excess of their value. Evans-St. Clair paid $700,000.00 to NAC, and the St. Clair companies transferred the assets to Evans-St. Clair. NAC reduced these companies’ obligation to it by $700,000.00, and agreed not to sue or look to the St. Clair companies for payment in the event that Evans-St. Clair defaulted on the $500,000.00, note. The transfer was clearly in satisfaction of NAC’s security interest. Appellant in its brief cites Starman v. John Wolfe, Inc., 490 S.W.2d 377 (Mo. App. 1973), for the proposition that in order to come within the § 85-6-103(3) exception, the transfer should be made to the holder of the security interest a,nd not to a transferee for the benefit of the security interest holder. We agree with appellee that Starman, supra, cannot be properly interpreted for such a broad proposition, since in that case the consideration paid for the transfer was not used entirely to pay the superior lien held by the secured creditor, but rather was used to pay in part other parties for the benefit of the transferor, resulting in a preference to some creditors. Furthermore, in Starman, supra, there was no evidence in the record to support the proposition that the alleged secured creditor even had a security interest in the property transferred.
In American Metal Finishers, Inc. v. Palleschi, 20 U.C.C. Rept. Ser. 1283 (1977), the plaintiff complained that the transfer would not qualify under U.C.C. § 6-103(3) because the property transfer was made to a third person who assumed the indebtedness of the transferor with a secured creditor who held a security interest in the property transferred. The New York court disagreed, stating as follows:
The chief rationale of the Bulk Transfers article is the avoidance of the ‘major bulk sales risk’ of ‘[t]he merchant, owing debts, who sells out his stock in trade. . ., pockets the proceeds, and disappears leaving his creditors unpaid’ (citations omitted). But where the transfer is in settlement of a lien or security interest, there are no cash proceeds with which the seller could abscond. Thus, where the consideration is settlement of an indebtedness with no receipt of cash proceeds, the protective purposes of the Bulk Transfers article do not apply.
We see no reason to read subdivision (3) of § 6-103 of the Uniform Commercial Code so restrictively as to add a requirement that the transferee must be the holder of the security interest, thus ruling out transfer to one who in good faith takes over the position of the security holder. The interposition of such new party is not that of an officious volunteer; it serves a socially beneficial purpose of avoidance of foreclosure with its concomitant hardships to creditors, employees and the commercial community.
Similarly, we cannot say appellant in the instant case was prejudiced by the transaction. If St. Clair had closed its doors, NAC could have replevied the collateral and sold it in satisfaction of its security interest. If appellant had levied upon the collaterál, any proceeds from a sale would have. been subject to the prior security interest of NAC, which secured an indebtedness of $2,244,524.21. St. Clair could have transferred the property directly to NAC without any conceivable violation of the Bulk Sales Act.
The Bulk Sales Act of Arkansas does not purport to regulate agreements to sell inventory in the future. Here we have an option to purchase agreement for the sale of inventory in the future which is not a transfer of inventory and, therefore, is not subject to the Bulk Sales Act, since Ark. Stat. Ann. § 85-6-102(1) (Add. 1961), by its terms applies only to “transfers in bulk.” The Bulk Sales Act does not purport to regulate agreements for the sale of inventory as opposed to actual transfers of inventory because until the inventory is actually sold, title to it remains in the seller and is at all times subject to being levied upon by the seller’s creditor. An agreement to sell the inventory gives the purchaser no property interest in the inventory, but is merely an executory contractual right. Accordingly, we find no merit to this contention.
Appellant also contends that the trial court erred in finding that the transfer was not a fraudulent conveyance pursuant to Ark. Stat. Ann. § 68-1502 (Repl. 1979). This statute provides as follows:
Every conveyance or assignment, in writing or otherwise, of any estate or interest in lands, or in goods and chattels, or things in action, or of any rents issuing therefrom, and every charge upon lands, goods or things in action, or upon the rents and profits thereof, and every bond, suit, judgment, decree or execution, made or contrived with the intent to hinder, delay or defraud creditors or other persons of their lawful actions, damages, forfeitures, debts or demands, as against creditors and purchasers prior and subsequent, shall be void.
Fraud is never presumed, but must be affirmatively proved, and the burden of proving fraud is upon the party who alleges it and relies on it. Rees v. Craighead Inv. Co., Inc., 251 Ark. 336, 472 S.W.2d 92 (1971). In a suit to set aside a fraudulent conveyance, the allegation of fraud must be shown by a preponderance of the evidence. Killian v. Hayes, 251 Ark. 121, 470 S.W.2d 939 (1971). It has also been held that while fraud may be established by circumstantial evidence, the circumstances must be so strong and well connected as to clearly show fraud. Stringer v. Georgia State Savings Assoc. of Savannah, 218 Ark. 683, 238 S.W.2d 629 (1951). Badges or indica of fraudulent conveyances include insolvency or indebtedness of the transferor, inadequate or fictitious consideration, retention by the debtor of property, the pendency or threat of litigation, secrecy or concealment, and the fact that disputed transactions were conducted in a manner differing from usual business practices. Harris v. Shaw, 224 Ark. 150, 272 S.W.2d 53 (1954).
In the case at bar we cannot say that the finding of the chancellor that the transfer was not fraudulent is against the preponderance of the evidence. The assets transferred were the subject of a perfected security interest in favor of NAC which secured an indebtedness of 12,244,524.21 of St. Clair and St. Clair-Michigan. The assets purchased were nego tiated as an entire package and not as separate parcels. While the Bill of Sale for the Arkansas assets showed approximately $440,000.00 of assets being transferred at a stated purchase price of $225,000.00, the Michigan Bill of Sale showed assets having a liquidation value of only $167,787.00 and real property having a value of only $100,000.00 which was purchased from St. Clair-Michigan at a price of $475,000.00. All of the assets of both St. Clair companies were pledged to secure the $2,244,524.21 indebtedness to NAC. The allocation of the monies as reflected on the Bills of Sale was at the suggestion of and for the internal accounting purposes of NAC. Furthermore, appellant offered no evidence at trial which would contradict the appraised values of the property transferred.
The $700,000.00 was paid to the lienholder, NAC, in the form of $200,000.00 cash and a $500,000.00 promissory note. It was not paid to St. Clair. Consideration flowed to St. Clair in that NAC agreed not to look to St. Clair for payment in the event that Evans-St. Clair defaulted under the terms of the $500,000.00 promissory note, and further agreed to release the assets of St. Clair upon payment of $ 1,544,524.21, which constituted a reduction in St. Clair’s liability to NAC by $700,000.00. A conveyance by a debtor to a third party of mortgaged property is supported by adequate consideration if the third party grantee agrees to pay the debts owed by the grantor and which are secured by the property. First State Bank of Corning v. Gilchrist, 190 Ark. 356, 79 S.W.2d 281 (1935).
In Sieb’s Hatcheries v. Lindley, 111 F.Supp. 705 (W.D. Ark. 1953), the district court quoted from a prior Arkansas decision as follows:
The creditor who seeks to set aside a conveyance as fraudulent must show that his debtor has disposed of property that might otherwise have been subjected to, the satisfaction of his debt.
Here, the record is barren of any evidence which would demonstrate that the lien of NAC was not perfected, or that the value of the assets transferred exceeded the amount secured by the assets.
The transfer would not have been fraudulent unless an inadequate consideration was established. The preference of one creditor over another does not in itself make the transfer to the preferred creditor void or voidable as a fraudulent conveyance. Nicklaus v. Peoples Bank & Trust Co., Russellville, Ark., 258 F.Supp. 482 (E.D. Ark. 1965), aff'd, 369 F.2d 683 (8th Cir. 1966). The consideration in this case was clearly adequate. Appellant presented no evidence which would indicate that a greater price could have been obtained. In determining fraudulent intent on the part of the parties to a transaction, mere inadequacy of price for consideration is insufficient; it is only when the inadequacy of price is so gross that it shocks the conscience, and furnishes satisfactory and decisive evidence of fraud, that it will be sufficient proof that the purchase is not bona fide. Fluke v. Sharum, 118 Ark. 229, 176 S.W. 684 (1915). We find no merit to this point. In conclusion, we cannot say that the chancellor’s findings were clearly erroneous (clearly against the preponderance of the evidence), A.R.C.P. Rule 52(a), and we affirm.
Affirmed.
Cracraft and Glaze, JJ., agree.
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Tom Glaze, Judge.
This appeal is from a chancellor’s denial of appellant’s petition to change custody of the parties’ minor children. Appellant’s only point for reversal is that the chancellor abused his discretion in denying the petition. Appellant contends that because the appellee mother has herpes genitalis, a change of circumstances has occurred virtually mandating a change in custody. We disagree and affirm the chancellor’s decision.
Appellant Ronnie Bailey and appellee Debra Ann Bailey were divorced in July of 1979, and custody of the parties’ two children was awarded to the appellee mother, with reasonable visitation rights awarded the appellant father. In his petition to change custody, the appellant alleged that appellee had remarried, that her actions indicated emotional instability and that because she had been ill, she “may well be unable to care for the children, both from a physical and emotional perspective.”
At the hearing, Debra Bailey (now Nichols) testified that her doctor discovered that she had herpes in May of 1983, when she went into the hospital for another reason and a culture was run that was positive for herpes. Debra testified that she did not know how, when or where she contracted herpes but that doctors told her it could be dormant for as long as fifteen years without being active. She stated that as far as she knows, she could have contracted it from appellant.
Appellee’s doctor, Hayes G. Jackson, testified by deposition that in May of 1983, he was treating appellee for acute cervicitis, a bacterial infection, when he got a positive culture for herpes. Dr. Jackson testified that herpes is a viral infection, transmitted practically altogether by sexual intercourse, and that it would be “practically unheard of” to transmit it to other people without sexual activity. He said it was possible, but highly unlikely, to get herpes from bedding or an open lesion. He stated that he knew of “no medical reason why a reasonably careful person could not have children in . . . [his or her] home if they had herpes.” He said that he does not describe herpes as a highly contagious disease.
Appellant contends in his brief that appellee is infected with a contagious, viral infection which could be transmitted to the parties’ children, and that the chancellor’s decision to leave custody with the mother was an abuse of discretion. Appellant contends “it is common knowledge that a mother, in caring for her children, is necessarily intimate with them physically to some extent,” and that “the one person who should not have a contagious viral infection is the primary care provider for minor children.”
The welfare of the child is the polestar in every child custody case. Hickey v. Hickey, 9 Ark. App. 281, 658 S.W. 2d 411 (1983). The same standard applies to a change in custody. Sweat v. Sweat, 9 Ark. App. 326, 659 S.W.2d 516 (1983). A decree with respect to the custody of a child is subject to modification in light of circumstances that have changed since rendition of the original decree. Van Winkle v. Van Winkle, 7 Ark. App. 53, 644 S.W.2d 311 (1982). The party seeking a change in custody has the burden of showing such changed conditions as would justify a modification. Id.
In the instant case, the chancellor found that the mere fact of a possible infection primarily transmitted by sexual activities did not have that much significance as far as the children are concerned, and we agree. Based upon the testimony of the parties and the medical testimony of appellee’s doctor, we cannot see that he was clearly erroneous in denying appellant’s petition for a change of custody under these circumstances.
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Tom Glaze, Judge.
This is a review of an order of the Arkansas Employment Security Board of Review denying unemployment compensation benefits to claimant because she had unduly restricted her availability by her salary demand for full-time work.
Claimant is a Greenbrier resident who works for the Internal Revenue Service in Little Rock on a “call as needed basis.” She began working in this manner on September, 1977, and at the hearing before the Appeal Tribunal, she testified that she was continuing to do so. This appeal arises from a denial of benefits for a period covering from September 5, 1980, until November 10, 1980, when she was recalled to work.
The claimant testified that she had been seeking other employment in the Conway area which paid in the range that she was making with IRS, SI4,000. She told the office at Conway that she would take a job which paid as little as $12,000. She stated that some of the jobs which she learned of through ESD paid only $3-50 per hour. A job she checked on with the Forestry Service paid only $7,000 annually. She applied with Chicopee where her husband works because they could commute together. She applied with Safeway and Kroger in Conway. She also applied with an accounting firm in Conway but never heard from them again.
In its January 13, 1981, decision, the Appeal Tribunal found that the claimant was disqualified from receiving benefits under Section 4(c) of the Arkansas Employment Security Law, Ark. Stat. Ann. § 81-1105 (c) (Repl. 1976), which provides that claimants will be eligible for benefits if they are unemployed, physically and mentally able to perform suitable work, available for such work, and doing those things that a reasonably prudent individual would be expected to do to secure work.
The Board of Review found that the claimant was not fully able and available for suitable work and fully attached to the full-time labor force. The Tribunal noted that the claimant had worked for three years for this employer on a call as needed basis. The only other employment during that time was a temporary position with the Census Bureau. Additionally, the claimant was found by the Board to restrict her availability by her salary demand for full-time work.
The claimant contends that she is able and available for work and that $ 12,000 is not unreasonable for the type of work she is seeking. The record contains an advertisement offering an annual salary of $12,000 for a bookkeeper in the Conway area, which the claimant attached to her Petition for Appeal to the Board of Review. She states that she works part-time for the IRS only because she cannot find other permanent full-time work.
The court recognizes that there is no talismanic percentage figure that separates a substantial reduction in salary from one that is not. Each case must be measured by its own circumstances. Ship Inn, Inc. v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, 50 Pa. Cmwlth. 292, 412 A. 2d 913 (1980).
Not every wage demand will be considered good cause for the refusal of a job offer. In Duvall v. Daniels, 1 Ark. App. 51, 613 S.W. 2d 116 (1981), we held that a claimant was not fully available and actively seeking work because she was unwilling to leave her intermittent job as a poultry inspector unless she was offered a full-time job which paid her more money per year. In that case there was substantial evidence to find she was not available to pursue a full-time position elsewhere.
However, a claimant who is offered a job similar to his previous position at a salary less than what he had previously received can refuse it and not be termed unavailable for work unless the reduction is relatively insignificant. In Johnson v. Administrator, Division of Employment Security, 166 So. 2d 366 (La. App. 1964), the claimant’s prior earnings in her customary occupation had been $35.00 weekly for an appreciable length of time. She was offered work which paid a net of merely $25.00 weekly from which an additional weekly $3.00 had to be paid for transportation so that the work offered paid less than two-thirds of the claimant’s customary prior wages. That court held that the work offered was not suitable if the wages are substantially less than the prior earnings of the claimant in his primary occupation from which he has become unemployed.
It appears from the record that the Appeal Tribunal and the Board of Review omitted from their consideration in the instant case whether the work which was offered to claimant was suitable in view of claimant’s prior training, experience and earnings. If the claimant could have found employment to which her training and experience entitles her, with appropriate salary, she should have been granted a reasonable opportunity to make that quest. Under Ark. Stat. Ann. § 81-1106 (c) (D) (1) (Repl. 1976), these factors must be considered by the Board of Review when determining whether proffered work is suitable. Section 81-1106 (c) (D) (1) (Repl. 1976) provides:
In determining whether or not any work is suitable for an individual and in determining the existence of good cause for voluntarily leaving his work under subsection (a) of this section, there shall be considered among other factors, and in addition to those enumerated in paragraph (2) of this subsection, the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, the length of his unemployment, his prospects for obtaining work in his customary occupation, the distance of available work from his residence and prospects for obtaining local work. [Emphasis supplied.]
As is provided in § 81-1106 (c) (D) (1) (Repl. 1976), another factor the Board must consider is the length of the claimant’s unemployment. The period of unemployment in question here is only nine weeks, which is a relatively short period of time. As the period of unemployment continues, a job offer at a salary lower than the claimant earned previously may become suitable, even though the lower salary may not have been suitable at the time the claimant first became unemployed. Thus, after a period of fruitless searching for a job, it may then be reasonable for the Board to expect the claimant to moderate her salary expectation. See, Johnson v. District Unemployment Compensation Board, 408 A. 2d 79 (D. C. 1979).
Although it does not appear that the Board considered the factors set forth in § 81-1106 (c) (D) (1) (Repl. 1976), there is sufficient evidence in the record to decide this case in view of the legal principles and statutory requirements noted above. Here, the claimant was unemployed for only a short period of time, was making $ 14,000 per year in her part-time job, and was offered employment which would involve a 50% salary reduction. Under these facts, we hold that she was not offered suitable employment and is not disqualified for the weeks in question.
Reversed.
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Tom Glaze, Judge.
This appeal involves an action for specific performance wherein the Crawford County Chancery Court ordered the appellant, Thomas Humann, to convey certain real estate to the appellees, Richard Renko and Suzanne Renko. In 1974, the appellant and appellees apparently discussed the prospects of purchasing land in Arkansas, and they travelled from Kansas City, Missouri, to Crawford County, Arkansas, to view eighty acres near the community of Chester. Later, in May, 1974, Humann signed an agreement to purchase the eighty acres for the sum of @14,000, and to pay monthly mortgage payments of @138.33. Title to the property was taken in Humann’s name alone. At the time of the closing of the real estate transaction, the Renkos were residing in Kansas City, Missouri.
Although Humann denies that there was any specific agreement entered into with the Renkos prior to his purchase of the eighty-acre tract, Humann and the Renkos apparently discussed the prospects of entering into a partnership relative to the purchase and maintenance of the eighty-acre tract. In any event, the Renkos moved onto the property in February, 1976, and they began paying one-half of the monthly payment, i.e., $69-17 per month, each check payable to Humann with the notation “For mortgage” and the name of the month. Whatever agreement that was reached between the parties, there was nothing reduced to writing.
In early 1979, the Renkos requested that Humann execute the documents necessary to convey title to one-half of the property to them pursuant to their alleged oral agreement, viz., that the Renkos and Humann were partners in the purchase of the tract. Humann refused.
The Renkos then filed this action seeking specific performance of the alleged oral agreement. The chancery court decreed that the parties had entered into an oral agreement, and under the terms of the agreement, Humann and the Renkos were joint owners of the eighty acres. The court further held that the parties had agreed to a division of the eighty acres, i.e., the Renkos were to receive title to a ten- and thirty-acre tracts which were specifically designated by a survey and Humann was to retain title to the remaining forty acres of the original eighty-acre tract. Humann brings this appeal, raising two points for reversal: (1) The chancellor erred in granting specific performance where there was not sufficient evidence to indicate a definite and certain agreement between the parties; (2) Any agreement between the parties was unenforceable because it was in violation of the statute of frauds.
The issues posed by appellant are controlled by the rule that to remove an oral contract from the statute of frauds, it is necessary that the quantum of proof be clear and convincing both as to the making of the oral contract and its performance. Hudspeth v. Thomas, 214 Ark. 347, 216 S.W. 2d 389 (1949), and Pfeifer v. Raper, 253 Ark. 438, 486 S.W. 2d 524 (1972). We agree with the chancellor that the appellees met their burden of proof to establish an oral contract of sufficient definiteness. Moreover, the evidence is also clear and convincing that appellees made improvements of a valuable nature which were sufficient to remove the oral agreement from the statute of frauds. This case is before us largely because appellant challenges the chancellor’s findings relative to the weight and sufficiency of the evidence. Unless the chancellor’s findings are clearly erroneous, we must affirm. Rule 52, Arkansas Rules of Civil Procedure.
The overwhelming inference deduced from the record as a whole is that the appellant and appellees were partners in the purchase of the eighty-acre tract. Aside from the testimony of the parties, the witnesses called by the appellees were neighbors and testified that they understood from both appellant and appellees that they were each one-half owners of the tract. For instance, Mr. Austin testified that he was told by Humann and the Renkos that “they were buying the land together and it was to be split up in the future.” Austin said that Humann agreed that the Renkos were buying one-half and Humann one-half of the tract. Mr. Rosenzweig, who testified he had known the parties since 1974 or 1975, stated that he specifically remembered Humann referring to the Renkos as one-half owners of the property. Last, Mr. Landry, who had known the parties for four years and went with Humann when he paid for the land, testified that he understood the parties were partners. When confronted with the testimony of these witnesses on cross examination, appellant never directly contradicted their statements that he and the Renkos were partners. To give further credence to appellees’ contention that a partnership existed between them and Humann, a letter written by Humann was introduced at trial as Plaintiffs’ Exhibit 3 wherein Humann referred to Richard Renko as “my partner.”
Admittedly, as is true in so many oral agreements, the parties did not agree on whether an agreement existed, much less on any of the terms of the contract. The chancellor did find, however, the terms of the sale agreement signed by Humann were definite and that the Renkos were one-half obligors under that agreement. The fact that the Renkos did not pay one-half of the down payment when the sale agreement was executed by Humann is of little significance so long as their liability is fixed for one-half of that amount. Appellant also argues the agreement is indefinite because it does not mention who is to pay the real estate taxes. Again, the Renkos’ one-half obligation as partners is fixed as to taxes as well, and the chancellor was not required to insert terms or write the parties’ contract in so holding. Appellant further contends that there was no agreement regarding the division of the property. Suffice it to say, the proof clearly shows there was a discussion between the parties concerning a division of the eighty-acre tract into three tracts; two tracts totalling forty acres were to belong to the Renkos and the remaining forty acres were Humann’s. There was, indeed, a conflict in the testimony of Humann and the Renkos, but considering the entire record, we are unable to reverse the chancellor’s holding that an agreement concerning a division of the land was reached between the parties.
Appellant finally argues that the appellees did not render substantial part performance of the oral agreement, and therefore, the agreement is in violation of the statute of frauds. We disagree. The Renkos moved from Kansas City, Missouri, onto the subject property to live in 1976. They cleared the property, built fences, dug a well, provided electricity and telephone service, improved a road and built a house. Their neigbors, Austin and Landry, testified that they assisted in these improvements, viz., Austin helped the Renkos build the house and Landry testified he helped the Renkos and Humann fence their boundaries.
After a review of the record, we conclude that the evidence is sufficient to support the chancellor’s findings, and we, therefore, affirm his decision.
Affirmed.
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Lawson Cloninger, Judge.
The Lakewood Addition in North Little Rock contains several lakes and other recreational facilities for the exclusive use of persons in the area. The lakes and other facilities are owned by appellee General Properties, Inc., and, for a nominal rental, leased to appellee Lakewood Property Owners Association, a nonprofit corporation formed in 1951. Appellee Lakewood Recreational Improvement District No. 4 was created to assess and collect annual installments for the maintenance of the lakes and recreational facilities within the boundaries of the Addition.
On October 26, 1978, appellee North Little Rock City Council granted a petition by certain property owners within the Addition and established Lakewood Recreational District No. 4.
Appellants Henry Ketcher, et al, property owners in the District, commenced this action for an injunction and declaratory judgment, alleging defects in the formation of the District. On the day of trial, May 7, 1980, appellants sought to amend and amplify their original complaint to allege that some of the lands owned by appellee General Properties, Inc. had been dedicated to the public in 1935 and that appellants have been deprived of due process in that they were not given personal notice of the formation of the proposed district. The trial court ordered appellants’ amended complaint stricken under Rule 15(a), Ark. Rules of Civil Procedure, and that ruling of the trial court has not been appealed.
Appellees and appellants filed motions for summary judgment and at the hearing, testimony was taken on all disputed points. The trial court granted appellees’ motion for summary judgment and denied appellants’ motion and all of its claims for relief.
On this appeal, appellants argue three points for reversal:
1. The method of assessment proposed in appellees’ petition for creation of the District is unconstitutional.
2. The trial court was in error, in determining whether a majority of the property owners in the District had signed the petition for formation, in that it failed to exclude properties alleged to be owned by General Properties, Inc., but which had in fact been dedicated to public use in 1935.
3. Notice requirements relating to the creation of the District are violative of due process and equal protection.
The decision of the trial court is affirmed in part and reversed in part.
The trial court specifically found that the method of assessment proposed by the District is not violative of Article 16, § 5, or Article 19, § 27 of the Arkansas Constitution, but we do not find it necessary to determine the correctness of that ruling. The issue of the method of assessment proposed was not properly before the trial court and is not before this Court on appeal, for the reason that it is only a proposal never adopted by an authoritative body.
Ark. Stat. Ann. § 20-109 (Repl. 1968) provides that in the ordinance creating an improvement district the city council shall appoint three owners of real property therein as commissioners, who shall compose a board of improvement for the district. In the ordinance creating Lakewood Recreational Improvement District No. 4, the North Little Rock City Council properly appointed three commissioners, but the record in this case does not reflect that any action was taken thereafter by the commissioners.
Ark. Stat. Ann. § 20-401 (Repl. 1968) provides that as soon as the board of improvement shall form a plan, and shall have ascertained the cost of the improvement, it shall report its findings to the city council. The city council shall then appoint three electors of the city, who shall constitute a board of assessment of the benefits to be received by each parcel of land by reason of the proposed improvement.
When the Board of Improvement created by the North Little Rock City Council proceeds to ascertain the needs of the District and the City Council then appoints members of the Board of Assessment, the-Board of Assessment can at that time ascertain and assess benefits to be received by each parcel within the district. The Board of Assessment may conceivably adopt the method of assessment proposed by the owners of the property who petitioned for the creation of the District, or the method proposed may be ignored.
The Board of Assessment may or may not consider the method proposed by the petitioning owners, but until the Board of Assessment ascertains the needs of the District and assesses benefits there can be no question of the correctness of the assessments or the method employed brought before the courts.
It is significant that appellants did not appeal that portion of the trial court which struck appellants’ amended complaint. The trial court, however, did find that appellee General Properties, Inc. is the owner of the lands proposed to be conveyed to the District. The trial court further found that the petition to form the District expresses the consent of a majority in assessed value of the owners of real property within the District. Appellants urge on this appeal that if the value of lands dedicated to the public in 1935 is excluded, the petition fails to have the consent of a majority in assessed value of the owners.
Although the trial court struck the amended complaint of appellants, the Court would have been justified in considering the portion of the amended complaint regarding the alleged dedication in 1935 as only a clarification or amplification of appellants’ original complaint. The trial court, also, would have been justified in finding that the issue was tried by the implied consent of the parties. Rule 15 (b), Ark. Rules of Civil Procedure. We consider the issue on this appeal because it was presented in the trial court with the implied consent of appellees.
In 1935 Justin Matthews, Sr. dedicated by Bill of Assurance three acres of the property within the confines of Lakewood Recreational Improvement District to the public forever as public parks and playgrounds. In 1947 the successor in title to the lands of Justin Matthews, Sr. executed and recorded an instrument whereby the purported 1935 dedication was withdrawn and cancelled before there had been any acceptance made by the public or in the public’s behalf. There is nothing in the record to indicate that any objection to the withdrawal and cancellation was made prior to 1980.
The right of an owner of land dedicated to public use to revoke and cancel such dedication at any time before its acceptance has been uniformly recognized. In Lester v. Walker et al, 177 Ark. 1097, 9 S.W. 2d 323(1928), it was held that when land is dedicated, “the revocation may be accompanied by an affirmative act in recalling it, or by abandonment ...” In Mebane v. City of Wynne, 127 Ark. 364, 192 S.W. 221 (1917), it was held that there having been no acceptance by or for the public, the dedication may become extinct by the express withdrawal by the owner, or by his death before acceptance or by the lapse of time.
In the case before the Court appellee General Properties, Inc. is the successor in title to the lands of Justin Matthews, Sr., and the purported dedication to the public in 1935 was effectively withdrawn and cancelled in 1947 by the then-owner before acceptance by the public. The three acres was therefore properly included in determining the assessed valuation of property owned by the signers of the petition to form the District.
The issue of the constitutionality of the notice requirement relating to the creation of the District was not before the trial court, and it cannot be considered by this Court. Sugg v. Continental Oil Co., 270 Ark. 882, 608 S.W. 2d 1 (1980). At the trial appellants attempted to raise the constitutional question regarding notice to the property owners by way of amendment to the complaint. The trial court found that prejudice to the appellees would result if appellants were allowed to amend their complaint and raise a new issue on the day set for trial.
The decree of the trial court is reversed on its finding that the method of assessment proposed in the petition for creation of the District is not unconstitutional, because the question was not properly before the Court. The decree is in all other respects affirmed.
Cooper and Glaze, JJ., not participating.
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John Mauzy Pittman, Judge.
Charles Luningham has appealed from the entry of summary judgment for appellee, Arkansas Poultry Federation Insurance Trust, in this action to recover medical benefits. We affirm in part and reverse and remand in part.
Appellant is a poultry grower and has been a member of the Arkansas Poultry Federation for many years; as a member, he has been able to participate in a group health benefit plan that the federation obtained from appellee. In 1994, appellant incurred medical bills totalling more than $50,000.00. Appellee paid more than $24,000.00 and denied the balance of appellant’s claim. Appellant then sued appellee. He stated in his complaint that, although he did not have a copy of his benefit plan, he believed that his coverage was the same as that shown on a brochure labelled Exhibit “A” to appellant’s complaint, which set forth the terms of appellee’s Producer Option Health Plan. Appellant alleged in his complaint that, under the terms of that plan, appellee owed him $24,573.17.
In its answer, appellee denied that it owed appellant any money or that appellant had coverage under the Producer Option Health Plan. It admitted, however, that, “at various times, the [appellant] has been a member of the [appellee’s] group plan.” In appellee’s answers to interrogatories, it stated that appellant had had various policies with appellee over the years and that the plan became self-funded in 1981. Appellee stated that, as shown in Exhibit “A” to the answers to interrogatories, Don Weeks, senior vice president of the plan’s administrator, Fewell & Associates, Inc., sent a letter on July 26, 1991, to the insured poultry producers, including appellant, announcing changes in the plan’s benefits. Appellant also attached as Exhibit “B” to the answers to the interrogatories the plan booklet reflecting the benefits as announced in the July 26, 1991, letter. Appellee stated that these items were furnished to appellant.
In Interrogatory No. 2, appellant asked the following: “What material changes, either in benefits or premiums, have been made to [appellant’s] original policy with said [appellee]? Please attach copies of each and every said material change made to [appellant’s] policy or plan aforementioned.” Appellee objected to this interrogatory and referred appellant to Exhibits “A” and “B.” Appellee asserted that the changes noted in Exhibits “A” and “B” were in effect at the time of appellant’s loss in 1994. Appellee also objected to appellant’s request for copies of every notice sent to him about material changes in the plan. In its answers to interrogatories, appel-lee stressed that appellant was not covered by the Producer Option Health Plan and had never applied for coverage thereunder. In its answers to Interrogatories Nos. 12 and 13, appellee discussed why it had determined certain expenses to be ineligible for coverage.
On December 1, 1994, appellant moved for an order compelling appellee to answer Interrogatories Nos. 1, 2, 3, 4, 5, and 13. On December 13, 1994, Randy Coleman was relieved as counsel for appellee, and John Hardin was substituted as its counsel.
On April 4, 1995, appellee ■ moved for summary judgment. Appellee argued that appellant was a participant in the 1981 Growers Health Benefit Plan and that, although he was notified that he could apply for coverage under the Producer Option Health Plan, he had never applied for benefits thereunder. Appellee further argued that appellant’s claims in the complaint were not covered by the 1981 plan. In support, appellee attached the affidavit of Randy Coleman, who stated that, since January 1, 1981, appellant has been a participant under the 1981 Growers Health Benefit Plan, which has been modified from time to time. He also stated that this plan is between the Arkansas Poultry Federation as sponsor and appellee as provider and that appellee and the federation have agreed to changes in the terms of the plan; as a participant, appellant was subject to these modifications. He stated that appellant never applied for health benefits under the Producer Option Health Plan and that the claims for which this suit was brought were not covered by the 1981 plan. Attached to this motion were copies of the apparently unmodified 1981 plan and a letter from Fewell & Associates to the self-employed poultry producers in 1990 offering the Producer Option Health Plan.
In response, appellant argued that he had never received notice of the Producer Option Health Plan and that, if he had, he would have applied for that coverage. Additionally, appellant argued that he had never agreed to and had never been notified of any major benefit modifications of the 1981 plan. In his affidavit attached to his response, appellant stated:
4. There is not much difference in the premiums for the two plans; I understand it’s only about $35.00 a month, and if I had known I could have the 1991 plan, I would have applied for it if it is a better plan, but I didn’t even know it existed until after I had my heart attack when the defendant wouldn’t pay some of my claims. I should have the coverage they sold to me and the coverage I’ve paid for all these many years, and they should have given me the opportunity to apply for the 1991 plan if it is better than the 1981 plan that the defendant says I still have, but either policy should pay more than what’s been paid.
5. Mr. Coleman also says they have made changes in my benefits, but they didn’t tell me about any changes and I never got any letters or anything letting me know about any changes; I wouldn’t have agreed to them changing my coverage to something less than what I have had in the past and what I have been paying good money for ever since the ’sixties. I never agreed to less benefits, and I would have gotten other insurance somewhere else if they had told me they were going to give less benefits, but they never told me. They used to have just one policy and it had good benefits, but they say they now have two policies, so the new one must have better benefits since the premium is higher than the other one which they say I still have; but they never let me apply for the new one, and this is not right for them to tell me I can’t have the new one since I didn’t apply for it. I didn’t apply for it because I couldn’t apply for it since I didn’t know they had it.
6. The plan that I bargained for and paid insurance premiums for all these many years should cover all of the items I am now claiming in my complaint, whether it is the 1981 plan or the 1991 plan. Under the 1981 plan, which the insurance company says I now have, I would have to pay $2100.00 of my medical expenses due to my heart attack and the defendant should pay the balance. My total expenses were $50,995.84, my part would be $2100.00 and the defendant’s part would be $48,895.84. They have only paid $24,152.67, so they owe me $24,743.17 even under the 1981 plan which they insist I still have.
At the hearing on the motion for summary judgment, appellant argued that, under basic principles of contract law, appellee could not modify the insurance contract without notifying appellant and without obtaining appellant’s agreement. He also argued that whether and how the parties had actually modified the policy and whether his claims were covered under it were questions of fact.
Appellant further argued that, because Mr. Coleman had served as counsel for appellee, the court should not consider his affidavit in support of the motion for summary judgment. The trial judge noted that Mr. Coleman wrote the affidavit a few months after being removed as counsel and held that his affidavit could properly be considered. On April 20, 1995, the circuit judge entered summary judgment for appellee.
Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Johnson v. Harrywell, Inc., 47 Ark. App. 61, 885 S.W.2d 25 (1994). In considering a motion for summary judgment, the court may also consider answers to interrogatories, admissions, and affidavits. Muddiman v. Wall, 33 Ark. App. 175, 803 S.W.2d 945 (1991). When the movant makes a prima fade showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. Johnson v. Harrywell, Inc., 47 Ark. App. at 63. In an appeal from the granting of summary judgment, we review facts in the light most favorable to the appellant and resolve any doubt against the moving party. Id. Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Id. On appellate review, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of a motion left a material question of fact unanswered. Id.
Appellant argues that the circuit judge erred in holding that appellee could unilaterally, without consent from or notice to appellant, modify the terms of the 1981 plan. Appellant argues that, since appellee is exempt under Ark. Code Ann. § 23-61-502 (Repl. 1994) from the requirements of the Arkansas Insurance Code, the basic rules of contract law, which require both parties to agree to a modification of a contract, apply. It is true that both parties must agree to the modification of a contract and to the terms of modification. Moss v. Allstate Ins. Co., 29 Ark. App. 33, 776 S.W.2d 831 (1989). Accord Leonard v. Downing, 246 Ark. 397, 438 S.W.2d 327 (1969). In Afflick v. Lambert, 187 Ark. 416, 418-19, 60 S.W.2d 176, 177 (1933), the court stated:
It is ... a well-setded rule of this court that any parties who can make a contract can rescind or modify it by mutual consent. If they are capable of making the contract in the first instance, they may by mutual consent modify it in any manner.
Whether there was a modification ... was a question of fact for the chancellor.
See also Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985).
Here, there is no case directly on point. However, as appellee points out, the group health agreement is between the Arkansas Poultry Federation and appellee; appellant is simply a plan participant. Appellee argues, therefore, that appellant’s reliance on general principles of contract law is misplaced and points out that a similar issue arose in Neely v. Sun Life Assurance Co. of Canada, 203 Ark. 902, 159 S.W.2d 722 (1942). There, the supreme court held that a group policy can be canceled by mutual agreement of the insurer and the employer because it is a third-party beneficiary contract; the employee, who pays a part of the premium, will be bound by their action. Accord Clapp v. Sun Life Assurance Co. of Canada, 204 Ark. 672, 163 S.W.2d 537 (1942). In Hendrix v. Republic National Life Insurance Co., 270 Ark. 955, 959, 606 S.W.2d 601, 603 (Ark. App. 1980), we stated: “Arkansas law contemplates that a group insurance policy is a contract between the employer and the insurer and not a contract between the employee and the insurer....”
Here, there is no dispute that the parties to the 1981 plan, appellee and the federation, agreed to modify the plan. Therefore, we do not believe that appellee was required to obtain appellant’s agreement before putting such modifications into effect.
Appellant further argues that whether the purported modifications to the 1981 plan exclude all of his claimed expenses is a question of fact. Appellant points out that, in its answer to Interrogatory No. 13, appellee only stated that an amount of $11,381.30 was ineligible. Appellant argues that his claim for an additional $13,157.87 has not even been addressed by appellee. Appellant also argues that, on its face, the 1981 plan provides such coverage. (Appellee apparently attached a copy of the original 1981 plan to its motion for summary judgment. However, it attached a copy of the modified 1981 plan to its answers to interrogatories.) Appellant contends that whether these modifications exclude all of his claims are questions of fact that should have been tried. Appellee responds that appellant failed to raise the issue of how the benefits were actually calculated to the trial court. Although the 1991 letter from Mr. Weeks explains the modifications to the 1981 plan, we do not believe that appellee proved that, as a matter of law, all of appellant’s claims are excluded from coverage. In fact, from our review of the record, it is not possible to determine precisely how appellee applied the terms of the modified plan to deny each expense claimed by appellant. We therefore hold that appellee failed in its initial burden of making a prima facie showing of entitlement to judgment as a matter of law and that the summary judgment must be reversed and remanded in part for trial on this issue.
Additionally, appellant has raised the issue of whether it was proper for Mr. Coleman to sign an affidavit in support of the motion for summary judgment because he had acted as counsel for appellee. In Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), the supreme court stated that an attorney for a party cannot testify in person or give such testimony by affidavit. Accord McIntosh v. Southwestern Truck Sales, 304 Ark. 224, 800 S.W.2d 431 (1990). However, at the time he signed the affidavit, Mr. Coleman no longer represented appellee in this proceeding. We agree with the circuit judge that his affidavit could be properly considered by the court.
Affirmed in part; reversed and remanded in part.
Stroud and Neal, JJ., agree.
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MELVIN Mayfield, Judge.
By opinion dated December 20, 1995, this court dismissed the appellants’ appeal in this case. See 51 Ark. App. 188, 912 S.W.2d 938 (1995). The appellants have filed a petition for rehearing, and the court has denied the petition. I dissent.
I also dissented from the opinion that dismissed the appeal in the first instance; however, I want to more fully explain my position by this present dissent.
I start by pointing out that the majority opinion which dismissed the appeal did so on the basis that the appellants filed their appeal from “the final order entered in this case on January 26, 1994,” and the majority opinion held that this order was “simply the chancellor’s confirmation and approval of a commissioner’s report of the sale of real and personal property in foreclosure.”
The majority opinion then stated that the foreclosure sale followed the entry of a consent decree entered on November 16, 1993, in a suit which had been consolidated with this suit.
The majority opinion then stated that the November 16, 1993, consent decree gave judgment in rem against certain real and personal property but that ownership of a few of the items of personal property had also been determined in a previous order in that case entered on April 30, 1993.
Then the majority opinion stated that the appellants’ argument in the present appeal “is based upon alleged errors in the April 30, 1993, decision” and “in order to determine whether appellants should have filed a notice of appeal within thirty days of the April 30, 1993, decision, it is first necessary to decide whether that decree was a final order.”
The majority opinion then discussed the elements necessary to constitute a final judgment or decision and concluded that “the April 30, 1993, decision was not a final order for purposes of appeal” because all the claims in the consolidated case remained for trial.
Then the majority opinion stated: “Next, it is necessary to determine whether the November 16, 1993, consent decree was final for purposes of appeal.” The opinion said that a decree granting foreclosure and placing the court’s directive into execution is final and appealable and it would be necessary to file a notice of appeal within thirty days from the entry of such an order but that a decree confirming a foreclosure sale is also a “separate, final, and appealable order, and a notice of appeal must also be given within thirty days of that decree.”
The majority opinion then administered the coup de grace with the following conclusion:
We therefore hold that the April 30, 1993, decision was not a final order from which appellants should have filed a timely notice of appeal. However, the only issues for which a timely appeal has been taken relate to the confirmation and approval of the report of the foreclosure sale, and appellants have not alleged error in that sale. Because appellants did not file their notice of appeal within thirty days from the entry of the November 16, 1993, consent decree, which was final and appealable, this court lacks jurisdiction to hear this appeal. [Emphasis added.]
The point in the appellants’ petition that I want to discuss first is that the November 16, 1993, decree, which the majority opinion says is the final and appealable order from which the appellants should have appealed, was a consent decree. The appellants’ petition for rehearing states that “Arkansas has never allowed an appeal from a consent decree before this case.” They cite Saleski v. Boyd, 32 Ark. 74 (1877), and Martin v. Houck, 79 Ark. 95, 94 S.W. 932 (1906), for this proposition. See also The McCall Company v. Smith, 117 Ark. 118, 173 S.W. 845 (1915), and Cave v. Smith, 101 Ark. 348, 142 S.W. 508 (1912). They also point out that Rule 2 of the Arkansas Rules of Appellate Procedure does not specifically mention consent decrees but that Rule 54(a) of the Arkansas Rules of Civil Proce dure provides that judgment “as used in these rules includes a decree and any order from which an appeal lies.” Because it does not appear that an appeal may be taken from a consent decree, I would hold that the appeal from the January 26, 1994, decree was a viable appeal in this case.
In the second place, I agree with the appellants’ argument that they are not attempting to appeal from the November 16, 1993, decree granting foreclosure, but their appeal from the January 26, 1994, decree brings up for review any intermediate order (which would include the April 30, 1993, order) involving the merits and necessarily affecting the orders and rulings in that separate but consolidated case. See Arkansas Rules of Appellate Procedure 2(b).
I would grant rehearing and address the merits of the points raised on appeal.
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Wendell L. Griffen, Judge.
Walter Creson has appealed the August 22, 1994, decree entered in the Sebastian County Chancery Court on October 12, 1994, that divided real and personal property between him and his ex-wife due to their divorce. Appellant also challenges the chancellor’s findings regarding child support that he has been directed to pay. We have conducted a de novo review of this case, and conclude that the chancellor’s findings are not clearly erroneous. Therefore, we affirm the decree.
The parties were married on November 27, 1976, were separated on April 25, 1994, and are parents of two children named Ellen Creson (born September 27, 1977) and Caleb Creson (born May 27, 1980). Appellee filed for divorce on May 11, 1994, on the grounds of general and personal indignities, and was granted a divorce upon her petition. She was awarded custody of the children, and appellant was ordered to pay child support at the rate of $102.00 per week. The divorce decree also dissolved the tenancy by the entirety by which the parties held their marital residence, and granted appellee possession and use of the residence until any of three events occurs: (a) the youngest child graduates from high school; (b) appellee ceases to live in the residence; or (c) appellee cohabits there with someone to whom she is not married. In any event, the decree provides that the residence will be sold with the equity being divided equally. Appellee will receive credit for one-half of the principal reduction that occurs from the time of entry of the decree until the sale of the residence. Appellee was awarded title to the 1987 Honda Accord automobile that was debt-free; appellant was awarded title to the 1992 Toyota truck that was subject to a debt of almost $10,000, and the parties were awarded joint ownership of the 1980 Dodge Omni automobile driven by their daughter.
One aspect of appellant’s challenge to the property distribution made by the chancellor pertains to $3,800 that has been described as “inherited property.” Appellant inherited approximately $27,000 after his parents died. The money was placed in a joint account in the names of appellant and appellee. When the divorce decree was issued, approximately $3,800.00 remained in the account. Appellant argues that the chancellor erred in finding that this sum became joint property that could be distributed equally between the parties upon their divorce.
Appellant’s contention requires that we determine whether he produced clear and convincing evidence that he did not intend to bestow a gift of the inheritance money to rebut the presumption of gift that arises whenever one spouse places property in a joint account with the other spouse. Lofton v. Lofton, 23 Ark. App. 203, 745 S.W.2d 635 (1988). Similarly, the law presumes that when personal property is placed in the names of both husband and wife, the property is held by them as tenants by the entirety. Boggs v. Boggs, 26 Ark. App. 188, 761 S.W.2d 956 (1988). To support a finding that such property is “separate property” for purposes of property distribution upon divorce, the party seeking to rebut either presumption must present clear and convincing evidence that the property was separately owned. In either event, the requirement of clear and convincing evidence means that the proponent seeking to rebut the presumption must do so by proof so clear, direct, weighty and convincing that the fact finder is able to come to a clear conviction, without hesitation, of the matter asserted. Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction respecting the allegation sought to be established. Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159, 893 S.W.2d 344 (1995). In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), we defined clear and convincing evidence as:
evidence by a credible witness whose memory of the facts about which he testifies is distinct, whose narration of the details is exact and in due order, and whose testimony is so direct, weighty, and convincing as to enable the fact finder to come to a clear conviction, without hesitation, of the truth of the facts related.
36 Ark. App. at 199-200.
We agree with the chancellor that appellant failed to produce clear and convincing evidence to rebut the presumption, and therefore conclude that the chancellor’s finding is not clearly erroneous. The record shows that although appellee did not deposit or withdraw funds from the joint account that contained the $3,800 balance, appellant engaged in several actions that support a finding that he either bestowed a gift of the money to appellee, or created a tenancy by the entirety in it. He deposited the money in a joint account with her after his mother died. When the parties later decided to refinance the residence that was acquired during their marriage and, therefore, held by them as a tenancy by the entirety, appellant withdrew $22,000 of the money from the joint account and paid it toward the refinancing. He contends that this money was separate property because appellee agreed that he would be repaid that amount whenever the residence was sold. Appellee concedes that she told him that the money would be repaid when the resale occurred. The chancellor, however, found that the funds had been so intermingled as to become a gift. We do not consider that finding to be clearly erroneous given that the record shows that the “inheritance money” was deposited in a joint account and was deliberately invested in the marital residence by the refinancing transaction. There was also proof that appellant used money from the joint account on other purchases, such as video equipment, which became marital property. We hold, therefore, that the chancellor’s finding that the $3,800 balance should be divided equally is not clearly erroneous.
We uphold the chancellor’s finding on this point, mindful that the parties testified at trial to an agreement between them that appellant would be repaid the $22,000 that was used from the joint account to refinance their marital residence. Appellant argues that their agreement was clear and convincing proof that the money was separate property. While appellee conceded that she agreed that the $22,000 would be repaid when the marital residence was resold, she argues that this agreement was merely to accommodate appellant and avoid further discussions. The chancellor had this proof before him when he made the finding regarding the joint account, and he resolved the credibility questions concerning it. We do not find his reasoning clearly erroneous. Indeed, appellant’s argument is unconvincing when one considers that he took admittedly separate property inherited from his parents, deposited it in joint property— an account — with appellee, then withdrew $22,000 of it to invest in more joint property — their residence — that he knew was property held as a tenancy by the entirety.
Appellant also challenges the chancellor’s decisions concerning the use of the marital residence, and the distribution of automobiles that the parties own. As stated earlier, appellee was awarded possession of the residence until the younger child completes high school, she (appellee) ceases living in the residence, or she cohabits there with someone to whom she is not married. In any event, the residence shall be sold, the equity divided equally, and appellee is to be credited with half the reduction on the principal owed from the date of the divorce decree until the date of sale. Appellant argues that because the outstanding indebtedness is only $22,000, appellee could conceivably make a substantial reduction in the principal during this time period that would effectively increase her financial position, while appellant will not receive a similar benefit from the rent that he pays for his residence over that time span. He contends that, upon the divorce, the chancellor should have directed that the residence be sold, and that the sale proceeds be divided equally so that the parties could each use them to acquire their own residences.
It is true that all marital property is to be divided equally between the divorcing parties pursuant to Ark. Code Ann. § 9-12-315(a)(1)(A), and that the chancellor must state in the order or decree dealing with the property division why property is not distributed equally. However, the residence is property that was held as a tenancy by the entirety, a fact conceded by counsel for appellant during oral argument. As such, that estate was automatically dissolved when the final decree was rendered, unless the chancellor specifically provided otherwise, pursuant to Ark. Code Ann. § 9-12-317 (Supp. 1995).
In this case, subject to the conditions already mentioned, the chancellor gave appellee possession of the marital residence. We find no error in that decision, or in the property distribution whereby appellee will be credited with the reduction in the principal owed on that property before the proceeds of its sale are divided' between the parties, whenever the sale occurs. Appellee does receive a benefit, to some extent, that appellant will not enjoy. However, she must also bear a burden that he does not undertake. The chancellor decreed that appellee shall be responsible for all mortgage payments, taxes, insurance, and upkeep costs for that property during the time that she enjoys possession. Those costs are predictable insofar as the mortgage payments and taxes are concerned, less predictable as far as insurance costs are concerned, and wholly unpredictable concerning upkeep. Whether the costs will involve plumbing bills incurred because of frozen water pipes, repairs to the residence after a natural disaster, expenses incurred to maintain the appearance and marketability of the residence, or any of the other foreseeable events incidental to home ownership, the chancellor has placed the entire burden of meeting them on appellee. The decree does not require appellant to contribute any part of those costs, either at the time they are incurred or by debiting his share of the equity whenever the house is sold. If those costs exceed whatever benefit appellee is deemed to gain from the property distribution method adopted by the chancellor, appellant has no obligation to even the burden. We do not find that result clearly erroneous.
We also find no error in the chancellor’s decision awarding appellee the Honda Accord that was debt-free, while awarding appellant the Toyota truck with its indebtedness. We do not view Ark. Code Ann. § 9-12-315 (Supp. 1995) to compel mathematical precision in property distribution, only that marital property be distributed equitably. The chancellor is vested with a measure of flexibility in apportioning the total assets held in the marital estate upon divorce, and the critical inquiry is how the total assets are divided. See Canady v. Canady, 290 Ark. 551, 721 S.W.2d 650 (1986). The chancellor is given broad powers, under the statute, to distribute all property in divorce cases, marital and non-marital, in order to achieve an equitable distribution. Smith v. Smith, 32 Ark. App. 175, 798 S.W.2d 442 (1990). The vehicle that appellant was awarded has the burden of its indebtedness and the benefit of being a 1992 model, contrasted to the 1987 model vehicle that appellee was awarded. The chancellor was entitled to take that issue, among others, into account when making the property distribution, and we do not find his decision to be clearly erroneous.
Finally, appellant argues that the chancellor miscalculated his take-home pay, and that the miscalculation resulted in an inflated child support payment. The chancellor based the decision to require child support payments of $102.00 per week after analyzing appellant’s wage earnings over a thirty-one-week period of time. Appellant contends that the chancellor should have used a twelve-week period to determine his earnings for purposes of the child support award. The two methods produce a twelve dollar difference per week in the child support obligation ($102.00 per week using the thirty-one-week calculations versus $90 per week using the twelve-week method).
The amount of child support lies within the sound discretion of the chancellor, and his finding will not be disturbed on appeal, absent a showing that he abused his discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The chancellor made the child support order after receiving evidence of appellant’s earnings from his job, as well as proof that he earned income from separate property held with his sisters. We find no abuse of discretion in the decision to consider the longer period of thirty-one weeks in order to obtain a better perspective of appellant’s earnings.
Affirmed.
Jennings, C.J., and Robbins, J., agree.
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JOHN B. Robbins, Judge.
On January 8, 1992, a felony information was filed against appellant Kenneth Fletcher in Pulaski County Circuit Court, charging him with incest and rape. The information alleged that, over a period from May 12, 1985, until December 31, 1989, Mr. Fletcher engaged in sexual intercourse or deviate sexual activity with his adopted daughter. Pursuant to a plea arrangement, Mr. Fletcher pleaded guilty to incest and was sentenced on March 13, 1992, to ten years in the Arkansas Department of Correction.
On April 13, 1992, Mr. Fletcher was charged with four counts of incest in Lonoke Circuit Court. The information alleged that he engaged in sexual intercourse or deviate sexual activity with his adopted daughter on May 12, May 26, June 27 and November 19 of 1989. Mr. Fletcher moved to dismiss the charges, arguing that the Lonoke County charges were barred by former jeopardy because of his guilty plea and sentence in Pulaski County for con duct that occurred during the same time period. The Lonoke County Circuit Court denied Mr. Fletcher’s motion to dismiss, and after a bench trial, he was found guilty of incest and sentenced to ten years imprisonment on each of the four counts. These sentences were to run concurrent, but consecutive to the ten-year sentence he received in the Pulaski County conviction.
Mr. Fletcher now appeals his convictions from Lonoke County. For reversal, he argues that the trial court erred in denying his motion to dismiss. Specifically, Mr. Fletcher contends that the Lonoke County charges were barred by double jeopardy, as well as the doctrines of collateral estoppel and res judicata. We find no error and affirm.
Prior to his conviction in Lonoke County Circuit Court, Mr. Fletcher agreed to certain stipulations. It was stipulated that he and the victim’s mother were married in June 1975, and that the three lived together as a family until December 1989. Mr. Fletcher adopted his wife’s daughter and began making sexual advances toward her when she was nine years of age. When the victim was approximately fifteen years of age, Mr. Fletcher began having sexual intercourse with her on a repeated basis. This sexual activity occurred in Pulaski County for about two years before Mr. Fletcher moved his family to Lonoke County in November 1988. While in Lonoke County, Mr. Fletcher had further sexual relations with the victim, and several of these incidents were recorded on video tapes. The victim lived with Mr. Fletcher in Lonoke County until December 1989, and Mr. Fletcher admitted to having sexual intercourse with the victim on May 12, May 26, June 27, and November 19 of that year.
For his double jeopardy argument, Mr. Fletcher cites the Fifth Amendment of the United States Constitution and Article 2, section 8, of the Arkansas Constitution, both of which guarantee that no person shall be twice put in jeopardy of fife or liberty for the same offense. He contends that the incest against his adopted daughter was a single continuing offense, which was committed over a period of years in both Pulaski and Lonoke Counties, and that his guilty plea in Pulaski County encompassed all of his incestuous activity. Arkansas Code Annotated section 16-88-108(c) (Repl. 1993) provides:
(c) Where the offense is committed partly in one county and pardy in another, or the acts, or effects thereof, requisite to the consummation of the offense occur in two (2) or more counties, the jurisdiction is in either county.
Mr. Fletcher argues that, because his crime was a continuing one and occurred in both counties, Pulaski County rightfully assumed jurisdiction pursuant to the above statute. He submits that double jeopardy considerations barred any further prosecution.
In addressing Mr. Fletcher’s double jeopardy argument, this court is aware of the fact that, pursuant to Ark. Code Ann. § 5-1-112(2) (Repl. 1993), a former prosecution resulting in a conviction is an affirmative defense to a subsequent prosecution for the same offense. We are also mindful of Ark. Code Ann. § 5-1-113(1)(B) (Repl. 1993), which provides that, after a conviction, a subsequent prosecution for a different offense is barred if the alleged offense was based on the same conduct giving rise to the conviction. However, in the instant case Mr. Fletcher’s convictions in Lonoke County were not for the same offense committed in Pulaski County. Nor were the Lonoke offenses based on the same conduct for which he was convicted in Pulaski County. Therefore, we reject Mr. Fletcher’s double jeopardy argument.
Incest is defined by Ark. Code Ann. § 5-26-202 (Repl. 1993), which provides that “A person commits incest if, being sixteen (16) years of age or older, he purports to marry, has sexual intercourse with, or engages in deviate sexual activity with a person he knows to be...[a] stepchild or adopted child....” Contrary to Mr. Fletcher’s contention that incest is an ongoing crime for which he can only be prosecuted once, a reading of the above statute indicates that one commits the crime of incest each time he engages in sexual intercourse with an adopted daughter. In Smith v. State, 296 Ark. 45, 757 S.W.2d 554 (1988), the supreme court held that, unless a statute defines criminal activity as a “continuing course of conduct,” a person may be prosecuted under the statute more than once if the crime has been repeated over a period of time. The incest statute at issue has no provision suggesting that a person who violates the statute may be prosecuted only once because the crime involves a “continuing course of conduct.” Similarly, the supreme court held that rape is not a continuing offense but rather a single crime, see Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), and we find by analogy that this rule applies to incest. Therefore, Mr. Fletcher could be prosecuted for each offense that he admitted to committing in Lonoke County, given that these were not the same offenses and did not relate to the conduct for which he was convicted in Pulaski County.
Mr. Fletcher makes much of the fact that, in Pulaski County, he was charged with committing incest through December 1989, at which time the victim resided with him in Lonoke County. He asserts that, as such, he was under the assumption that his guilty plea in Pulaski County must have covered any and all incestuous activity. We disagree because the Pulaski County information charged Mr. Fletcher with committing incest “in Pulaski County,” and he pleaded guilty to this charge. Indeed, Mr. Fletcher stipulated before the Lonoke County Circuit Court that he had engaged in sexual intercourse with the victim in Pulaski County before moving to Lonoke County. In addition, he acknowledged that he had sex with her in Lonoke County on four specific occasions. Because incest is not a continuing crime for which only one charge can be brought, Pulaski County Circuit Court had no jurisdiction over these four counts. Rather, these charges were for separate offenses committed in Lonoke County, and Lonoke County Circuit Court properly exercised its jurisdiction.
Mr. Fletcher’s remaining argument is that the trial court erred in refusing to grant his motion to dismiss because the second prosecution was barred by collateral estoppel and res judicata. We agree with Mr. Fletcher’s assertion that collateral estoppel and res judicata apply to criminal proceedings. See Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990). However, in the instant case the issues and claims brought in Lonoke County were entirely independent of the issues and claims decided in the Pulaski County proceedings. The Pulaski County case involved acts of incest committed in that county; the Lonoke County case pertained to four specific offenses which occurred in Lonoke County. For this reason, Mr. Fletcher’s final argument fails.
Affirmed.
Cooper and Stroud, JJ., agree.
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Judith Rogers, Judge.
Quality Truck Equipment Company has appealed from a judgment in the amount of $54,750.00 entered against it for appellee, Mike Layman d/b/a Layman Seed Company, following a jury verdict. The only issue on appeal is whether the jury verdict is supported by substantial evidence. We hold that it is and affirm.
In 1990, appellee leased a Stahly field applicator, which is a large air-activated fertilizer applicator, from Mid-South Ag Equipment, Inc., in Memphis, Tennessee. The lease included an option to purchase the machine. Appellant assembled the chassis for the machine and sold it to Mid-South Ag, which, in turn, added the spray system and leased the truck to appellee. Appellee used the applicator without mishap during the spring and fall of 1990 and exercised the option to purchase in December of that year.
In the spring of 1991, the applicator began breaking down with severe problems in the rear axle. The first time that the rear axle broke, appellee submitted an accident claim to his insurance carrier, which ultimately paid that repair bill. When appellee notified Mid-South of the breakdown, Gary Reed, Mid-South’s representative, directed appellee to tow the applicator to Jones-boro, Arkansas. Mr. Reed assured appellee that the problem would be taken care of and that the applicator was covered by warranty. It took one day to get the truck towed to Jonesboro. Appellee was told that he would be contacted the next day, but the time passed. After eight or nine days, appellee was told of the rear axle problem. Appellee again contacted Mid-South and was advised to turn it in on the insurance policy and not to worry about it. The applicator was down for repairs twelve to thirteen days.
Appellee used the applicator on June 6, 1991. After covering 40 acres, the rear end failed again. Appellee called Town & Country, the company which warranted the repaired machine. A person was sent to the location and the rear end was pulled and taken to Jonesboro. The next day a new rear end was installed.
In April of 1992, while on a job, the applicator began making a loud popping sound in the rear end. Appellee tried to drive the truck to Lepanto, which is three miles away, but the rear end exploded. That day, which was a Sunday, he called J&O Diesel. J&O came that afternoon and pulled the rear end out of the applicator. The rear end was taken to Truck Parts Specialists in Memphis, which rebuilt it the next day. Monday night J&O and appellee met on the side of the road where the applicator had been sitting and put the truck back together. Appellee called Mid-South on Monday and made them aware of the problem.
In October of 1992, the applicator broke down again. J&O diesel came again and pulled the rear end out while the machine sat in the field. The rear end was taken to Truck Parts, where it was rebuilt.
The applicator went down again in November of 1993, and appellee called Diesel Services Unlimited, a repair shop in Hughes.
In May 1994, appellee sued appellant and Mid-South for breach of warranty. Mr. Layman testified that he lost a total of $68,775.00 in business because of the rear end failures over a four-year period and expended a total amount of $9,961.51 in repairs. The jury awarded appellee $73,000.00 and apportioned fault as follows: Mid-South Ag — 15%; appellant — 75%; appellee — 10%. The circuit judge then entered judgment for appellee against appellant in the amount of $54,750.00.
On appeal, appellant argues that the verdict is not supported by substantial evidence because appellee did not mitigate his damages. Appellant admits that appellee incurred damages for the repairs but argues that it should be liable for no more than eight days of lost profits at $2,450.00 per day because appellee did not promptly repair the field applicator each time that it broke down.
On appeal from a jury verdict, this court views the evidence in the light most favorable to the appellee and affirms if that evidence is substantial. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 311, 902 S.W.2d 760 (1995). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable and material certainty; it must force the mind to pass beyond suspicion or conjecture. Minerva Enters., Inc. v. Howlett, 308 Ark. 291, 295, 824 S.W.2d 377 (1992).
When a party seeks to recover anticipated profits under a contract, he must present a reasonably complete set of figures to the jury and not leave the jury to speculate as to whether there could have been any profits. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. at 312. Lost profits must be proven by evidence showing that it was reasonably certain the profits would have been made had the other party carried out its contract. Id. While lost profits will not be allowed as damages if the trier of fact is required to speculate as to the fact or amount of profits, less certainty is required to prove the amount of lost profits than is required to show that profits were lost. Tremco, Inc. v. Valley Aluminum Prods. Corp., 38 Ark. App. 143, 145, 831 S.W.2d 156 (1992). Loss may be determined in any manner which is reasonable under the circumstances. Id. at 146. With respect to breach of warranty, lost profits are held to be foreseeable if they are proximately caused by and are the natural result of the breach. Id. The question of damages, both as to measure and amount, is a question of fact. Carter v. Quick, 263 Ark. 202, 210, 563 S.W.2d 461 (1978).
The doctrine of avoidable consequences limits the amount of recoverable damages. It provides that a party cannot recover damages resulting from consequences which he could have avoided.by reasonable care, effort, or expenditure. Beardsley v. Pennino, 19 Ark. App. 123, 126, 717 S.W.2d 825 (1986). It has often been stated that a plaintiff must use due diligence to minimize his damages and must do nothing to aggravate his loss. Gibson v. Lee Wilson & Co., 211 Ark. 300, 310-11, 200 S.W.2d 497 (1947). “[W]here a party is entitled to the benefit of a contract, and can save himself from loss arising from a breach thereof at a small expense or with reasonable exertions, it is his duty to do so, and he can only recover such damages as he could not thereby prevent.” Curtner v. Bank of Jonesboro, 175 Ark. 539, 541, 299 S.W. 994 (1927). Accord Wisconsin & Ark. Lumber Co. v. Scott, 167 Ark. 84, 87, 267 S.W. 780 (1924).
The determination of whether one has acted reasonably in mitigating damages is, however, a question of fact. Crain Indus., Inc. v. Cass, 305 Ark. 566, 577, 810 S.W.2d 910 (1991); Western Grove School Dist. v. Strain, 288 Ark. 507, 510, 707 S.W.2d 306 (1986); Coomer v. National Credit Corp., 282 Ark. 299, 301, 668 S.W.2d 521 (1984). See also Harris Constr. Co. v. Powers, 262 Ark. 96, 105, 554 S.W.2d 332 (1977); Beardsley v. Pennino, 19 Ark. App. at 127. Further, the burden of proving that a plaintiff could have avoided some or all of the damages by acting prudently rests on the defendant, not only on the question of damages for failure to avoid harmful consequences, but also on the question of the amount of damage that might have been avoided. Id. at 126-27.
Appellant argues that the rapidity with which appellee managed to have the equipment repaired the second and third times that it broke down shows that appellee unreasonably delayed getting the equipment repaired the first, fourth, and fifth times it broke down. Appellant also argues that the testimony of its witness, Mike Kelly, that repairs usually take about half a day, supports its position. Appellee points out, however, that Mike Kelly admitted that he had never encountered any axle problems as were involved in this case and did not testify as to how long it should take to repair such problems. In fact, appellant offered no testimony in support of its defense that appellee took too long in repairing the equipment.
Further, appellee testified that, when the equipment first broke down, he contacted Mid-South’s agent, Gary Reed, who told him to tow the truck to the nearest authorized dealer, which was in Jonesboro, and that appellee reluctantly followed Mr. Reed’s advice. According to appellee, when he got the truck to Jones-boro, Mr. Reed informed him that he had talked to Terry Stahly, appellant’s owner, who said that the truck was under warranty and that there would be no problem. Appellee said that, although Mr. Reed told him that they would get back with him “tomorrow,” the problem dragged on.
We are troubled by the scant amount of evidence submitted by appellee regarding the reasonableness of his efforts to promptly repair the equipment. Nevertheless, the burden rested upon appellant to prove that appellee could have avoided most of these damages, and this it failed to do. Accordingly, we hold that the amount awarded by the jury is supported by substantial evidence.
Affirmed.
Pittman and Mayfield, JJ., agree.
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Wendell L. Griffen, Judge.
Appellants, Congo Stove, Fireplace & Patio, Inc., and California Compensation Insurance Co., challenge a decision by the Workers’ Compensa tion Commission that found appellee Edward Rickenbacker was entitled to benefits pursuant to Arkansas Code Annotated section 11-9-505 (a) (Repl. 2002). Appellants contend that the decision is contrary to existing statutory and case law and that it is not supported by substantial evidence. We hold that substantial evidence supports the Commission’s decision that appellee proved entitlement to compensation benefits. Thus, we affirm.
Factual and Procedural History
While working in the employ of appellants, appellee sustained an admittedly compensable injury to his left shoulder on February 5, 2000. Appellee was subsequently diagnosed with left shoulder strain. The parties stipulated that the injury was com-pensable, and that appellants paid appellee temporary total disability benefits and medical benefits through April 13, 2000, except for two days that appellee tried to work in February.
On February 15, 2000, appellee’s physician released him to work with restrictions of no heavy lifting or heavy use of the upper extremity. Appellee reported to work on that date and was assigned to feather-dust furniture and sweep the floor. He testified that sweeping the floor aggravated his shoulder and that he could not physically continue to perform the work after February 16, 2000. Appellee explained that sweeping the floor involved pushing a broom, which required him to use his left shoulder. He testified that his job duties also required him to move barbecue grills, which also hurt his shoulder. On cross-examination, appel-lee acknowledged that when he made his employer aware of the difficulties he was experiencing, his employer told him to just sweep around everything. Following the second day of his return to work appellee contacted his employer and stated that he was still in pain and needed to go back to the doctor. Appellee did not return to work and appellants continued to pay temporary total disability benefits.
On March 9, 2000, appellee was seen by Dr. Charles Pearce, an orthopedic surgeon, who diagnosed appellee with left trape-zius strain with trigger point and a possible partial tear of the left deltoid. Dr. Pearce ordered an MRI, and indicated in a medical note that appellee was unable to work. An MRI was performed on March 16, 2000, which revealed a mild hypertrophic change of appellee’s acromioclavicular joint. Following an evaluation conducted on that same date, Dr. Pearce increased appellee’s medication and told appellee that he was still unable to return to work. Appellee returned to Dr. Pearce on April 13, 2000, and was given a release to return to work with restrictions of no lifting, pushing, or pulling in excess of twenty-five pounds. The record indicates that appellants received appellee’s return to work authorizations, release from work authorizations, and restricted work authorizations. In addition, appellants contracted the services of-an independent registered nurse to manage appellee’s case.
Appellants continued to pay temporary total disability benefits to appellee until April 13, 2000, when Dr. Pearce authorized appellee to return to work with restrictions. On April 14, 2000, appellee attempted to return to work. However, he was told that he no longer had a job because he failed to maintain contact with his employer. The next day, appellee went to the Employment Security Division to seek employment benefits. He later moved to Missouri, and worked at a machine shop from May 9, 2000, until July 31, 2000, when he voluntarily quit and returned to Arkansas. On September 6, 2000, appellee found a job as a truck driver.
Appellee subsequently filed a claim for workers’ compensation contending that he was entitled to additional temporary total benefits from April 14, 2000, through May 8, 2000; that he was entided to temporary partial disability benefits from May 9, 2000, through July 31, 2000; that he was entitled to relief under Arkansas Code Annotated section 11-9-505(a); and that he was entitled to a change of physician or an independent medical evaluation.
Following a hearing, an administrative law judge (ALJ) found 1) that appellee failed to prove entitlement to any additional benefits after April 13, 2000; 2) that appellee was not entitled to any benefits pursuant to section ll-9-505(a); and 3) that appellee was not entitled to a physician or an independent medical evaluation. Appellee appealed only that portion of the ALJ’s decision that found that he was not entitled to benefits for temporary total disa bility pursuant to section ll-9-505(a). Following its de novo review, the Commission found that appellee was not entitled to benefits for temporary total disability subsequent to April 13, 2000. However, the Commission determined that appellee was entitled to an award of benefits pursuant to section 11-9-505(a). This appeal followed.
Standard of Review
When reviewing decisions from the Commission, we view all evidence in the light most favorable to the results reached by the Commission. See Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 (1998). The critical factor is not whether we would have reached a different result than the Commission or whether the evidence supports a contrary finding. See id. Rather, the findings of the Commission are affirmed when we determine that the findings are supported by substantial evidence, i.e., evidence upon which reasonable minds could have reached the same conclusion as the Commission. See id.
Entitlement to Additional Benefits
Our workers’ compensation laws serve to provide disability benefits to legitimately injured workers, to pay reasonable and necessary medical expenses, and to return the worker to the workplace. See Toney v. City of Forth Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996).
Arkansas Code Annotated section 11-9-505 reads as follows:
(a)(1) Any employer who without reasonable cause refuses to return an employee who is injured in the course of employment to work, where suitable employment is available within the employee’s physical and mental limitations, upon order of the Workers’ Compensation Commission, and in addition to other benefits, shall be liable to pay to the employee the difference between benefits received and the average weekly wages lost during the period of the refusal, for a period not exceeding one (1) year.
We reviewed section 505(a)(1) in Toney, supra, and held that before section 505(a)(1) applies, the following criteria must be satisfied. First, the employee must prove that he sustained a compensable injury. Second, he must demonstrate that there is suitable employment within his physical and mental limitations with his employer. Next, he must prove that the employer has refused to return him to work. Last, he must demonstrate that the employer’s refusal is without reasonable cause. See Toney, supra.
In Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d 155 (1997), our supreme court analyzed subsection 505(a)(1) in the context of an Arkansas Civil Rights Act claim regarding disability. The claimant, Davis, had returned to work while she was receiving medical treatment and was terminated only after she had entered into a joint petition that ended her claim for workers’ compensation. In considering whether Davis had a workers’ compensation claim or a discrimination claim based on a violation of the Arkansas Civil Rights Act, the Davis court held as follows:
[W]e conclude that there is no remedy under the Workers’ Compensation Act for an employee who is terminated from his or her job on the basis of a disability. Thus, the exclusive-remedy provision of the Act does not preclude Appellant from bringing an action under the Arkansas Civil Rights Act based upon Appellee’s alleged discrimination in terminating her on the bases of her permanent restrictions and impairments.
Davis, 330 Ark. at 556, 956 S.W.2d at 160-61.
In the present case, the Commission specifically found that appellee was not entitled to benefits for temporary total disability after April 13, 2000. It based its finding on appellee’s own testimony that he had the capacity to work as of April 13, 2000, when he was released to light duty work by Dr. Pearce. However, the Commission found that appellee was entitled to an award of benefits pursuant to section 505(a)(1) based on its determination that appellee established each element outlined in Toney, supra.
Appellants invite us to apply the reasoning espoused in Davis, supra, and to hold that the Commission’s decision is inconsistent with case law. We decline to do so and hold that substantial evi dence supports the Commission’s finding that appellee proved entitlement to benefits based on the factors outlined in Toney.
We begin by noting that the facts in the present case are distinguishable from those presented in Davis, supra. Davis involves the applicability of subsection 505(a)(1) as it relates to the Arkansas Civil Rights Act. Because appellee was not pursuing a discrimination case, the Commission properly analyzed the case at bar using Toney, supra.
We agree with the Commission that appellee met the Toney factors. Appellee sustained a shoulder injury, which was accepted as compensable. The employer does not deny that it had suitable employment within appellee’s physical and mental limitations available for appellee. Nor does the employer deny that it refused to return appellee to work. After finding that appellee received benefits throughout the pertinent period of time, that appellee’s physician had taken appellee off work until April 13, and that an independent nurse who was hired by appellants was aware of theses facts, the Commission concluded that the employer terminated appellee without reasonable cause. Because a reasonable person could agree with the Commission’s conclusion, substantial evidence supports the Commission’s finding that appellee met the Toney requirements. We affirm.
Vaught and Baker, JJ., agree.
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Olly Neal, Judge.
The parties are adjoining landowners. They agreed that an old fence was the boundary line between them, and agreed to share in the cost of replacing the fence. The appellees bulldozed the old fence that separated the properties. They also bulldozed all the trees alongside the fence. Appellants accused appellees of erecting the new fence in the wrong location and of removing their trees without permission.
The trial court found that, with the exception of two posts that needed to be moved south two feet, the new fence was located in the same position as the old fence. The court also found that appellants suffered no loss with regard to the removed trees because the trees had no market value.
On appeal, appellants argue that the trial court committed error by ruling that they could not be awarded damages for the replacement value of the trees removed because they had no market value and because the removal of the trees and installation of the new fence actually improved the area. We reverse and remand.
Although chancery cases are reviewed de novo on the record, the appellate court does not reverse unless it determines that the chancery court’s findings of fact were clearly erroneous. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Material v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). In reviewing a chancery court’s findings of fact, the appellate court gives due deference to the chancellor’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Jennings v. Burford, supra.
Arkansas Code Annotated section 18-60-102(a) (1987) provides, in part, that “if any person shall cut down, injure, destroy, or carry away any tree placed or growing for use or shade ... on the land of another person, . . . the person so trespassing shall pay the party injured treble the value of the thing so damaged, broken, destroyed, or carried away, with costs.” The treble-damages remedy under this code section requires a showing of intentional wrongdoing, even though the intent may be inferred from the carelessness, recklessness, or negligence of the offending party. Hackleton v. Larkan, 326 Ark. 649, 933 S.W.2d 380 (1996). Less than intentional conduct may support double damages under Ark. Code Ann. § 20-22-304, which concerns causing fire and damage to another’s property. Id. This double-damages remedy, however, must be pleaded in order to give a defendant adequate notice of the remedy he would be confronting. Id.
Appellants argue that there is no requirement in section 5-60-102 section that a tree must have a market value in order for a landowner to be entitled to replacement value damages. Larry Morris, a registered forester, gave expert testimony as to the value of the trees. Morris estimated that thirty-five trees had been bulldozed on the east/west side and twenty-five trees on the north/ south side, and testified that the trees removed from the fence row included Post Oak, Black Oak, and Black Jack Oak. He calculated that the replacement value of the trees was $17,531 and opined that the Black Jack Oak had no merchantable value and was worth nothing, except for firewood.
The trial court, in its judgment and decree, found that Morris’s testimony was not helpful because all of his testimony concerned replacement value and he stated that he was unable to give an opinion concerning market value. The court stated that, “in view of the rural nature of this area, and the location of the lane over which the [appellants] travel, it seems absurd to award damages on a replacement estimate, because the removal of the old fence and the installation of the new fence has actually improved the area.” The ruling was clearly erroneous and suggests that the court failed to consider evidence as to the number of trees cut down and their replacement value.
We have adopted the rule that when ornamental or shade trees are injured, the use made of the land should be considered, and the owner compensated by the damages representing the cost of replacement of the trees. Revels v. Knighton, 305 Ark. 109, 805 S.W.2d 649 (1991). Damages awarded for loss of a shade tree cannot include both replacement costs and consequential damages. Id.
Because the trial court appears to have relied entirely on the question of market value, we are unable to determine whether the court considered other factors besides the market value in assessing appellants’ damages, including replacement value and the number of trees lost. Therefore, we reverse and remand.
We note that it appears uncontroverted that many of the trees were located in the boundary line. Other jurisdictions have held that owners of boundary line trees are considered tenants in common, and neither tenant possesses the right to destroy the commonly held property without consent of the other. Holmberg v. Bergin, 172 N.W.2d 739 (Minn. 1969); see e.g., Ridge v. Blaha, 166 Ill. App.3d 662, 520 N.E.2d 980 (1988).
Reversed and remanded.
Pittman and Crabtree, JJ., agree.
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Larry D. Vaught, Judge.
Appellant Robert Lee Williams Jr. was charged with capital murder, aggravated robbery, and residential burglary. These crimes were allegedly committed on August 5, 2004, when Robert was sixteen years old. After being criminally charged as an adult in circuit court, he filed a motion to transfer the case to the juvenile division of circuit court. Following a hearing on the matter, the circuit court denied the motion. Williams now appeals, arguing that the circuit court erred in denying his motion to transfer. We affirm.
Testimony at the hearing established that Williams (along with Kevin Barton) entered the home of Alena Tate — a seventy-four-year-old woman with Alzheimer disease — with the intention of stealing her Cadillac. During the robbery, Tate was struck in the face and then fatally shot in the neck area. Williams and Barton waited and watched Tate for about five minutes after they shot her. Williams admitted to being involved but claimed that Barton was the one who actually shot Tate. Conversely, Barton claimed that Williams was the one who shot Tate.
Williams was born July 21, 1988, and — at the time the crime was committed — he had a ninth-grade education. After testing by Dr. Paul Deyoub, it was determined that Williams’s I.Q. was somewhere between sixty-five and seventy, but possibly into the seventies. Dr. Deyoub concluded that Williams had no mental disease or defect, was competent to proceed to trial, had no problems understanding the criminality of his actions, and had the ability to conform his conduct to the law. Even though Dr. Deyoub found that Williams had no mental defect, Dr. Deyoub did testify that Williams’s I.Q. was “borderline,” meaning that Williams was functioning intellectually at a lower-than-average range. Although Williams had no juvenile record in Clark County and his parents both testified that he had been a sweet child and mostly stayed out of trouble, Williams confessed to committing a second robbery-related homicide in Nevada County just prior to the crimes at issue in this appeal.
In its consideration of Williams’s motion to transfer, the circuit court found that Williams’s offenses were serious; that they were committed in an aggressive, violent, and premeditated man ner; and that the protection of society required prosecution in the criminal division of circuit court. The court noted that personal injury and death resulted from the crime and that the level of Williams’s culpability was great. The court also considered the fact that Williams had committed another capital murder only a few weeks prior to the instant offense. Finally, the court concluded — based on Dr. Deyoub’s examination ■ — ■ that at the time of the offense Williams did not suffer from a mental disease or defect, had the capacity to form the culpable mental state required of the crime charged, and had the ability to appreciate the criminality of his conduct and also the capacity to conform his conduct “with the requirements of the law.”
A defendant bears the burden of proving the necessity of a transfer from circuit court to juvenile court. Jongewaard v. State, 71 Ark. App. 269, 29 S.W.3d 758 (2000). Once the defendant meets this burden, the State must show countervailing evidence that warrants the circuit court retaining the case. Id. A circuit court’s decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convincing evidence. Ark. Code Ann. § 9-27-318(h) (Supp. 2005); Wright v. State, 331 Ark. 173, 959 S.W.2d 50 (1998). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). When reviewing the denial of a motion to transfer a case to juvenile court, we view the evidence in the light most favorable to the State and do not reverse unless the circuit court’s decision is clearly erroneous. Id.
When determining whether a case should be transferred to the Juvenile Division the circuit court is compelled to consider and “make written findings on all of’ the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution as an extended juvenile jurisdiction offender or in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated ajuvenile offender and, if so, whether the offenses were against person or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of circuit court’s jurisdiction;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g). Although the court must consider each of these ten factors, it is not required to give all ten factors equal weight. Walker v. State, 317 Ark. 274, 878 S.W.2d 374 (1994). However, following the 2003 amendments to the juvenile-transfer statute, a trial court is now required to make written findings on each of the ten factors set forth above. See Ark. Code Ann. § 9-27-318(h) (stating that the “court shall make written findings on all of the factors set forth in subsection (g) of this section”).
At the outset we note that the trial court made written findings addressing each of the enumerated factors, save one. The trial court failed to make a written finding on factor seven, which requires the court to consider “whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile prior to the expiration of the juvenile division of circuit court’s jurisdiction.” However, the issue has not been raised — either below or on appeal. In reconciling the clear violation of the statutory mandate with Williams’s failure to bring to the court’s attention the technical inadequacy of its written order, we look to Box v. State, 71 Ark. App. 403, 30 S.W.3d 754 (2000). In Box, the appellant argued that a 1999 amendment to the juvenile-transfer statute requiring that the court “shall make written findings” in decisions either to retain jurisdiction or transfer the case to juvenile court applied to his case and that the trial court’s failure to make such a written finding amounted to reversible error. Id. at 406, 30 S.W.3d at 756. Our court reasoned:
In our view, this provision can be likened to Ark. Code Ann. § 5-4-310(b)(5) (Repl. 1997), which requires that a court “shall furnish a written statement of the evidence relied upon and the reasons for revoking suspension or probation.” It has been held that this right, like any other procedural right, can be waived by the failure to object. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981); Hawkins v. State, 270 Ark. 1016, 607 S.W.2d 400 (Ark. App. 1980). We see no reason to apply a different rule here. A timely request or objection would have enabled the trial court to rule on the issue of whether the amendment applied and to correct whatever deficiency there may have been in the order. See Hawkins v. State, supra. Additionally, in Butler v. State, 324 Ark. 476, 922 S.W.2d 685 (1996), the appellant argued that the trial court was required to make written findings of fact to support its decision to deny a transfer to juvenile court as a matter of due process, based on the decisionin Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The supreme court declined to address the issue because there had been no objection made below, noting that even constitutional issues will not be heard for the first time on appeal. Thus, we conclude that appellant’s failure to object precludes consideration of this point on appeal.
Following the sound logic of Box, we will not address the technical, statutory non-compliance of the trial court’s order in this appeal because Williams’s failure to object below precludes consideration of the issue on appeal.
On appeal Williams argues that the circuit court erred in its denial of his transfer motion because the court failed to properly weigh and consider the factors outlined in section 9-27-318(g). Specifically, Williams claims that because of his age, I.Q., immaturity and lack of sophistication, mental retardation, and ability to be rehabilitated, the circuit court’s decision to refuse transfer was clearly erroneous.
Here, the court’s ultimate conclusion to deny transfer was supported by evidence showing that Williams had great culpability in a serious crime — homicide — and had recently committed a second homicide. Additionally, there was medical testimony that placed Williams’s I.Q. in the range of sixty-five to seventy, if not higher into the seventies. Dr. Deyoub testified that Williams was competent to stand trial, had the ability to appreciate the criminality of his conduct, and possessed the capacity to conform to the requirements of the law. See Otis v. State, 355 Ark. 590, 142 S.W.3d 615 (2004) (affirming the circuit court’s denial of Otis’s motion to transfer despite evidence that defendant suffered from borderline intellectual functioning and an I.Q. of sixty-eight based on seriousness of the crime and medical testimony establishing capacity to understand and conform conduct). Finally, the fact that Williams was sixteen years old when the crime was committed, coupled with the fact that he could not remain in the juvenile division past his twenty-first birthday, would result in an extraordinarily short time period for any sort of meaningful rehabilitation.
. Therefore, viewing the evidence in the light most favorable to the State, the circuit court was not clearly erroneous in denying Williams’s motion to transfer to juvenile division.
Affirmed.
Hart and Neal, JJ., agree.
Dr. Deyoub originally found that Williams’s I.Q. score was fifty-nine, but after further researching Williams’s school records and prior I.Q. scores, Dr. Deyoub raised Williams’s estimated I.Q. The wide range in the I.Q. estimate is due to Dr. Deyoub’s conclusion that Williams was malingering and faking ignorance while taking the examinations.
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John Mauzy Pittman, Judge.
Appellant, Joyce Kinkead, appeals from an order of the Cleburne County Probate Court. She contends that the court erred in denying her claim of $11,960.50 for legal work she performed for the decedent prior to his death and in imposing sanctions against her under Rule 11 of the Arkansas Rules of Civil Procedure. We agree that the probate court erred in imposing sanctions and affirm as modified.
In her claim against the estate of her late father-in-law, Dr. Harold Kinkead, appellant sought legal fees for representing him in an action against his brothers and sisters to obtain an easement for ingress and egress to two acres of river property that Dr. Kinkead had received from a settlement of a family partition action. Appellant was also a party to the partition action and the resulting settlement and indemnity agreement between the parties. Appellant testified that Dr. Kinkead asked her to represent him in obtaining an easement to his two acres across his brothers’ adjoining property. Appellant admitted that Dr. Kinkead’s two acres also adjoined property that she and her husband received from the family settlement; that Dr. Kinkead did not have an easement because it was decided at the time the settlement agreement was signed that Dr. Kinkead would sell his two acres to appellant and her husband; and that Dr. Kinkead later refused to transfer his two acres to her husband, resulting in her husband’s refusal to let Dr. Kinkead cross their property. The easement action ended when the chancery court entered a directed verdict in favor of the defendants, finding that Dr. Kinkead had failed to prove any right to an easement and further finding that Dr. Kinkead had settled any claims or rights he had against the defendants’ property under the parties’ prior settlement agreement.
Appellant testified that, after the conclusion of the easement trial, Dr. Kinkead told her to send him a bill. Appellant testified she told him that her services would probably run approximately $10,000.00 and to wait until after the order was entered. She claimed that she had an oral agreement with Dr. Kinkead that he would pay her legal fees of $95.00 per hour for representing him. The judgment entered in the easement lawsuit awarded the defendants attorney’s fees of $2,943.75. Appellant testified that she received a check from Dr. Kinkead for $2,207.81, which she claims represented three-fourths of the attorney’s fees that he owed to defendants’ attorneys, the Friday Firm. She stated that, when she received the final order, the chancellor had also included an award to the defendants of their costs. She stated that she then wrote Dr. Kinkead on July 28, 1989, and advised him that he also owed $39.82, which represented three-fourths of the court costs awarded to the defendants. Appellant claims that, in response to her letter, she received Dr. Kinkead’s August 7, 1989, note that stated in full: “Pay the Friday firm. I have stolen more chain than I can swim with as it is. I will not attempt an appeal. Let me know how much money I owe you, so I can make a loan at the bank.” The note was signed “Harrold.”
Although Dr. Kinkead’s easement lawsuit was concluded by the judgment entered August 2, 1989, appellant never sent Dr. Kinkead a bill of any kind for her legal services. The first demand appellant made for payment of her legal fees was when she filed her claim against Dr. Kinkead’s estate on November 17, 1993, more than four years after she rendered her last legal service for Dr. Kinkead. The estate, appellee herein, objected to appellant’s claim, pleading the statute of limitations, the statute of frauds, accord and satisfaction, that the charges were unreasonable, and that appellant had volunteered her legal services.
At the hearing on her claim, appellant contended that her claim for legal services was not barred by the three-year statute of limitations for oral contracts because her claim was based on a written instrument, i.e., Dr..Kinkead’s August 7, 1989, note, and therefore, her claim was within the applicable five-year statute of limitations. See Ark. Code Ann. § 16-56-111(a) (Supp. 1993).
After the conclusion of the hearing, a letter opinion dated May 9, 1994, was sent by the probate court and read in part:
An obvious and legitimate argument can be made on these facts that if [appellant] would try to do her client [Dr. Kinkead] out of his land while he was alive and she was representing him, she certainly wouldn’t hesitate to do his estate out of money after he’s dead. She waited for the last day of filing to present her claim for legal fees, and she admits that she never presented a bill under her alleged contract until that time. YET HER LAST LEGAL WORK FOR MR. KINKEAD WAS DONE ON JULY 26, 1989, AND HE DIDN’T DIE UNTIL MORE THAN FOUR YEARS LATER! ... I think her claim is barred by the Statute of Limitations. But more importantly, I just simply don’t believe she ever had any contract of employment with Mr. Kinkead.
In its order entered on May 25, 1994, the probate court found that appellant had failed to sustain her burden of proof of establishing an employment contract for compensation with [Dr. Kinkead] as set forth in the claim filed against the estate. The court also found that appellant’s claim against the estate alleged an oral contract of employment and would fall within a three-year statute of limitations. The order assessed sanctions against appellant in the amount of a $750.00 attorney’s fee in favor of the estate’s attorneys and expenses incurred in the amount of $162.33.
Appellant contends in her first point on appeal that the probate court ¿rred in determining that her claim against the estate was based on an oral contract of employment. Appellant contends that Dr. Kinkead’s note dated August 7, 1989, is clearly a written promise to pay legal services rendered in connection with his easement lawsuit.
In support of her argument that an original debt is a sufficient legal consideration for a subsequent new promise to pay, appellant cites Kitchens v. Evans, 45 Ark. App. 19, 870 S.W.2d 767 (1994), where this court stated:
The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But, in order to continue or revive the cause of action after it would otherwise have been barred by the statute, there must be either an express promise of the debtor to pay the debt, or else an express acknowledgment of the debt, from which his promise to pay may be inferred.
Kitchens v. Evans, 45 Ark. App. at 23-24, 870 S.W.2d at 769 (quoting Morris v. Carr, 11 Ark. 228, 232, 91 S.W. 187, 189 (1905)). Appellant also cites Sims v. Miller, 151 Ark. 377, 383, 236 S.W. 828 (1922), which held, in an action on a written contract witnessed by correspondence, that the five-year statute of limitations applies although an account is filed specifying the items on which the three-year statute would have applied if the action had been brought on account. Appellant also relies on H.B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S.W.2d 855 (1955), for its holding that the fact that oral proof is required to establish the amount due under a written contract does not prevent the five-year statute of limitations from applying.
The note on which appellant relies as creating a written contract from Dr. Kinkead to pay her legal fees is ambiguous at best. The note merely acknowledges that Dr. Kinkead owes something and does not specify the amount or the debt. The general rule is that, before a contract may be enforceable, it must be definite and certain in all of its terms. Welch v. Cooper, 11 Ark. App. 263, 670 S.W.2d 454 (1984). Parties, however, by their conduct, can enable a court to give substance to an indefinite term of a contract, and the court looks to the conduct of the parties to determine what they intended. Here, the probate court referencing the conduct of the parties, found that appellant had failed to prove that there was ever an agreement between the parties that appellant would be paid for her legal services. Probate cases are tried de novo on appeal, and the findings of the probate judge will not be reversed unless they are clearly erroneous, giving due deference to his superior position to determine the credibility of the witnesses and the weight to be accorded their testimony. Gilbert v. Gilbert, 47 Ark. App. 37, 883 S.W.2d 859 (1994). Based on the evidence that was produced in this case, we do not think the chancellor’s finding on this point is clearly erroneous.
Although appellant argues that the amount of her fees were shown by her written statements attached to her claim and her testimony, appellant cannot rely on her written fee statement because she admitted that it was never sent to Dr. Kinkead. As for her reliance on her own testimony to establish an agreement by Dr. Kinkead to pay her attorney’s fees, the probate judge found that she was not a credible witness. Appellant’s admissions at the hearing support his finding.
Appellant admitted that no bill for her services was ever sent to Dr. Kinkead, although he wrote her the note on August 7, 1989, and did not die until August 1, 1993. When questioned by the court as to why she did not send Dr. Kinkead a bill back in 1989, she replied that her mother-in-law had died in 1989 prior to the easement trial; that her husband’s sister had a baby and Dr. Kinkead was in the process of buying that sister a mobile home; that he bought a mobile home for another sister, Carol Ann; and that she felt sorry for the man and did not want to push him. Appellant also admitted, however, that she and her husband had filed an adverse possession claim against Dr. Kinkead’s estate; seeking possession of the same two acres for which Dr. Kinkead had sought an easement in the lawsuit in which she represented him; that their ..adverse possession claim against the estate alleged that she and her husband had adversely possessed against Dr. Kinkead since 1986, seven years prior to his death and during the time she represented him in the easement action; and that she and her husband had received a $50,000.00 offer for Dr. Kinkead’s two acres. She also admitted that Dr. Kinkead’s will, dated January 29, 1990, disinherited her husband and that her husband has challenged the will, claiming that Dr. Kinkead was incompetent to make a will and unduly influenced. She also admitted that her claim against the estate and the adverse possession case were filed after her husband was advised by the executrix that he had been disinherited.
Appellant’s second point contends that the probate court erred in finding that the three-year statute of limitations was applicable to her claim filed against the estate. We do not address this point because the probate court found that appellant fáiled to prove that an agreement existed between the parties, and, for the reasons previously discussed, we cannot say the court’s finding in this regard is clearly erroneous.
Appellant’s final point goes to the court’s award of sanctions under Rule 11 of the Arkansas Rules of Civil Procedure. This rule provides in part:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
Appellant argues that, because her claim was based on a written promise to pay and was brought within five years, her claim was proper, and it was error to award sanctions. In awarding sanctions, the probate judge stated in his letter opinion that the claim should not have been brought and that Rule 11 sanctions were appropriate in this matter.
We infer from the probate court’s letter opinion that he found appellant’s conduct in representing Dr. Kinkead while at the same time she was attempting to take his property by adverse possession to be, at a minimum, a serious conflict of interest. While we agree with him in this regard, we cannot say her conduct in filing a claim against the estate for legal fees was a violation of Rule 11. Rule 11 is not intended to permit sanctions just because the court later decides that the lawyer was wrong. Crockett & Brown, P.A. v. Wilson, 321 Ark. 150, 901 S.W.2d 826 (1995). Accordingly, the judgment is modified to delete the imposition of sanctions.
Affirmed as modified.
Mayfield and Rogers, JJ., agree.
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Sam Bird, Judge.
This is an appeal from a judgment entered in favor of appellees Randall and Vera Merritt and against appellants David Estes, Nancy Estes, James Holder, Miki Holder, and the Vernon M. Rowe Family Limited Partnership in an action for declaratory and injunctive relief against the enforcement of restrictive covenants allegedly encumbering appellees’ property. The trial court found that a reference in the plat of appellees’ property to the restrictions covering appellants’ property constituted an impermissible amendment to the bill of assurance for appellants’ property. The trial court also found that the restrictions did not apply to appellees’ property. Appellants raise two points on appeal. We affirm.
Appellants own some of the lots located in the Lake Pointe Above the Narrows, Phase 1 subdivision (hereinafter, “Phase 1”). The Phase 1 property is governed by a “Bill of Assurance and Protective Covenants” recorded on March 31, 1997, that defines acceptable home sizes, styles, and usages. It also prohibits the subdividing of any lots in the subdivision. Finally, the bill of assurance contains the following provision:
19. TERM: These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of thirty (30) years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of 10 years, unless an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.
Appellees own the single, ten-acre lot contained in Phase 2 of Lake Pointe Above the Narrows subdivision, which is located across the road from Phase 1. The same developer created both Phases 1 and 2. The Phase 2 plat, recorded on April 26, 1999, references the bill of assurance that had previously been recorded for Phase 1, stating, “For Bill of Assurance see Deed Record Book 429 Page 617-622.” The Phase 2 property was conveyed to appellees’ predecessor in title in March 2000 and to appellees in December 2002. Neither deed contains any restrictions.
After a dispute arose, appellees filed a declaratory judgment action against appellants and some, but not all, of the other lot owners of Phase 1 on November 17, 2004. Appellees sought a declaration that Phase 2 was not subject to the bill of assurance for Phase 1. After other owners filed pro se answers, appellants filed an answer denying the material allegations of the complaint.
At trial, appellees argued that the Phase 1 bill of assurance was not subject to amendment for thirty years. Appellees also argued that appellants did not have any standing to enforce the Phase 1 covenants because Phase 1 and Phase 2 are adjoining but separate subdivisions and owners in one subdivision do not have standing to enforce the restrictions in another subdivision. In response, appellants argued that the bill of assurance was not being amended but, rather, was being adopted as a separate bill of assurance for Phase 2.
Randall Merritt testified at trial that he is a builder/developer. He said that he was familiar with legal descriptions and that the plat of Phase 2 did not include all of the property within the legal description of Phase 2. He also said that he did not believe his property in Phase 2 was covered by the Phase 1 bill of assurance referenced in the Phase 2 plat. He stated that he began polling his neighbors to ask their permission to subdivide his lot. Merritt admitted receiving a title search to Phase 2 that referenced the Phase 1 bill of assurance and put him on notice that the restrictions might apply. However, he did not seek legal advice on the issue before purchasing the Phase 2 property.
Merritt acknowledged that he sent a letter to some of the Phase 1 owners, which asked them to sign a document giving him permission to subdivide Phase 2 and stated that “more than 75% of the current owners have been polled and all have responded positively, thus making this request for your signatures more of a formality.” He said that his letter did not mean that more than seventy-five percent of the owners had agreed to his request but meant only that they responded positively. Merritt also stated that, until he sought legal counsel, he, as a builder, believed that the Phase 1 restrictions might apply to Phase 2.
Relying on the supreme court’s decision in White v. Lewis, 253 Ark. 476, 487 S.W.2d 615 (1972), the trial court found that the reference in the Phase 2 plat to the Phase 1 bill of assurance constituted an invalid amendment of the restrictions in violation of the provision prohibiting amendments for thirty years from the date of the bill of assurance. The court also found that appellees’ property was not subject to the Phase 1 bill of assurance because its legal description did not include the property located in Phase 2. The court enjoined appellees from proceeding to develop the property so that appellants could appeal. An order containing the court’s findings was entered on December 7, 2005, and appellants filed a notice of appeal on December 21, 2005.
Appellants raise two points for reversal. They first assert that the trial court erred in finding that the plat of Phase 2 amended the bill of assurance to Phase 1 because the plat only adopted the restrictive covenants of the Phase 1 bill of assurance and did not amend it. We affirm, but on different reasoning than that used by the trial court.
The ordinary method of establishing restricted districts when new subdivisions are surveyed and platted is to file a plat and bill of assurance, whereby the owner obligates himself not to convey except in conformity with the restrictions imposed in the bill of assurance. McGuire v. Bell, 297 Ark. 282, 761 S.W.2d 904 (1988). Another method is for the grantor to include the restrictions in the conveyances of the land. Id. Here, the deeds from the developer to appellees’ predecessor in title and to appellees do not contain any restrictions. Therefore, the question is whether the reference to the Phase 1 bill of assurance on the Phase 2 plat is sufficient to create the restrictions.
The general rule governing the interpretation, application, and enforcement of restrictive covenants is that the intention of the parties as shown by the covenant governs. McGuire, supra. Restrictive covenants are not favored, and if there is any restriction on land, it must be clearly apparent. Hutchens v. Bella Vista Village Prop. Owners’ Ass’n, 82 Ark. App. 28, 110 S.W.3d 325 (2003). Where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from that restraint should be decreed; but when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed, and it is improper to inquire into the surrounding circumstances of the objects and purposes of the restriction to aid in its construction. Holmesley v. Walk, 72 Ark. App. 433, 39 S.W.3d 463 (2001).
We hold that the Phase 2 plat’s reference to the Phase 1 restrictions is ambiguous and was properly resolved as an issue of fact. The Phase 2 plat references only the book and page location of the Phase 1 bill of assurance and does not specifically state that it is adopting the Phase 1 restrictions for Phase 2. Further, the Phase 1 restrictions themselves state that they are intended to apply only to the land described in the attached legal description and shown by the Phase 1 plat, neither of which includes appellees’ property. Because there are no restrictions clearly applicable to Phase 2, our rule of strict construction of restrictive covenants resolves the ambiguity in favor of the appellees and defeats the contention that the plat alone adopts the Phase 1 restrictions for Phase 2. We, therefore, affirm on this point.
For their second point, appellants assert that the trial court erred in finding that appellees were not bound by the restrictive covenants because they had notice of the covenants. It is undisputed that appellees had notice of the restrictions. However, this argument begs the threshold question of whether the restrictive covenants were valid. That issue is addressed in the first point and need not be addressed again here.
Affirmed.
Gladwin and Roaf, JJ., agree.
The trial court also denied appellants’ motion to dismiss for failure to join all of the Phase 1 owners and specifically declined to rule on whether the Phase 1 owners had standing to enforce any restrictions that might apply to Phase 2 or to rule on whether Phase 1 and Phase 2 are separate subdivisions. No issues concerning these rulings are raised in this appeal.
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John B. Robbins, Judge.
Warren Pingel has appealed, pro se, from an order of the Washington County Chancery Court rejecting his bid of one silver dollar in a commissioner’s sale of property in foreclosure. We affirm the chancellor’s decision.
Troy and Nichols, Inc., obtained a judgment against Robert Dale Forbes and Deborah J. Forbes for the balance due on a promissory note secured by real property. The chancellor ordered the property to be sold. The commissioner’s report of the sale recited that Troy and Nichols had bid $47,367.61, Mr. Forbes had bid $47,400.00, and appellant had bid one silver dollar for the property. Because Troy and Nichols’ bid was for less than the amount of its judgment against Mr. and Mrs. Forbes, it would be credited against the judgment.
At the hearing on the validity of the bids, Mr. Forbes withdrew his bid. Appellant argued that a bid (such as his) with a simultaneous tender of cash in gold or silver coin is the only kind of bid that can constitutionally be confirmed. The chancellor disagreed and found that it would be an abuse of discretion and it would shock the conscience of the court to accept appellant’s grossly inadequate bid. The chancellor confirmed the report of sale and directed the commissioner to deliver a deed to Troy and Nichols.
Appellant has listed thirteen points on appeal. These “points” are largely unintelligible and can be distilled into appellant’s claim that his bid was the only valid bid under article I, § 10, of the United States Constitution because checks and federal reserve notes are not lawful money of the United States.
In Julliard v. Greenman, styled “The Legal Tender Cases,” 110 U.S. 421, 448 (1884), the United States Supreme Court rejected this argument, stating:
Congress is vested with the exclusive exercise of the analogous power of coining money and regulating the value of domestic and foreign coin, and also with the paramount power of regulating foreign and interstate commerce. Under the power to borrow money on the credit of the United States, and to issue circulating notes for the money borrowed, its power to define the quality and force of those notes as currency is as broad as the like power over a metal- lie currency under the power to coin money and to regulate the value thereof. Under the two powers, taken together, Congress is authorized to establish a national currency either in coin or in paper, and to make that currency, lawful money for all purposes, as regards the national government or private individuals.
The power of making the notes of the United States a legal tender in payment of private debts, being included in the power to borrow money and to provide a national currency, is not defeated or restricted by the fact that its exercise may affect the value of private contracts.
This argument was also raised and rejected in Daniels v. Arkansas Power & Light Co., 269 Ark. 390, 391, 601 S.W.2d 845 (1980). There, the issue was whether a check from Arkansas Power and Light Co. to the appellants, redeemable in federal reserve notes, was “money” as compensation required by law in an eminent domain case. The Arkansas Supreme Court stated:
The appellants argue the United States Constitution, the Arkansas Constitution, and Arkansas law require payment in gold, silver or certificates redeemable in such medium of exchange. U.S. CONST, art. I, § 10, cl. 1, Ark. CONST, art. 12, § 9.
Federal reserve notes are legal tender and, therefore, the appellants’ argument has no merit. 31 U.S.C. § 392 (1976); United States v. Wangrud, 533 F.2d 495 (1976); United States v. Rifen, 577 F.2d 1111 (1978).
Many other courts have rejected appellant’s argument. For example, in Illinois, ex rel. Bosworth v. Robert L. Jungles Family Trust, 126 Ill.App.3d 537, 467 N.E.2d 295, 296 (1984), the court stated that this argument, “while interesting and naturally somewhat appealing, is devoid of any merit.” This argument was called “hopeless and frivolous” in Foret v. Wilson, 725 F.2d 254 (5th Cir. 1984). In United States v. Wangrud, 533 F.2d 495, 496 (9th Cir. 1976), cert. denied, 429 U.S. 818 (1976), the court stated:
Mr. Wangrud appeals his conviction on two counts of wilful failure to make an income tax return. 26 U.S.C. § 7203. For the tax years in question the defendant received checks from the State Farm Insurance Company as compensation for his services. He now argues that he did not receive money, since the checks could be cashed only for federal reserve notes and that these are not redeemable in specie. We publish this opinion solely to make it clear that this argument has absolutely no merit. We affirm this conviction.
By statute it is established that federal reserve notes, on an equal basis with other coins and currencies of the United States, shall be legal tender for all debts, public and private, including taxes. 31 U.S.C. § 392 (Supp. 1976). This statute is well within the constitutional authority of Congress. U.S. Const, art. I, § 8. It so completely disposes of appellant’s argument that it is unnecessary for us to invoke other provisions of the Internal Revenue Code which would be equally dispositive. . . .
Appellant’s argument was also rejected in the following cases: Radue v. Zanaty, 293 Ala. 585, 308 So.2d 242, 244-45 (1975); Brand v. Texas, 828 S.W.2d 824, 825-26 (Tex. Ct. App. 1992); May v. Bailey, 693 S.W.2d 246, 248-49 (Mo. Ct. App. 1985); and Walton v. Keim, 694 P.2d 1287, 1288-89 (Col. Ct. App. 1984).
Appellant also argues that the Constitution prohibits the states from declaring anything but gold and silver to be legal tender. As in United States v. Rifen, 577 F.2d 1111, 1113 (8th Cir. 1978), this argument misses the point. There, the court stated: “[A]rticle I, section 10 of the United States Constitution prohibits the states from declaring legal tender anything other than gold or silver, but does not limit Congress’s power to declare what shall be legal tender for all debts.” The Court also stressed that Congress, at 31 U.S.C. § 392 [now § 5103], has declared federal reserve notes legal tender. 577 F.2d at 1112.
We also hold that the chancellor did not abuse his discretion in rejecting appellant’s bid as being so low as to shock the conscience of the court. In Looper v. Madison Guaranty Savings & Loan Association, 292 Ark. 225, 227-28, 729 S.W.2d 156 (1987), the Arkansas Supreme Court set forth the relevant considerations:
The sale price was $1,900, and the market value was found to be $42,500; that is, the property sold for 4.4% of its value according to the chancellor’s finding.
A price that “shocks the conscience” of a judge can never be reduced to a mathematical formula. It depends on a variety of circumstances: the value of the property, the circumstances surrounding the sale, the price, the rights of the parties participating in the sale, and the harm that may result if the sale is confirmed, to name a few. Nevertheless, the decision is one for the chancellor to make, using sound discretion. Summars v. Wilson, 205 Ark. 923, 171 S.W.2d 944 (1943). While no fixed formula exists or can exist for what is a shocking sale price, fixed rules do exist for us to review such a case. First, we are an appellate court; we do not retry cases. We cannot sit as jurors who determine facts in law cases, nor chancellors who do the same in chancery courts. Merriman v. Yutterman, 291 Ark. 207, 723 S.W.2d 823 (1987); Black & Black Oil Co. v. Guy R. Smith Drilling Co., 289 Ark. 487, 712 S.W.2d 901 (1986). Factual determinations of chancellors must be upheld unless clearly erroneous. ARCP Rule 52.
When we examine a discretionary decision made by a chancellor, the question is not what we would have done, but whether, as a matter of law, discretion was abused — was the judgment call arbitrary or groundless? Keirs v. Mt. Comfort Enterprises et al., 266 Ark. 523, 587 S.W.2d 8 (1979); Robbins v. Guy, 244 Ark. 590, 426 S.W.2d 393 (1968).
Other principles also apply when we review a case, sometimes omitted from our opinions, but nonetheless applicable to all our decisions. The appellant, the party losing at the trial level, has the burden of demonstrating error. Baldwin Co. v. Ceco Corp., 280 Ark. 519, 659 S.W.2d 941 (1983). The evidence on appeal and all reasonable inferences from that evidence, and the findings of fact by a judge must be reviewed in a light most favorable to the appellee, the party that won at the trial level. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985); Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983).
Accord Mulkey v. White, 219 Ark. 441, 442, 242 S.W.2d 836 (1951); Kellett v. Pocahontas Fed. Sav. & Loan Ass’n, 25 Ark. App. 243, 245-46, 756 S.W.2d 926 (1988); Campbell v. Campbell, 20 Ark. App. 170, 171-72, 725 S.W.2d 585 (1987). See also Estate of Hodges v. Wilkie, 14 Ark. App. 297, 300, 688 S.W.2d 307 (1985).
The property foreclosed upon in this action is worth approximately $48,000.00. If appellant’s bid had been approved and confirmed, the debtors would have been liable for the deficiency of approximately $48,000.00. A bid of one silver dollar for property of this value would without question shock the conscience of the court.
Affirmed.
Mayfield and Rogers, JJ., agree.
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Judith Rogers, Judge.
This is an appeal from the Workers’ Compensation Commission’s order affirming and adopting the administrative law judge’s decision. The ALJ found that appellant’s claim for additional benefits was barred by the statute of limitations. On appeal, appellant argues that there is no substantial evidence to support the Commission’s decision. We disagree and affirm.
The record reveals that appellant suffered a compensable injury on September 18, 1990. Temporary total disability benefits were paid until December 6, 1991. Appellant had been assessed a five percent permanent partial impairment rating that was paid in full on January 28, 1992. On June 23, 1992, appellant visited Dr. Jay Lipke, who was not his treating physician. Appellee’s carrier, Cigna Insurance, refused to pay for this treatment and was never billed for Dr. Lipke’s treatment. On April 6, 1993, appellant filed a claim for additional benefits. Appellee contested the claim on the basis that the statute of limitations barred appellant’s claim.
Arkansas Code Annotated § ll-9-702(b) (Repl. 1993) provides:
(b) Time for Filing for Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater.
Appellant argues on appeal that Dr. Jay Lipke’s treatment on June 23, 1992, tolled the statute of limitations, and that consequently, his request for additional benefits on April 6,1993, was within the one year statutory period. In support of his position, appellant specifically contends that a nurse who worked for his treating physician referred him to Dr. Lipke, constituting a valid referral. We disagree.
Arkansas Code Annotated § 11-9-514(a)(1) (Repl. 1993) provides:
If the employee selects a physician, the commission shall not authorize a change of physician unless the employee first establishes to the satisfaction of the commission that there is a compelling reason or circumstance justifying a change.
The Commission’s authority to characterize a change of physician as a referral has its origin in the Commission’s own Rule 23, which authorizes the Commission to permit deviation from the Commission’s rule when compliance is impossible or impractical. Patrick v. Arkansas Oak Flooring Co., 39 Ark. App. 34, 833 S.W.2d 740 (1992). We held in Electro-Air v. Villines, 16 Ark. App. 102, 697 S.W.2d 932 (1985), that a referral had occurred where the evidence showed that the claimant’s treating physician had referred her to a psychiatrist for specialized treatment. In White v. Lair Oil Co., 20 Ark. App. 136, 725 S.W.2d 10 (1987), we held that a change of physician had occurred when the claimant’s treating physician refused to see him when emergency services were required. We concluded that this refusal effectively released the claimant from his care and that the claimant’s family physician became claimant’s treating physician. Also, in the case of TEC v. Underwood, 33 Ark. App. 116, 802 S.W.2d 481 (1991), we found that a referral occurred when the claimant had moved to Oklahoma, and her treating physician referred her to a physician in Oklahoma. In the above cases, the claimants were referred by their treating physicians or emergency circumstances required a referral for treatment. None of those situations exist in this case.
Here, the record reveals that on May 26, 1992, Janna Craig from Cigna Insurance wrote to appellant regarding his claim. She stated:
I am writing you with regard to your workers’ compensation claim. You need to return to the doctor for final medical evaluation, so that we will know if you have received all the benefits you are entitled.
At one time Attorney Steve Laney informed me you wanted a change of physician. To date I have not received any written confirmation of that request or any written confirmation that Mr. Laney represents you in this matter. Please advise me if you desire a change of physician. If not, please return to your previous doctor.
Appellant testified that he attempted to see Dr. Amal O’Laimey, his authorized treating physician, on June 20, 1992. Appellant said that Dr. O’Laimey was not available so the nurse referred him to Dr. Lipke. Appellant admitted that he did not try to reschedule a time to see Dr. O’Laimey. Interestingly, the record also indicates that appellant was the only one to testify that the nurse at Dr. O’Laimey’s office referred him to Dr. Lipke. Appellant concluded that he saw Dr. Lipke on June 23, 1992, which was three days after he sought treatment by Dr. O’Laimey.
The record indicates that Dr. Lipke’s office contacted Ms. Craig concerning the bill. Ms. Craig testified, however, that she refused to authorize payment for Dr. Lipke’s treatment. She said that she sent the Commission’s Form A-ll to appellant’s attorney on October 12, 1992, and received no response. Ms. Craig testified further that she never received a bill from appellant or from Dr. Lipke’s office. She also stated that she never received a referral slip showing that Dr. O’Laimey’s office had referred appellant to Dr. Lipke. The record contains one letter from Dr. Lipke’s office which does not mention that appellant was referred from Dr. O’Laimey’s office.
Whether treatment is a result of a “referral” rather than a “change of physician” is a factual determination to be made by the Commission. Patrick v. Arkansas Oak Flooring Co., supra. When the Commission’s findings of fact are challenged on appeal, we affirm if they are supported by substantial evi dence. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. We do not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have arrived at the conclusion reached by the Commission. Id.
The Commission found that appellant received unauthorized treatment from Dr. Lipke. After reviewing the record, we cannot say that there is no substantial evidence to support the Commission’s findings that appellant’s treatment by Dr. Lipke was not based on a valid referral and that appellant’s claim was barred by the statute of limitations.
Affirmed.
Mayfield, J. and Bullion, S.J., dissent.
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John Mauzy Pittman, Judge.
This appeal is from a summary judgment that granted appellee a mandatory injunction requiring appellant, J.M. Products, Inc., to issue a stock certificate for 250 of its shares to appellee. In contending that the trial court erred in awarding summary judgment, appellant asserts that a number of questions of fact remained for the trial court’s determination. We find no merit to any of its arguments and affirm.
In March 1990, defendant Anthony Riney pledged a stock certificate for 250 shares of stock in J.M. Products, Inc., to appellee as collateral for a $100,000.00 loan. Appellee made the loan to defendant R.J. Productions, Inc., a corporation solely owned by Riney, and the loan was personally guaranteed by Riney and his wife, Helen Riney. After R.J. Productions, Inc., and the Rineys defaulted on their payments under the note, appellee requested appellant to reissue the stock certificate in appellee’s name. Appellant, however, refused, claiming that the Pulaski County Circuit Court, in Riney v. J.M. Products, Inc., No. 90-5273 (Sept. 5, 1991), had found that Riney improperly obtained the stock certificate. Appellee was not a party to that lawsuit.
Appellee then filed suit against R.J. Productions, Inc., the Rineys, and appellant, seeking judgment jointly and severally in the amount of $102,501.00 together with attorney’s fees. It also requested the court to declare it to have a first lien against the collateral described in the complaint, to grant it possession of such collateral, and to order appellant by mandatory injunction to issue a stock certificate in the name of appellee representing ownership of 250 shares of stock of J.M. Products, Inc. Appellee attached to its complaint the loan agreement between appellee and appellant, the promissory note for $100,000.00, the guaranty agreement signed by the Rineys individually, the stock pledge and security agreement, the stock power transferring the stock certificate to appellee’s name, and a copy of the stock certificate representing 250 shares of common stock made out in favor of Anthony Riney, dated April 16, 1982, and bearing the signatures of Ernest P. Joshua as president of appellant and Thelma L. Joshua as secretary thereof.
In the pleadings and depositions filed with the court, appellant admitted the validity of the signatures on the stock certificate. Appellant also admitted that it received a letter dated March 20, 1990, from appellee’s attorney, requesting that the corporate stock records of appellant be amended to reflect the Stock Pledge, Security Agreement, and Stock Power executed by Tony Riney and Helene Chariot Riney to appellee. On April 19, 1990, appellant responded, advising appellee that appellant had the first right to purchase the common stock of Mr. Tony Riney should R.J. Productions, Inc., or Mr. Riney default on any of the terms or provisions of their loan agreement with appellee and that it be given immediate notification if such default occurs. Appellant’s response made no mention of its claim that Riney had wrongfully obtained the stock certificate. Appellant also admitted that it had no communication of any kind with appellee concerning the status of the stock certificate prior to March 6, 1990; that its president, Ernest P. Joshua, testified in Pulaski County Circuit Court Case No. 90-5273, Riney v. J.M. Products, Inc.; that he “told the Board that [Riney] owned Twenty Five Percent of [appellant] in 1990”; and that appellant had not filed suit against Riney until October 17, 1990.
Based on these pleadings and appellant’s admissions, appellee moved for summary judgment. Attached to its motion were the affidavits of Sam Walls and George Eagen, executive vice presidents of appellee. Walls’ affidavit stated:
Based on a diligent review of ACC’s books and records, Defendants, R.J. Productions, Inc., as primary obligor and Anthony Riney and Helene Chariot Riney as guarantors, are currently indebted to ACC, as of July 26, 1993, in the amount of $105,129.27, with interest accruing per diem at the rate of $30.21. A true and correct copy of the loan payment record is attached hereto as Exhibit “1”.
Eagen’s affidavit stated:
2. At no time during the loan evaluation process and prior to closing was I made aware of any deficiency in the validity of the stock in J.M. Products, Inc. that was pledged by Anthony Riney as partial collateral for the loan from ACC to R.J. Productions, Inc.
3. Mr. Riney represented himself as an officer of J.M. Products. Mr. Riney had copies of audited financial statements of J.M. Products, a closely held corporation, supporting the contention that he was in fact a shareholder.
Appellee was granted summary judgment against separate defendant R.J. Productions, Inc., in the amount of $124,913.64. Appellee was later awarded summary judgment against appellant, J.M. Products., Inc. In that judgment, the chancellor found that the affidavit of George H. Eagen of appellee made a prima facie showing that appellee was a subsequent purchaser for value of the Stock Certificate, that appellee had no knowledge of any defect with respect to the Stock Certificate at the time that it was pledged by Riney, and that the affidavit of Ernest P. Joshua of J.M. Products did not contain any factual assertions negating appellee’s prima facie showing of appellee’s status as a purchaser for value of the Stock Certificate or appellee’s prima facie showing that it had no knowledge of any defect with respect to the Stock Certificate at the time the Stock Certificate was pledged to appellee. The chancellor concluded that, under Ark. Code Ann. § 4-8-202(2) (Repl. 1991), appellee is entitled to and is the lawful owner of 250 shares of the common stock of appellant, and that appellee is entitled to a stock certificate evidencing such ownership and all the attendant rights of being a stockholder of appellant. The judgment ordered appellant to issue a stock certificate in appellee’s name on or before June 10, 1994.
Motions for summary judgment are governed by Rule 56 of the Arkansas Rules of Civil Procedure, which provides that a judgment may be entered if the pleadings, depositions, answers, interrogatories, and admissions on file, in addition to affidavits, if any, show that there is no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. Summary judgment is an extreme remedy which should be allowed only when it is clear that there is no genuine issue of fact and the moving party is entitled to a judgment as a matter of law. Although affidavits and documents in support of motions for summary judgment are construed against the moving party, once a prima facie showing of entitlement to summary judgment is made, the responding party must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Mathews v. Garner, 25 Ark. App. 27, 751 S.W.2d 359 (1988).
For its appeal, appellant argues that summary judgment was in error because questions of fact existed for the trial court’s determination. Appellant first argues that the trial court should not have considered the affidavit of George Eagen in awarding appellee summary judgment because the trial court did not have the opportunity to assess Eagen’s credibility. Appellant, however, has not cited any authority for this argument, nor do we know of any.
Appellant next claims that the trial court erred in finding that appellee was a bona fide purchaser without notice of appellant’s claim. Arkansas Code Annotated § 4-8-302(1) (Repl. 1991) states that “[a] ‘bona fide purchaser’ is a purchaser for value in good faith and without notice of any adverse claim ....” The burden was on appellee to prove that it was a bona fide purchaser. See Gwatney v. Allied Companies, Inc. of Arkansas, 238 Ark. 962, 385 S.W.2d 940 (1965).
The evidence attached to appellee’s motion demonstrated that Riney had possession of the stock certificate when it was given to appellee, that there was nothing on the face of the certificate to give appellee notice that it was invalid, that the signatures on the certificate were valid, and that Riney had copies of the audited financial statements of appellant supporting his claim that he was a shareholder. Based on this evidence, the trial court found that appellee made a prima facie case that it was a bona fide purchaser for value in good faith and without notice of appellant’s claim. It also found that appellant failed to rebut appellee’s case with any evidence.
Appellant refutes this finding and contends that appellee had constructive notice of appellant’s defense to the stock certificate and, therefore, whether appellee was without notice of appellant’s adverse claim was a question of fact. The evidence on which appellant relies for its argument is the affidavit of its president, Ernest Joshua, which states: “[Appellee] had knowledge of the litigation between J.M. and Riney concerning Riney’s ownership of J.M. stock but did not intervene in the litigation.” Assuming that Joshua’s statement is true, appellant still has not presented any evidence of appellee’s knowledge at the time it accepted the stock certificate as collateral. The litigation to which Joshua refers in his affidavit did not occur until seven months after appellee accepted the certificate as collateral.
Appellant also argues that appellee failed to make any effort to establish the validity of the stock certificate prior to accept ing it as collateral and, therefore, appellee’s failure to make such an effort operated as knowledge of appellant’s defense as defined by Ark. Code Ann. § 4-l-201(25)(c) and (27) (Supp. 1993), which provides:
(25) A person has notice of a fact when:
(c) From all the facts and circumstances known to him at the time in question he has reason to know that it exists.
(27) Notice, knowledge, or a notice of notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information.
In support of its argument that appellee had a duty to ascertain the validity of the stock certificate prior to accepting it as collateral, appellant cites First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d 1407 (7th Cir. 1988); Hollywood National Bank v. International Business Machine Corp., 38 Cal. App. 3d 607, 113 Cal. Rptr. 494 (1974); and Insurance Co. of N. Am. v. United States, 561 F. Supp. 106 (E.D. Pa. 1983). We find that these cases are distinguishable from the case at bar and lend no support to appellant’s arguments.
In First National Bank of Cicero, supra, the appellant, who alleged it was a bona fide purchaser, admitted that its agent had not contacted the securities information center as was its normal practice to determine whether the securities were stolen. The district court held:
Under sections 1-201(25) and 8-302, a purchaser of securities will be charged with notice of those adverse claims which were discoverable through adherence to reasonable commercial standards of business conduct. In the present case, compliance with federal regulations requiring the verification of collateral is necessary to support a finding that a bank satisfied reasonable commercial standards.
First National Bank of Cicero v. Lewco Securities Corp., 860 F.2d at 1413-14. In the case at bar, appellant has not cited any regulation that required appellee to check the validity of the stock certificate with appellant.
In Hollywood National Bank v. International Business Machine Corp., 113 Cal. Rptr. at 498-99, the court held that, where no attempt was made to reconcile the transferee’s prior credit record with his possession of a $70,000.00 stock certificate, the circumstances amounted to more than “mere suspicion” and were sufficient to place appellant on notice. The court held that mere knowledge of facts sufficient to put a prudent man on inquiry, without actual knowledge, or mere suspicion of an infirmity or defect of title, would not preclude a transferee from occupying the position of a holder in due course, unless the circumstances or suspicions were so cogent and obvious that to remain passive would amount to bad faith. Here, appellant has not come forward with any evidence that should have made appellee suspicious of Riney’s possession of the stock certificate.
Insurance Company of North America v. United States, supra, concerned the appellant’s subrogor’s failure to follow several industry practices in the subject transaction. No such practices exist in the case at bar.
Appellant also argues that appellee would have discovered that Riney was not a stockholder of appellant if it had investigated the filings in the Secretary of State’s office. Appellant produced a copy of its amended articles of incorporation filed with the Secretary of State on April 5, 1983, which showed there were 800 shares of outstanding stock owned by the Joshuas. Appellant, however, did not produce any evidence to show that it would have been a reasonable business practice for appellee to have checked these filings to look for this evidence. Arkansas law does not require a corporation to file the names of its stock holders with the Secretary of State’s office. See Ark. Code Ann. § 4-26-202 (Repl. 1991).
Furthermore, appellant’s December 31, 1988, audited financial records upon which appellee relied in accepting appellant’s stock certificate as collateral shows that 1,050 shares of stock were outstanding. Appellant also admitted in response to appellee’s request for admission that its president, Ernest Joshua, told “the Board [Riney] owned Twenty Five Percent of [appellant] in 1990.”
Appellant’s argument here is similar to the argument rejected by the supreme court in Byrd v. Security Bank, 250 Ark. 214, 464 S.W.2d 578 (1971):
Appellants say that if the Security Bank had checked in the office of the Circuit Court Clerk, it would have found that the Kennett Bank had filed financing statements from appellants as security, said statements covering substantially the same property which had been covered in the financial statements securing appellee’s indebtedness; that appellee would accordingly have been put on notice that “something was wrong”. We disagree. The evidence reflects that appellee did not learn until June that Parsons had released the financing statements, and that Kennett had a lien on the properties. The Kennett financing statements were not filed until March 30, and it will be recalled that the Security financing statements had been filed in January. Appellee could not possibly have known about the latter filing unless it checked the clerk’s records each day, week, or month to determine if the original financing statements were still in effect. Under the circumstances of this case, we cannot see where there was any duty on appellee to go over and check the records regularly to see if it still held effective security. There simply wasn’t any reason for this to be done. Of course, this litigation could not have arisen except for appellants signing blank notes. The one fact that contributed most to the situation in which appellants now find themselves, is that they imprudently signed these blank instruments, and in doing so, failed to act as prudent persons.
Id. at 218, 464 S.W.2d at 580.
Appellant for its third point argues that appellee also had constructive notice by way of the “staleness” of its claim. For this proposition, it cites Ark. Code Ann. § 4-8-305 (Repl. 1991), which provides:
An act or event that creates a right to immediate performance of the principal obligation represented by a certificated security or sets a date on or after which a certificated security is to be presented or surrendered for redemption or exchange does not itself constitute any notice of adverse claims except in the case of a transfer:
(a) After one (1) year from any date set for presentment or surrender for redemption or exchange; or
(b) After six (6) months from any date set for payment of money against presentation or surrender of the security if funds are available for payment on that date.
Appellant’s argument, however, does not demonstrate how this section is applicable to Riney’s stock certificate except to state that appellee’s “claims should have been made not more than six months after default.” It appears from the undisputed evidence that appellee did bring its claim within six months of Riney’s default. According to appellee’s complaint, R.J. Productions, Inc., made payments on appellant’s note until October 22, 1992. Under the terms of the loan agreement, the borrowers had thirty days to remedy any default. Therefore, the lawsuit filed by appellee on May 6, 1993, was made within six months.
Appellant also contends that appellee did not prove that it was a “purchaser for value,” which it was required to prove in order to be a bona fide purchaser under section 4-8-302. Appellant admitted in its answer to appellee’s complaint that, “on March 6, 1990, Anthony Riney pledged the Stock Certificate to [appellee] as collateral for a loan from [appellee] to R.J. Productions, a corporation in which Anthony Riney and his wife, Helene Chariot, are the sole shareholders.” This undisputed evidence was sufficient to show appellee was a purchaser for value. See Ark. Code Ann. § 4-1-201(44)(a) (Supp. 1993).
Also under this point, appellant argues that appellee should not be allowed to be unjustly enriched at the expense of appellant, even if appellee is a bona fide purchaser. We do not address this argument because appellant has failed to produce any evidence to show that appellee has been unjustly enriched. Furthermore, the summary judgment awarded appellee by the court specifically provides:
[Appellee] shall deal with such J.M. Products stock in accordance with the rights of a secured party under the Uniform Commercial Code with the proceeds if any applied to the judgment, costs, and attorney’s fees awarded to [appellee] against R.J. Productions, Inc., in this proceeding with any remaining proceeds, after payment in full to [appellee], placed into escrow account for further determination by the court of any other party’s interest in said proceeds.
Appellant also argues that Ark. Code Ann. § 4-9-112 (Repl. 1991) required appellee to notify appellant of the status of the collateral, which it contends appellee never did. We disagree. Appellee wrote appellant on two occasions, notifying appellant it held the stock certificate as collateral. Appellant responded to appellee’s March 1990 letter but wrote nothing to indicate its adverse claim or to put appellee on notice that Riney was not the owner of the certificate. On January 21,1992, appellee again wrote appellant regarding the stock certificate, stating:
This letter is to remind your clients; J.M. Products, Inc., Ernest P. Joshua and Thelma L. Joshua; that Arkansas Capital Corporation (“ACC”) has relied and continues to rely on the validity of the Stock Certificate attached hereto. As your clients know, ACC received the Stock Certificate as collateral for a $100,000 loan to R.J. Productions, Inc.
R.J. Productions’ debt to ACC has not been accelerated at this time. However, ACC continues to rely on the attached Stock Certificate as the primary collateral for the repayment of R.J. Productions’ loan. Your clients should conduct their affairs accordingly until such time as R.J. Productions’ debt is repaid in full.
There is no evidence that appellant responded to the letter.
Appellant’s final point concerns its contention that the events at issue violate Article XII, Section 8, of the Arkansas Constitution. This section provides:
No private corporation shall issue stocks or bonds, except for money or property actually received or labor done, and all fictitious increase of stock or indebtedness shall be void; nor shall the stock or bonded indebtedness of any private corporation be increased, except in pursuance of general laws, nor until the consent of the persons holding the larger amount in value of stock shall be obtained at a meeting held after notice given for a period not less than sixty days, in pursuance of law.
Appellant argues that, although the stock was exchanged for value, it did not receive the value, and, therefore, the transaction runs afoul of Article XII, Section 8. We do not agree.
In Gwatney v. Allied Companies, Inc., 238 Ark. 962, 385 S.W.2d 940 (1965), the supreme court held that, if one is a bona fide purchaser for value of stock certificates, then the certificates cannot be canceled and a corporation cannot claim the invalidity of the original issue of a stock certificate as against a person who, subsequent to the original issue, acquired the stock as a bona fide holder. The court in Gwatney relied on Park v. Bank of Lockesburg, 178 Ark. 669, 11 S.W.2d 483 (1928). There, the court held that one who in good faith lent money represented by a note and took the stock certificate as collateral, which was regular in form and carried no notice of any infirmity upon its face, was entitled to enforce its lien as against the claim of the bank for the purchase money of the stock. Appellant argues that Park v. Bank of Lockesburg is not controlling in the case at bar because the bank had some responsibility in the outcome as the stock certificate issued by the bank carried no notice whatever of any infirmity on its face. This same argument, however, can be made of appellant. This lawsuit could have been avoided if appellant’s officers had not signed the certificate.
Appellant also argues that the stock certificate was not a “security” under Ark. Code Ann. § 4-8-101 et seq. (Repl. 1991). Section 4-8-102(l)(a)(i) provides that: “[a] “certificated security” is a share, participation, or other interest in property of or an enterprise of the issuer or an obligation of the issuer which is . . . [represented by an instrument issued in bearer or registered form . . . .” Appellant argues that, in order to be a “security” as defined by Sections 4-8-102(l)(a)(i) et seq., the stock certificate had to be “issued,” and the undisputed evidence here proved that the stock certificate in question was never issued.
In support of its argument, appellant cites Bankhaus Hermann Lampe KG v. Mercantile-Safe Deposit and Trust Co., 466 F. Supp. 1133 (S.D.N.Y. 1979), where the court ruled that, since the certificates were stolen en route from the engraver to the issuer and subsequently forged, they could not meet Article 8’s definition of securities. In doing so, the district court held that a stock certificate that has never been issued as defined by section 3-102(a) of the Uniform Commercial Code is not a security covered by Article 8. Section 4-3-105 states that “issue means the delivery of an instrument by the maker or drawer, whether to a holder or nonholder, for the purpose of giving rights on the instrument to any person.”
Here, appellant concludes that, because the stock certificate in question was never delivered by appellant to Riney, the certificate is not a security and appellee cannot be a bona fide purchaser. We disagree that the district court’s opinion in Bankhaus controls the situation at bar. In that case, the “securities” at issue were blank certificates stolen en route from the engraver to the issuer. Here, the stock certificate in question that was received by the appellee provided:
This certifies that Anthony Riney is the owner of Two Hundred and Fifty Shares of the Capital Stock of . . . transferable only on the books of the Corporation by the holder hereof in person or by Attorney upon surrender of this Certificate properly endorsed. In witness whereof the said Corporation has caused this Certificate to be signed by its duly authorized officers and to be sealed with the Seal of the Corporation.
The certificate in question was originally in the hands of the issuer, appellant, where it was dated April 16, 1982, signed by Ernest P. Joshua as president and Thelma L. Joshua as secretary, and stamped with the seal of the corporation.
We do not find the fact that appellant did not physically deliver the stock certificate to Riney controlling as to whether the stock certificate was a “security” in appellee’s possession. In First American National Bank v. Christian Foundation Life Insurance Co., 242 Ark. 678, 408 S.W.2d 912 (1967), the appellee questioned the validity of certain bearer bonds that were ostensibly issued by the First Methodist Church. The evidence reflected that the church’s agent had duplicate bonds printed that he gave to the appellant for collateral. The appellee attempted to dishonor the bonds because they were fraudulently issued, but the appellant claimed it was a good faith purchaser for value. The court stated that there was no good basis for questioning the appellant’s standing as a good faith purchaser for value as the term is defined in the Uniform Commercial Code. In that case, the supreme court stated:
We think the chancellor should have found all bonds held by bona fide purchasers to be binding obligations of the church. It is plain enough that the church was careless in entrusting its treasurer’s facsimile signature to Institutional Finance and in failing to take the precaution of requiring authentication of the bonds by a manual signature. By contrast, the holders of the bonds acquired then in the ordinary course of business and in circumstances entitling them to the protection afforded to bona fide purchasers.
The case is controlled by the pertinent provisions of the Uniform Commercial Code. Before the adoption of the Code the church might have been held liable by contract to one purchaser and in damages to the other, but the draftsmen of the Code point out in their Comment to our 85-8-202 that the Code simply validates most defective securities in the hands of innocent purchasers, refusing to prefer one such purchaser over another.
242 Ark. at 682, 420 S.W.2d at 914-15.
Furthermore, Ark. Code Ann. § 4-8-202(4) (Repl. 1991) provides that “[a]ll other defenses of the issuer of a certificated or uncertificated security, including nondelivery and conditional delivery of a certificated security, are ineffective against a purchaser for value who has taken without notice of the particular defense.” (Emphasis added.)
In conclusion, we agree with the court’s holding that appellee made a prima facie case that it was a bona fide purchaser and that it did not have any knowledge of appellant’s adverse claim. The burden then shifted to appellant to rebut appellee’s evidence, and it failed to do so. None of the exhibits or statements made in its affidavits were controverted by appellant, nor did appellant present any evidence to create a question of fact as to whether appellee knew of any wrongful taking at the time it received the stock certifícate as collateral.
Affirmed.
Jennings, C.J., and Cooper, J., agree.
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Josephine Linker Hart, Judge.
This appeal is from an order of the Franklin County Circuit Court which, according to appellants John and Darla Verkamp (collectively, Verkamp), set aside a 1976 decree quieting title to both the surface and the mineral interests in Verkamp’s predecessors in title. On appeal, Verkamp raises two points: first, the trial court erred in not applying the three-year statute of limitations found in Ark. Code Ann. § 18-60-510 (Repl. 2006); and second, the trial court erred in setting aside the prior decree without any evidence that the prior decree was based on insufficient evidence. We reverse and remand.
Verkamp is the record owner of certain real estate located in Franklin County, Arkansas. Appellee Floyd E. Sagely Properties, Ltd. (Sagely), is the operator of a gas well located within the same section as Verkamp’s property. In November 1997, Verkamp entered into an oil-and-gas lease with Sonat Exploration, the predecessor in interest to appellee XTO Energy, Inc.
In September 2002, Verkamp filed suit pursuant to Ark. Code Ann. §§ 15-74-603, -604 (Repl. 1994) seeking payment of royalties from Sagely. The complaint alleged that Verkamp owned both the surface and the mineral interests in the property and that Sagely was not paying the royalties to Verkamp. The complaint also sought a declaratoryjudgment determining that Verkamp held title to the mineral rights for the property. Sagely and XTO answered, denying the material allegations of the complaint and asserting that Verkamp had failed to join all necessary parties.
Both parties moved for summary judgment. In their brief in support of the motion, Sagely and XTO argued that the 1976 quiet-title decree could not, as a matter of law, vest title to the mineral interests in Verkamp. Also attached to the brief was a December 1998 title opinion by attorney J.H. Evans (now deceased) in which he opined that the quiet-title decrees were erroneous because they were based on adverse possession of the mineral interests. Evans’s title opinion, however, was not under oath, which is a prerequisite for proof submitted in support of, or opposition to, a motion for summary judgment under Rule 56. In his motion for summary judgment, Verkamp argued that the three-year statute of limitations found in Ark. Code Ann. § 18— 60-510 barred the challenge to the 1976 quiet-title decree. Apparently, there was no hearing on the motions for summary judgment. The trial court, without explanation, granted Sagely and XTO’s motion and denied Verkamp’s motion. This appeal timely followed.
On appeal, Verkamp raises two issues: first, the trial court erred in not applying the three-year statute of limitations; and second, the trial court erred in setting aside the 1976 quiet-title decree without any evidence establishing that the prior decree was based on insufficient evidence.
The supreme court stated our standard of review for a summary judgment in Hisaw v. State Farm Mutual Automobile Insurance Co., 353 Ark. 668, 122 S.W.3d 1 (2003):
[S]ummary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material fact unanswered. 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. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable men might reach different conclusions from those undisputed facts.
353 Ark. at 676, 122 S.W.3d at 4 (internal citations omitted in original).
Although Sagely and XTO sought to dismiss the complaint for Verkamp’s failure to name necessary parties, the real issue is the validity of the 1976 quiet-title action. If the quiet-title decree is valid, there are no other parties necessary for this litigation to proceed. Appellees did not specifically ask the court to set aside the earlier decree but instead asserted that the 1976 decree was void. Further, Sagely did not tender the disputed royalties into the registry of the court or join the other individuals whom it asserts may have an interest in the mineral rights. An interpleader of the royalties into the registry of the court is the course of action set out in Ark. Code Ann. § 15-74-604(d) (Repl. 1994), which would relieve Sagely of the fear of being subjected to double payments of royalties. Sagely, as admitted in its response to a request for admission, is only a stakeholder.
Citing Hall v. Blanford, 254 Ark. 590, 494 S.W.2d 714 (1973); Welch v. Burton, 221 Ark. 173, 252 S.W.2d 411 (1952); and Union Sawmill Co. v. Rowland, 178 Ark. 372, 10 S.W.2d 858 (1928), appellees argue that Ark. Code Ann. § 18-60-510, the three-year statute of limitations, does not apply to known heirs who were not made parties to the earlier quiet-title suit. Those cases construed what is now Ark. Code Ann. § 18-60-508(b), which provides:
The decree in the cause shall not bar or affect the rights of any person who claims through, under, or by virtue of any contract with the petitioner, or who was an adverse occupant of the land at the time the petition was filed, or any person who within seven (7) years preceding had paid the taxes on the land, or a remainderman unless the person shall have been made a defendant in the petition and personally summoned to answer it.
Fiowever, appellees fail to show how any potential claimant comes within the reach of section 18-60-508(b). Likewise, appellees do not identify any individual whom they claim is seeking royalties as an owner or show that a predecessor in title adverse to Verkamp’s ownership was known but not named in the 1976 quiet-title action. Without such a showing, it was error to grant summary judgment for appellees. Our supreme court has held that summary judgment is inappropriate where factual development of a crucial issue is lacking. See Spears v. City of Fordyce, 351 Ark. 305, 92 S.W.3d 38 (2002); Waire v. Joseph, 308 Ark. 528, 825 S.W.2d 594 (1992). In other words, appellees fail to provide any requisite proof that would entitle them to litigate the validity of the 1976 quiet-title decree. Without such proof, section 18-60-510’s limitations period would apply and appellees’ claim is merely a collateral attack on the 1976 decree. A confirmation decree rendered pursuant to Ark. Code Ann. §§ 18-60-501 through 511 is immune from collateral attack, except for jurisdictional defects apparent on the face of the record. Champion v. Williams, 165 Ark. 328, 264 S.W. 972 (1924); Kulbeth v. Drew County Timber Co., 125 Ark. 291, 188 S.W. 810 (1916).
We are mindful of the supreme court’s decision in Gilbreath v. Union Bank, 309 Ark. 360, 830 S.W.2d 854 (1992), which appellees relied upon in support of their argument that the earlier quiet-title decree was defective. However, we believe Gilbreath is inapposite. In that case, the supreme court held that a trustee holding record title to the mineral interests was not properly served with process where the affidavit for a warning order did not conclude that, after making diligent inquiry, the trustee’s whereabouts were unknown. Gilbreath is inapplicable to the present case because, in the 1976 quiet-title action, the affidavit for warning order named Hazell Dell Grissom the only known potential heir of Newton Temple, and stated that her whereabouts were unknown. Also, the attorney ad litem mailed a letter, together with a copy of the quiet-title petition, to her by certified mail, but the letter was returned unclaimed and address unknown. The quiet-title decree contains findings that service was proper, and Sagely has not presented specific proof to the contrary, only having made assertions that there are unspecified heirs of Newton Temple who should have been named. In Gilbreath, it was the party who had not received notice who challenged the validity of the quiet-title decree, while in the present case it is the appellees, who have failed to disclose any connection with any heir, who are challenging the quiet-title decree.
We reverse and remand the trial court’s grant of summary judgment.
Reversed and remanded.
Neal and Vaught, JJ., agree.
Appellees assert that there is also a 1977 quiet-title decree involving some of the same heirs as the 1976 case and that it is relevant to this case. Verkamp disputes the relevance of the 1977 case. For simplicity, we use the term 1976 case to refer to both the 1976 and 1977 cases.
He also opined that there were probably 75 to 100 people with an interest in the mineral rights to the subject property. Evans also concluded that the 1976 and 1977 quiet-title decrees were ineffective as to the mineral interests because service was had only by publication of a warning order and there was no personal service on Hazell Dell Grissom, one of the heirs of the original owner. Evans further stated that many of the heirs conveyed their interests to Irene Williford as trustee before Williford conveyed the interests back. Evans also noted that Williford made later conveyances in the early 1980s.
However, such a decree may be attacked direcdy on any meritorious ground by the filing of a petition in the original proceeding within the three-year period, or it may also be directly attacked by a plenary suit having for its specific purpose the setting aside of the decree for fundamental errors such as fraud or lack of jurisdiction, which would render the'decree void ab initio. Welch, supra.
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David M. Glover, Judge.
Appellant, Jason Wayne Burroughs, was tried by a jury for the offense of manufacturing methamphetamine. He was tried as a habitual offender, fpund guilty, and sentenced to twenty years in the Arkansas Department of Correction. As his sole point of appeal, he contends that the trial court erred in denying his motion to suppress the evidence that was seized from his house because “the officers that furnished the information leading to the issuance of the search warrant were in his home illegally.” We attempted to certify this case to our supreme court but certification was denied. We find merit in appellant’s argument and reverse and remand this case to the trial court for proceedings consistent with this opinion.
The Suppression Hearing
At the suppression hearing, Lieutenant Allen Story, a Hot Springs police officer, testified that on September 9, 2004, he was assisting Arkadelphia police officers who held warrants for a burglary suspect. He said that they went to the residence located at 247 Glade Street in Hot Springs, which was appellant’s residence, and knocked on the door. He related that a female answered the door, that he explained that they had a warrant for the arrest of some individuals, and that he asked for her identification. He said that she informed him her name was Alice Ashmore, and he again asked her for identification. He testified that she then said, “Come in, I’ll get it out of my purse.” He said that he went in, along with Detective Chapmond; that the female went to her purse, got her identification, and gave it to him; that he ran it through ACIC and NCIC; and that it showed there was an outstanding warrant for her through another agency. He stated that he asked her if there was anyone else in the house, and she said there was not.
On cross-examination, he explained that there was a total of five or six officers who approached the house, that all were armed, and that only he was in uniform. He denied hearing a dog barking. He could not recall whether Ashmore was arrested or not. He explained that when he first entered the residence, he watched Ashmore go and get her identification. He said that he did not see any contraband in the room, but that he was not looking. He acknowledged that no one ever told Ashmore that she had the right to refuse entry to the officers. He said that he believed the other officers entered the rooms off the living room, that noises were heard, and that one of the officers said he observed what he thought were the makings of a meth lab. Story said that the officers reported hearing a noise and could not see into the rooms, so he assumed the doors off the living room were closed. On re-direct, Story stated that he did not enter the house to search and that he did not ask for consent to search. On re-cross, he stated that he entered the house because Ashmore invited him in as she was getting her identification and that the purpose of asking for her identification was to find out if she was who she said she was and whether she was related to the individuals for whom they were looking. He acknowledged that they were looking for evidence of her identity, but stated that he did not consider going into the house as looking for evidence.
Detective Chris Chapmond of the Hot Springs Police Department testified that he and Story and at least one other officer went onto the porch of the residence located at 247 Glade Street; that a couple of other officers went around to the side of the house; that Story made contact with a female, identified himself, and explained to her that they were looking for an individual wanted for questioning regarding a burglary or burglaries in Arkadelphia; and that she gave them a name and invited them inside to get her identification. He stated that Story stepped in and went to the right, where the woman’s purse was on the couch. Chapmond said that he looked toward the kitchen and saw what he believed to be bottled acid, iodine salt crystals, and a gas generator (hydrogen peroxide). He also stated that there was a strong odor in the room. He stated that he recognized the odor from his experience working with narcotics. He testified that he and Detective Stringer heard some sounds in the back bedroom; that they asked if anyone else was in the house; that the female, Ms. Ashmore, said no; and that for officer’s safety, they checked both the bedroom and the bathroom. He stated that they found a Mrs. Cotten in the bathtub; that she also had outstanding warrants for her arrest; that there was an active meth lab in the back corner of the bedroom; that the house was secured; that the drug task force was notified; and that Rick Norris secured a search warrant for the premises. He stated that he then left with the Arkadelphia officers.
On cross-examination, Chapmond testified that he did not recall hearing a dog barking; that there could have been a dog, but that he did not recall one; and that if there were a dog, he would have had him secured for officer’s safety. He acknowledged that he did not hear Story advise Ms. Ashmore that she had the right to refuse entry to the officers. He said that on the table in the kitchen, there was camp fuel, Liquid Fire, which is a drain cleaner, and some iodine salt crystals. He testified that he also saw a bottle of hydrogen peroxide, and that those items, plus the smell, led him to believe that they were being used to produce methamphetamine. He stated that there were six officers inside the house prior to the time that they searched the back of the residence. He said that he, Story, Stringer, and three Arkadelphia police officers went into the living room because Ms. Ashmore told Story to come in and that she would get her identification. He acknowledged that it did not take six people to see an identification.
Sergeant Rick Norris of the Hot Springs Police Department testified that he was assigned to the 18th District Drug Task Force as coordinator. He said that on September 9, 2004, he was called to the house at 247 Glade Street in Hot Springs by other officers. He stated that he went to the house, that he looked in through the front door and saw several items, that they secured the residence, and that he went back to get a search warrant. On cross, Norris stated that he based his affidavit on information that he received from the officers who had gone inside the house; if it had not been for their entry, his attention would not have been drawn to that house on that particular day.
For the defense, Allison Ashmore testified that she was at 247 Glade Street on September 9, 2004; that she was asleep on the couch and her dog started barking; and that she got up and heard the police knocking on the door. She said that she went to the door and that they told her they were the police. She stated that she opened the door about a hand length; that the officers told her they were looking for a girl with purple hair; that they told her to put the dog up before she opened the door; that she put the dog in the bedroom; that she opened the door about eight inches wide and saw two officers; that one officer was in uniform and she talked with him; that she told him there was no girl with purple hair there; and that they did not mention anything about burglary suspects or tell her that they had a warrant for anyone. She stated that her hair was blonde with brown roots.
Ms. Ashmore testified that the officers asked if they could come in and look around to see if she was telling the truth. She said that she told them it was not her house, that she had only been staying there for a couple of days, and that she was eight months pregnant. She testified that she told them they could look right there in the living room and kitchen. She stated that they did not tell her she had the right to refuse to let them in the house and that they did not ask her to sign a consent-to-search form. She stated that when they came in, the officer in uniform stood there talking to her while at least three more officers came in behind him and proceeded to go into the kitchen. She said that she told them not to do that but they did anyway. She explained that there were two other rooms and a closet in the house and that all the doors to those rooms were closed; that she had put the dog in the bedroom; that they asked her if anyone else was there and she told them no because she did not know that her mother had come home; that they started yelling, “somebody’s in here,” and slung the bathroom door open with their guns drawn; that her mother was in the bathroom taking a bath; that they let her mother get dressed and had her mother put the dog out; that they then proceeded to go through the rest of the house; that they did not have a search warrant at that time; and that they were opening cabinets and drawers. She stated that they told her to pack a bag; that they “sent her down the road”; and that they took her mother to jail. Ms. Ashmore stated that she was not arrested or issued a citation.
The trial court took the matter under advisement, and in a letter opinion dated April 18, 2005, denied appellant’s motion to suppress, specifically finding “that the officer’s entry into the residence was by spontaneous invitation and not in response to request for consent, so that the provisions of State vs. Brown do not apply.” Appellant was then subsequently tried by a jury and found guilty. In this appeal, he challenges the trial court’s denial of his motion to suppress.
Standard of Revie-w
In reviewing a trial court’s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical fact for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the trial court. Swan v. State, 94 Ark. App. 115, 226 S.W.3d 6 (2006). We defer to the credibility determinations made by the trial judge when weighing and resolving facts and circumstances. Id.
Stated another way, our standard of review for a trial court’s action granting or denying motions to suppress evidence obtained by a warrantless search requires that we make an independent determination based upon the totality of the circumstances, giving respectful consideration to the findings of the trial judge. Breshears v. State, 94 Ark. App. 192, 228 S.W.3d 508 (2006). We give considerable weight to the findings of the trial judge in the resolution of evidentiary conflicts and defer to the superior position of the trial judge to pass upon the credibility of witnesses. Id. Illegal entry by law enforcement officers into the homes of citizens is the “chief evil” the Fourth Amendment is intended to protect against and therefore is of the highest degree of seriousness. Id. It is settled law in this state that warrantless entry into a private residence is presumptively unreasonable under the Fourth Amendment. Id. Nonetheless, that presumption may be overcome if the police officer obtained consent to conduct a warrantless search. Id. As the United States Supreme Court has explained, a firm line has been drawn by the Fourth Amendment at the entrance to the house. Id. (Citing Payton v. New York, 445 U.S. 573 (1980)).
State v. Brown
In State v. Brown, 356 Ark. 460, 474, 156 S.W.3d 722, 732 (2004), which involved a “knock and talk” situation, our supreme court held:
We hold that the failure of the Drug Task Force agents in this case to advise Jaye Brown that she had the right to refuse consent to the search violated her right and the right of Michael Williams against warrandess intrusions into the home, as guaranteed by Article 2, § 15, of the Arkansas Constitution. We affirm the suppression of all evidence seized in this case that flowed from this unconstitutional search. While we do not hold that the Arkansas Constitution requires execution of a written consent form which contains a statement that the home dweller has the right to refuse consent, this undoubtedly would be the better practice for law enforcement to follow.
Following the supreme court’s decision in Brown, Rule 11.1(c) of the Arkansas Rules of Criminal Procedure was amended to provide:
(c) A search of a dwelling based on consent shall not be valid under this rule unless the person giving the consent was advised of the right to refuse consent. For purposes of this subsection, a “dwelling” means a building or other structure where any person lives or which is customarily used for overnight accommodation of persons. Each unit of a structure divided into separately occupied units is itself a dwelling.
(Emphasis added.) In Stone v. State, 348 Ark. App. 661, 669, 74 S.W.3d 591, 595-96 (2002), our supreme court explained:
A warrantless entry into a private home is presumptively unreasonable under the Fourth Amendment. However, the presumption of unreasonableness may be overcome if the law-enforcement officer obtained the consent of the homeowner to conduct a warrantless search.
(Citations omitted.) Arkansas Rule of Criminal Procedure 10.1 (2005), defines search as
any intrusion other than an arrest, by an officer . . . upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intmsion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individual’s rights under the Constitution of the United States or this state.
Further, a search occurs whenever something not previously in plain view becomes exposed to an investigating officer. McDonald v. State, 354 Ark. 216, 119 S.W.3d 41 (2003).
Flere, the basis relied upon by the trial court in denying appellant’s motion to suppress was its specific finding that the officer’s entry into the home was by “spontaneous invitation” and not in response to a request for consent. Our difficulty has been in understanding how Ms. Ashmore’s “spontaneous invitation” takes this case out of the purview of Brown, supra. After Brown, a search of a dwelling — even one based upon consent — is not valid “unless the person giving the consent was advised of the right to refuse consent.” The officers were very candid in acknowledging that they did not advise Ms. Ashmore of the right to refuse consent.
The State has the burden of proof in suppression cases because all warrantless searches are unreasonable unless shown to be within one of the exceptions to the rule that a search must rest upon a valid warrant, and the burden of proof is on those who seek to justify it. Mays v. State, 76 Ark. App. 169, 61 S.W.3d 919 (2001). From the evidence presented, the officers were not at the residence to search for drugs, rather they were there either searching for persons, i.e., the persons for whom they had arrest warrants, or, at least, they were there searching for evidence of Ms. Ashmore’s identity. In fact, Story explained, “We were looking for evidence of her identity, but I wouldn’t consider that going into the house looking for evidence.” The candid testimony presented by the State in the instant suppression hearing established that the officers were at the residence to determine if the persons on whom they wanted to serve arrest warrants were actually at the residence. Accordingly, we have determined that the situation falls in the category of a “knock and talk” because the officers were “searching” for individuals for whom they had arrest warrants. They were not sure that those persons were actually located at 247 Glade Street. Therefore, they approached the address to “knock and talk” their way to finding the persons for whom they had arrest warrants.
As quoted previously from the Bulloch case, Rule 10.1 of the Arkansas Rules of Criminal Procedure explains that a “search” is
any intrusion other than an arrest, by an officer . . . upon an individual’s person, property, or privacy, for the purpose of seizing individuals or things or obtaining information by inspection or surveillance, if such intrusion, in the absence of legal authority or sufficient consent, would be a civil wrong, criminal offense, or violation of the individuals’ rights under the Constitution of the United States or this state.
(Emphasis added.) Because we have concluded that the facts of this case fit more in the category of a “search” than in the straight service of arrest warrants, the only “sufficient consent” would have been consent preceded by advice of the right to refuse consent, as explained in Brown, supra, and as stated in Arkansas Rule of Criminal Procedure 11.1, which was not done here. A search by any other name is still a search, and this search of the dwelling should have been preceded by advising Ms. Ashmore that she did not have to give consent. Consequently, we hold that the trial court erred in denying appellant’s motion to suppress. We reverse and remand this case for proceedings that are consistent with this opinion.
Reversed and remanded.
Hart and Roaf, JJ., agree.
Vaught, J., concurs.
Bird and Crabtree, JJ., dissent.
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James R. Cooper, Judge.
The appellant, W.D. Moore, filed suit against the executrix of his deceased brother’s estate, the appellee Hattie Moore, alleging that he was entitled to one-half of the stock of a corporation, Arkansas Parts Warehouse, Inc. W.D. Moore based his complaint on a 1952 contract executed by the brothers which provided that W.D. Moore was to be the beneficial owner of one-half of the outstanding stock of the corporation, and that Doyle Moore was to hold the title in his name. W.D. Moore alleged that his brother was the trustee for his one-half of the stock, and asked the court to find that there was an implied, resulting, or constructive trust.
The other appellant, intervenor Evelyn Moore, is the estranged wife of the appellant, W.D. Moore. In her complaint filed August 5,1985, she alleged that she was a third party beneficiary to the 1952 contract, and that both brothers had committed fraud against her by lying during depositions taken during pending divorce proceedings and attempting to hide the true ownership of the corporation’s stock and other property.
The appellee answered, denying the allegations and pleading the affirmative defenses of the statute of non-claim, statute of limitations, estoppel, and laches. A hearing was held on January 21, 1986, and by agreement of the parties, the chancellor, first heard the arguments of counsel on the affirmative defenses. Ruling from the bench, the chancellor dismissed Evelyn Moore’s claims. A decree, dated April 22,1986, was entered nunc pro tunc dismissing the claims of both appellants. However, before the entry of the written order, the appellants attempted to amend their complaint. In the amended complaint, W.D. Moore alleged that he was also entitled to one-half ownership of two parcels of real estate, and he added the other appellees as necessary parties, alleging that they had been wrongfully issued stock. The chancellor also dismissed the amended complaint on the grounds of res judicata, collateral estoppel, statute of non-claim, statute of limitations, unclean hands and equitable estoppel.
In this appeal, the appellants argue that the chancellor erred in dismissing their complaints on the grounds of non-claim and statute of limitations, and that the chancellor erred in dismissing their amended complaints. The appellant, Evelyn Moore, also argues that the trial court erred in dismissing her complaint in intervention based upon the fact that she was not a third party beneficiary to the contract, and that he erred in dismissing her fraud claim without taking any evidence. We find the trial court was correct in dismissing the claims of the intervenor, but erred in dismissing the claims of W.D. Moore.
For the sake of clarity, we will first address Evelyn Moore’s arguments, then the arguments of W.D. Moore concerning the dismissal of the complaint, and then the amended complaint. Only facts necessary to an understanding of the issues involved will be recited.
THE TRIAL COURT DID NOT ERR IN DISMISSING THE COMPLAINTS OF THE APPELLANT/ INTERVENOR, EVELYN MOORE.
The chancellor first found that the intervenor, Evelyn Moore, had no interest in the stock in her own right, and we agree. Any rights she may have had in the stock, or in the real property, would vest through her relationship with her husband, W.D. Moore. At the time of the hearing they had been separated since 1974, and, even though a divorce was pending, they had not been divorced. Arkansas Statutes Annotated § 34-1214(a) (Supp. 1985) states that marital property shall be distributed at the time the divorce decree is entered. A chancellor has no authority to dispose of property rights in an award of separate maintenance. Coleman v. Coleman, 7 Ark. App. 280, 648 S.W.2d 75 (1983). Therefore, even if the chancellor had heard the merits of the case and decided in favor of W.D. Moore, he would have had no authority to issue the intervenor her share.
The appellant’s argument that she is a third party beneficiary to the contract between the two brothers is also without merit. There is a presumption that parties contract only for the benefit of themselves, and a contract will not be considered as having been made for the use and benefit of a third party unless it clearly appears that this was the intention of the parties. Brown v. Summerlin Associates, Inc., 272 Ark. 298, 614 S.W.2d 227 (1981). Nowhere does the intervenor’s name appear in the 1952, or later, contracts. At the time the contract was executed, the brothers believed that it was a violation of the Fair Trade Laws to operate their auto parts business at both the wholesale and retail levels. Therefore, they dissolved their partnership and issued all of the stock in the new corporation to the now-deceased brother. The contract stated that W.D. Moore had beneficial ownership in one-half of the stock of the corporation. The only other written contract executed by the brothers is one which provided for the continuity of the business in the case of death or disability of one of the brothers. However, that contract was later rescinded by a written agreement signed by both brothers and their wives.
The appellant’s arguments regarding fraud are also meritless. It is true that, in some circumstances, the wife may be able to sue her husband for tortious fraud. See Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986); Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957). However, the intervenor admitted that she suspected in 1974 that her husband and his brother had lied and were attempting to defraud her. Therefore, the trial court was correct in dismissing any fraud claim the intervenor may have had on the grounds of the statute of limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962).
THE TRIAL COURT ERRED IN DISMISSING W.D. MOORE’S CLAIM TO THE STOCK ON THE BASIS OF THE STATUTE OF NON-CLAIM.
The trial court found that W.D. Moore’s claim to the stock was based on breach of trust and that it was barred by the statute of non-claim, which, at the time of Doyle Moore’s death, provided that contract actions against a decedent’s estate were to be filed or verified to the personal representative within six months after the date of the first publication of notice to creditors or be forever barred. Ark. Stat. Ann. § 62-2601(a) (Repl. 1971). The brother, Doyle Moore, died on September 1,1982, and notice to creditors was first published on September 17, 1982. W.D. Moore’s complaint was not filed until 1985. However, we find that W.D. Moore’s complaint was timely filed because his cause of action was based on breach of title.
The statute of non-claim does not refer to claims of title or for the recovery of property, as claims of such character are not claims against the estate of the deceased. Morton v. Yell, 239 Ark. 195, 388 S.W.2d 88 (1965); Fred v. Asbury, 105 Ark. 494, 152 S.W. 155 (1912). This rule clearly applies to the recovery of real estate. The appellees argue that the rule applies only to real estate. We disagree.
The purpose of the statute of non-claim is to facilitate payment of claims against an estate within a particular time period, and not to defeat a just claim on a technicality that might entrap the claimant. Parham v. Pelegrin, 468 F. 2d 719 (8th Cir. 1972). This purpose is not advanced by limiting the exception to claims for real estate, especially when, as in the case at bar, the claimant is not seeking recovery of a debt, but is asking the representative of the decedent’s estate to return to him property that belongs to him. As stated in C.J.S.:
[Presentation is ordinarily required of all claims against [the] decedent, the term “claims” comprehending such debts or demands as might have been enforced against the decedent by personal actions for the recovery of money; but claims of title or for the possession or recovery of specific property need not be presented.
34 C.J.S. Executors and Administrators § 398 (1942). In the present case, W.D. Moore alleges that identifiable personal property in the hands of the administrator of Doyle Moore’s estate belongs to him; he is not claiming that the stock is owed to him as a debt or claiming money for the value of the stock. Therefore, we hold that the chancellor erred in dismissing the complaint as it pertained to the stock.
THE TRIAL COURT ERRED IN DISMISSING W.D. MOORE’S CLAIM TO CERTAIN REAL ESTATE BASED ON THE STATUTE OF LIMITATIONS.
Although the issues concerning the real estate were not raised by W.D. Moore in his first complaint, the chancellor allowed the attorneys to argue the affirmative defenses pled by the appellees as they applied to the real estate. One tract in question, located in Little Rock, is a parcel of land on which the business is now situated, purchased by Doyle and Hattie Moore. The other parcel of land is located in Fayetteville, Arkansas.
W.D. Moore again bases his claim on the 1952 contract. That contract provided that both of the brothers would own one-half of any commercial enterprise either is engaged in, and the only exclusions were the respective homes and personal property of the parties, or any real estate purchased by them for speculation out of individual funds.
The trial court found that, if a trust relationship existed, the appellant, W.D. Moore, was put on constructive notice that the trust was being repudiated when Doyle Moore conveyed the Little Rock property to the Doyle Moore Investment Trust on December 31,1976, and thus his claim was barred by the statute of limitations. We disagree.
In order to set the statute of limitations in motion in favor of the trustee, the trust must terminate as by its own limitation or by settlement of the parties, or there must be a repudiation of the trust by the trustee and an assertion of an adverse claim by him, and the fact made known to the beneficiary of the trust. McPherson v. McPherson, 258 Ark. 257, 523 S.W.2d 623 (1975). When the statute of limitations has been pled, the party relying on it has the burden of proving those facts giving rise to it. Beeson v. Beeson, 11 Ark. App. 79, 667 S.W.2d 368 (1984).
The appellees argue on appeal that the trust was repudiated in 1976 when Doyle Moore conveyed the land to the Doyle Moore Investment Trust. We cannot find any evidence in the record that W.D. Moore had knowledge of this conveyance. We do not agree that the mere recordation of the deeds put W.D. Moore on constructive notice. In Beeson, supra, the recordation of the deeds was held to be a repudiation because the deeds conveying the land to the trustee were executed with the understanding that they were not to be recorded during the lifetime of the beneficiary. Also cited by the appellees is the case of Waller v. Waller, 15 Ark. App. 336, 693 S.W.2d 61 (1985). In that case the appellee, who was the ex-wife of the appellant, used her funds to purchase a home, but took title as husband and wife. Later, the appellant refused to convey the property to the appellee when she so requested, but he still recognized her as the sole owner. We held there that the appellee relied on the appellant’s actions recognizing her as the lawful owner, and held that the statute of limitations did not run.
In the case at bar, W.D. Moore had no knowledge of any repudiation until Hattie Moore fired him and evicted him from the premises in December 1984. From the time the property was purchased in the names of Hattie and Doyle Moore, through the time the property was conveyed, and continuing up until the point in time that Hattie Moore dismissed him, W.D. Moore worked at the company in the same capacity he always had; he drove a company car, used company credit cards and was paid by the company in the same manner as in the years before his brother’s death. We hold that the evidence will not support a finding that the trust was repudiated in 1976. The document giving rise to a possible trust relationship does not forbid conveying the land, there is no evidence that W.D. Moore had any knowledge that the land had been conveyed nor is there any evidence that the appellees made any changes in company management sufficient to put W.D. Moore on notice that a trust relationship had been repudiated.
We do not mean to suggest that a trust did in fact exist. That is a matter for the trial court to decide after hearing all the evidence. We only hold that if a trust relationship did exist, it was not repudiated until December 1984, and thus, the statute of limitations did not begin to run until then.
THE TRIAL COURT ERRED IN DISMISSING THE AMENDED AND SUBSTITUTED COMPLAINT OF W.D. MOORE.
W.D. Moore filed an amended complaint on April 14,1986, adding the other appellees as co-defendants and alleging that a fiduciary relationship existed between Doyle and W.D. Moore. The amended complaint also included the claims regarding the real property. The chancellor dismissed the complaint, stating that the appellants were attempting to add new causes of action and new parties. He also found that the amended complaint was barred by res judicata, statute of limitations, laches, equitable estoppel, and the doctrine of unclean hands.
It was error for the trial court to dismiss the amended complaint based on res judicata because the amended complaint was filed before the trial court issued its order. The appellees argue that res judicata does apply because the trial court entered its order nunc pro tunc and that the order relates back to the date of trial. We disagree.
A nunc pro tunc order may be entered to make the court’s record speak the truth or to show that which actually occurred. Southern Farm Bureau Casualty Insurance Co. v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964). However, it may not be used to accomplish something which ought to have been done but was not done. Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961); Dickey v. Clark, 192 Ark. 67, 90 S. W.2d 236 (1936). Courts are not permitted to enter a nunc pro tunc order simply because such order should have been entered at that time; rather nunc pro tunc orders are only properly issued where such orders were properly made, but through clerical misprision were not entered. Canal Insurance Co. v. Arney, 258 Ark. 893, 539 S.W.2d 178 (1975). A judgment or decree is effective only when it is entered by filing with the clerk as provided by ARCP Rules 58 and 79. Koelzer v. Bagley, 13 Ark. App. 48, 680 S.W.2d 111 (1984). Thus, res judicata could not apply to the amended complaint because it was filed prior to the date the judgment was entered and became effective.
The discussion of the dismissal on the grounds of the statute of non-claim and statute of limitations also applies to the dismissal of the amended complaint on the grounds of the statute of limitations and statute of non-claim. Basing the dismissal on laches was also error. We have found that W.D. Moore’s cause of action arose in December 1984, when Hattie Moore dismissed him. W.D. Moore filed his complaint a few months later on February 19,1985. Laches refers to the inequity caused by unreasonable delay where the party claiming the defense of laches has changed his position to his detriment. Beeson v. Beeson, supra. We can find no unreasonable delay on the part of W.D. Moore nor can we find any facts which would support a conclusion that the appellees relied to their detriment on an unreasonable delay.
The chancellor also stated in the order dismissing the amended complaint that the appellant was attempting to add new causes actions and new parties. However, we fail to see how the amended complaint addresses any new causes of action. While W.D. Moore made no claim regarding the real estate in his original complaint, the trial court did allow the appellant to present his cause of action at the pre-trial hearing and allowed the attorneys for all parties to argue the merits of the affirmative defenses as they applied to the real estate. Thus, the allegations regarding the real estate cannot be called new causes of action. The additional parties were beneficiaries of Doyle Moore’s will and were necessary parties to the action. See ARCP Rule 19(a). Therefore, it was error for the chancellor to dismiss the amended complaint on the ground that W.D. Moore was attempting to add new parties and causes of action.
It was also error for the trial court to dismiss the amended complaint on the grounds of unclean hands. The chancellor apparently mentioned this doctrine because W.D. Moore, in an attempt to prevent his estranged wife from receiving her marital share of the company, stated in a deposition that he did not own any stock, and that his brother, Doyle Moore, owned it all. However, the appellees in this case were not the victims of the alleged attempted fraud and it is clear that Doyle Moore was an active participant in the scheme. One guilty of fraud may not invoke the unclean hands doctrine. Anthony v. First National Bank of Magnolia, 244 Ark. 1015, 431 S.W.2d 267 (1968). If the unclean hands doctrine is used to defeat a suit, it must have an immediate and necessary relation to the equity which the complainant seeks to enforce against the defendant, and the party complaining of the wrong must have been injured thereby to justify the application of the principle of unclean hands. McCune v. Brown, 8 Ark. App. 51, 648 S. W.2d 811 (1983). The purpose of the doctrine is to secure justice and equity and not to aid one in an effort to acquire property to which he has no right. McCune, supra. Since Doyle Moore was, according to the testimony, an active participant in the conduct sought to be used to bar W.D. Moore’s claim, equity should not use the doctrine to aid Doyle Moore’s estate.
The final issue is whether the amended complaint is barred by equitable estoppel. We hold that the trial court erred in finding that it is. Again the trial court based its finding on the statements W.D. Moore made in the depositions taken in contemplation of his divorce.
To successfully assert the defense of equitable estoppel four elements must be shown:
1) the party to be estopped must know the facts; and,
2) he must intend that his conduct shall be acted on or must so act that the party asserting estoppel has a right to believe the other party so intended; and,
3) the party asserting estoppel must be ignorant of the facts; and,
4) the party asserting estoppel must rely on the other’s conduct to his detriment.
Linda Elena Askew Trust v. Hopkins, 15 Ark. App. 19, 688 S.W.2d 316 (1985); Wells v. Everett, 5 Ark. App. 303, 635 S.W.2d 294 (1982).
The evidence in this case simply will not support affirmative findings on all of these elements. There is no evidence that W.D. Moore intended his brother and his family to believe that he had no interest in the stock and property, and W.D. Moore’s conduct indicates the opposite. He continued to work for the company, had a company credit card, and drove a company car. We cannot find any evidence in the record that indicates that Hattie Moore and the other appellees were ignorant of the true facts. There has been no showing that any of the appellees relied to their detriment on W.D. Moore’s conduct or statements.
In summary, we affirm the dismissal of the complaint of the appellant/intervenor, but we reverse the trial court’s dismissal of the complaint and amended and supplemental complaint of the appellant W.D. Moore, and we remand the case to the trial court for further proceedings consistent with this opinion.
Affirmed in part.
Reversed and remanded in part.
Coulson and Mayfield, JJ., agree.
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Donald L. Corbin, Chief Judge.
This appeal comes to us from the Workers’ Compensation Commission. Appellant, Hazel Burks, the widow of the deceased employee, Harry Burks, appeals the decision of the full Commission denying her death benefits. We affirm.
Mr. Burks was employed by appellee, Anthony Timber-lands, on April 19, 1984, when he was shot by a fellow employee, Frank Bailey. Bailey was convicted of first degree murder and sentenced to twenty years in the Arkansas Department of Correction. Appellant brought this claim against appellee for death benefits asserting that the argument between Burks and Bailey arose in the course of Burks’s employment and was a result of his employment.
The evidence showed that Burks and Bailey argued during work on April 19,1984. There was testimony that a brief struggle of sorts ensued and Bailey subsequently left work before quitting time. Approximately 3 hours later, Bailey met Burks away from the work place after both men had left work and shot him. A witness to the shooting testified that he did not hear the words spoken and could only say that one of the men raised his hands as if he was pleading for his life but the other man shot him anyway. There was also testimony that the two men had a confrontation at work that day after Bailey failed to immediately shut down an assembly line upon Burks’s request. A witness heard Bailey tell Burks that he had not heard Burks’s request. While the witnesses were able to tell by mannerisms and facial expressions that the two men were arguing, they could not hear the actual words that were spoken. One of the witnesses said that Burks “had his arm extended toward Bailey, which Bailey tried to ward off.” Bailey then left, telling a supervisor that he was resigning because Burks had hit him.
The Administrative Law Judge found that appellant failed to show by a preponderance of the evidence that Burks’s death arose in the course of his employment. Appellant appealed to the Commission. The full Commission affirmed the decision of the Administrative Law Judge, without dissent, and held that appellant failed to prove her contention that Burks’s death arose out of his employment. The Commission concluded as follows:
We do not know whether Bailey shot Burks because he was angry about being asked to shut down the line, because Burks allegedly cursed and/or struck him (or attempted to), or because of some personal reason having no connection with the employment. Rather, we can only find from the testimony that Bailey and Burks had words after Burks wanted the line shut down and Bailey delayed in doing so. Following this confrontation, we know that Bailey left the job and that he apparently went home and fetched his shotgun, taking it to the location where he encountered Burks on the latter’s way home. We do not know what was said during the second confrontation or why Bailey shot Burks. Only Frank Bailey can explain his reasons for killing Burks, and no effort was made to obtain his testimony in person or by deposition.
To surmise that the slaying was employment-related, even though no one heard the words of either quarrel, would be to engage in conjecture or speculation. Conjecture and speculation, no matter how plausible, cannot supply the place of proof. Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979).
Appellant argues two points for reversal: (1) The Commission erred in its analysis of the evidence establishing the causal relationship of the decedent to his job, and (2) the claim is compensable under the positional risk doctrine.
The Arkansas Supreme Court has dealt with the question of whether causal connection with the employment may be shown by connecting with the employment the subject matter of the dispute leading to the assault in the case of Westark Specialities, Inc. v. Lindsey, 259 Ark. 351, 532 S.W.2d 757 (1976). In Westark the court held that injuries resulting from an assault are compensable where the assault is causally related to the employment, but that such injuries are not compensable where the assault arises out of purely personal reasons. The court quoted 1 Larson, The Law of Workmen’s Compensation § 11, and held that assaults arise out of the employment either if the risk of assault is increased by the nature or the setting of the work, or if the reason for the assault was a quarrel having its origin in work, and a causal connection with the employment may be shown by connecting the subject matter of the dispute leading to the assault with the employment. Westark, 259 Ark. at 353, 532 S.W.2d at 759.
The burden is upon the claimant to prove that the injury arose in the course of the employment and additionally, that it grew out of or resulted from the employment. Bagwell v. Falcon Jet Corp., 8 Ark. App. 192, 649 S.W.2d 841 (1983). On appeal the evidence is viewed in the light most favorable to the finding of the Commission and is given its strongest probative value in favor of its order. The issue is not whether the evidence would support a contrary finding. The extent of our inquiry is to determine if the finding of the Commission is supported by substantial evidence and even where a preponderance of the evidence might indicate a contrary result we will affirm if reasonable minds could reach the Commission’s conclusion. It is also well settled that the Commission is better equipped by specialization, insight, and experience to translate, analyze, and determine issues and to translate evidence into findings of fact. Ridgeway Pulpwood v. Baker, 7 Ark. App. 214, 646 S.W.2d 711 (1983).
In Westark the Commission found that the claimant’s injury was compensable and the Arkansas Supreme Court affirmed. In that case two of the claimant’s co-employees, Brown and Yut-terman, were observed in an argument by their foreman. Brown was fired by the foreman. After being discharged, Brown waited outside the building for Yutterman to get off work and then asked him “why he had gotten him fired.” An argument ensued between them. The claimant and his uncle had walked to the uncle’s car where it was parked on a lot, adjacent to the building, regularly used and made available to the employees. They got into the car and were endorsing their pay checks when the claimant unexpectedly suffered a bullet wound to one of his eyes from a gun fired by Brown. The claimant and his uncle testified that as they sat in the car endorsing their checks they observed Brown and Yutterman standing by the corner of the building engaged in an argument. The uncle testified that Brown had a gun pointed toward Yutterman’s head. Yutterman slapped at Brown and then the uncle heard the gun fire. The bullet hit his car and he heard the claimant exclaim that he was hit in the eye. The court found that there was substantial evidence that the claimant’s injury was the result of a work-related quarrel arising out of and causally related to his employment.
In the case at bar the testimony concerning the subject matter of the dispute was from witnesses who saw the arguments, but who did not hear what was said during those arguments. The shooting did not occur immediately during the on-the-job argument but occurred after work and off the employer’s premises. There was testimony that there was another argument at the time of the shooting, yet there was no testimony concerning the subject matter of that argument.
The Commission found that appellant did not establish that the death arose out of the course of the employment and we find that there is substantial evidence to support that finding. The claimant has the burden of proving that the injury arose out of the course of the employment and appellant did not meet this burden.
The positional risk argument made by appellant has no merit. Larson’s treatise explains that the theory behind this risk is that when one finds himself at the scene of an accident, not because he voluntarily appeared there but because his employer required him to be there, the injuries he may suffer by reason of such accident “arise out of the course of the employment, if it be that he was employed and his employment required him to be at the place of the accident when the accident occurred.” 1 A. Larson, The Law of Workmen’s Compensation § 10.22 (1986). This theory is not applicable here because the risk the decedent was exposed to was neither neutral nor did the shooting occur at a place the employer required the decedent to be. See Adkins v. Teledyne Exploration Co., 8 Ark. App. 342, 652 S.W.2d 55 (1983); 1 Larson, The Law of Workmen’s Compensation, § 6.50 (1986). Therefore, we find no merit in appellant’s second argument for reversal.
For the reasons stated above we affirm the decision of the Commission.
Affirmed.
Jennings and Coulson, JJ., agree.
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Donald L. Corbin, Chief Judge.
Appellant brings this appeal from a divorce decree entered by the Ashley County Chancery Court. He brings five points for reversal. First, appellant contends the chancery court lacked jurisdiction because residence of the appellee was not corroborated as required under Arkansas Statutes Annotated Section 34-1208 (Repl. 1962); second, appellant claims that the chancellor erred in awarding appellee a divorce because there was not sufficient corroboration of her grounds for divorce; third, appellant contends appellee did not establish sufficient grounds to entitle her to a divorce; fourth, appellant contends the award of alimony by the chancellor was erroneous; finally, appellant claims the chancellor abused his discretion in awarding attorney’s fees to appellee. We agree with appellant that appellee failed to corroborate her grounds for divorce. Accordingly, appellee’s cause of action must fail, and we reverse and dismiss.
Appellee brought this action for divorce against appellant, who answered and counterclaimed. Shortly before trial, the parties entered into a stipulation agreement reciting that only four major areas of disagreement remained between them for resolution by the court, and appellant withdrew his counterclaim. At the beginning of the trial, the chancellor stated that he understood appellant was waiving the requirement of corroboration of grounds and requested that any decree which might eventually be entered take care of the written waiver required by Arkansas Statutes Annotated Section 34-1207.1 (Supp. 1985). Nevertheless, appellant never executed a writing waiving grounds for divorce, and appellee offered no corroboration of grounds at trial.
Section 34-1207.1 provides in pertinent part as follows: “[h]ereafter in uncontested divorce suits corroboration of plaintiffs ground or grounds for divorce shall not be necessary nor required. In contested suits corroboration of the injured party’s grounds may be expressly waived in writing by the other spouse.” The statute is clear and unambiguous: a party seeking a divorce must prove and corroborate grounds unless the other party to the divorce action expressly waives corroboration in writing.
“Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated.” Russell v. Russell, 19 Ark. App. 119, 121, 717 S.W.2d 820 (1986); Harpoley. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984); Copeland v. Copeland, 2 Ark. App. 55, 616 S.W.2d 773 (1981). However, “[i]n a contested divorce case, the required corroboration of grounds for divorce may be slight.” Russell, supra, at 121; Hilburn v. Hilburn, 287 Ark. 50, 696 S.W.2d 718 (1985). “This court has defined corroboration as testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that the material testimony of that witness is true.” Russell, supra, at 121; Anderson v. Anderson, 269 Ark. 751, 600 S.W.2d 438 (Ark. App. 1980). We review chancery cases de novo on appeal, and findings of the chancellor will not be reversed unless clearly erroneous or clearly against a preponderance of the evidence. Andres v. Andres, 1 Ark. App. 75, 613 S.W.2d 404 (1981); ARCP Rule 52(a).
The record reflects that appellee testified to facts which, if believed, might entitle her to divorce. However, upon review of the record in this case, we cannot find one scintilla of evidence tending to even slightly corroborate any of appellee’s grounds for divorce. Nor can we find any express written waiver by appellant of the requirement that appellee corroborate her grounds, regardless of any understandings verbalized by the parties prior to trial of this case. Accordingly, the decision of the chancellor was clearly erroneous, and we reverse and dismiss on appellant’s Point II. Since appellee’s cause of action must fail for lack of corroboration of her grounds for divorce, we need not address appellant’s remaining points for reversal.
733 S.W.2d 743
Reversed and dismissed.
Mayfield and Coulson, JJ., agree.
Supplemental Opinion on Denial of Rehearing July 15, 1987
Donald L. Corbin, Chief Justice. Both appellant, Raymond Henry Rachel, and appellee, Christine S. Rachel, have filed petitions for rehearing.
Appellee has filed a petition for rehearing contending there was substantial compliance with Arkansas Statutes Annotated § 34-1207.1 (Supp. 1985) requiring written waiver of corroboration of grounds and secondly, that appellant is precluded from relief on appeal under the doctrines of invited error and estoppel.
Appellant also filed a petition for rehearing contending the case should be reversed and remanded for the sole purpose of recovery and restitution of property taken and sums paid under the erroneous decree. We deny the petitions for rehearing but desire to elucidate the issues.
Law regarding the formation and dissolution of marriage is clearly defined in historical precedent. In Maynard v. Hill, 125 U.S. 190 (1888), the Supreme Court said: “Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature.” The New York Court of Appeals, in Fearon v. Treanor, 272 N.Y. 268, 5 N.E.2d 815 (1936), made a similar statement: “Marriage is more than a personal relation between a man and woman. It is a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regu lated and controlled by law based on principles of public policy affecting the welfare of the people of the state.” More recently the United States Supreme Court has said in Boddie v. Connecticut, 401 U.S. 371, 376 (1971):
As this Court on more than one occasion has recognized, marriage involves interests of basic importance in our society.. . . It is not surprising, then, that the States have seen fit to oversee many aspects of that institution. Without a prior judicial imprimatur, individuals may freely enter into and rescind commercial contracts, for example, but we are unaware of any jurisdiction where private citizens may covenant for or dissolve marriages without state approval.
Arkansas has historically followed the rationale behind the above cases as evidenced by statute and case law. “A divorce proceeding is one in which the public is interested. The parties can waive nothing essential to the validity of the proceeding, and all statutory requirements must be observed.” Widders v. Widders, 207 Ark. 596, 182 S.W.2d 209 (1944).
“Divorce is a creature of statute and can only be granted when statutory grounds have been proved and corroborated.” Russell v. Russell, 19 Ark. App. 119, 717 S.W.2d 820 (1986). “This court has defined corroboration as testimony of some substantial fact or circumstance independent of the statement of a witness which leads an impartial and reasonable mind to believe that the material testimony of that witness is true.” Russell, supra, at 121. The purpose of requiring corroboration is to prevent parties from obtaining a divorce by collusion. Anderson v. Anderson, 269 Ark. 751, 600 S.W.2d 438 (Ark. App. 1980).
In Calhoun v. Calhoun, 3 Ark. App. 270, 272, 625 S.W.2d 545 (1981), it was eloquently stated that in a contested divorce:
The rule of this state, long established and uniformly adhered to in our decisions is that while both parties are competent to testify in a divorce action, in order to justify the granting of a divorce the testimony of the complaining spouse must be corroborated by some witness other than the parties to the action. That corroboration may not be supplied by the defending spouse as divorces are not granted upon the uncorroborated testimony of the parties or their admissions of the truth of the matters alleged, [citations omitted].
In Calhoun, citing Jackson v. Bob, 18 Ark. 399 (1857), it was observed that in any ordinary adversary suit a complainant may obtain a decree upon the declarations or admissions of the defendant. Calhoun further quoted from Jackson this principle: “It is because of the interest which the public have in the marriage relation, that suits for divorce, in the respects above stated, are not governed by the rules of evidence applicable in ordinary suits.” Id. at 272.
Act 267 of 1981 provides a spouse may waive in writing the necessity of corroborating the injured party’s grounds even where suits are contested. Ark. Stat. Ann. § 34-1207.1. Regardless of whether a divorce is contested or uncontested, the injured party must always prove his or her ground(s) for divorce as set forth in Arkansas Statutes Annotated § 34-1202 (Supp. 1985). In other words, existing statutory law does not allow a spouse to stipulate to or waive grounds for divorce. Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984).
Inasmuch as the law does not permit the offending spouse to corroborate the grounds of the complaining spouse, it certainly does not follow that the offending spouse may waive corroboration of grounds. Justice Fogleman stated as follows in McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977):
We have already indicated that we feel that the requirement of corroboration is still applicable and appropriate. We have so considered it in Adams in 1972, in Welch in 1973, and in Dunn in 1973. There is nothing that calls upon this court to engage in the judicial activism that would be required for our nullifying that requirement. The fact the legislature has not seen fit to abolish the rule is not sufficient, particularly in view of the fact that there has been legislative amendment of the divorce statutes at least 24 times, one of which was the amendment of the pertinent section, Ark. Stat. Ann. § 34-1207 (Supp. 1975), in 1969, to eliminate the requirement of corroboration on all except one ground for divorce, in uncontested cases. . . .It is best that changes in the divorce law be left to that branch of government which is the repository of all powers of government not vested in the other two branches, and which is most representative of the people, the ultimate sovereign.
Id. at 572.
In the instant case, the chancellor stated that he understood appellant was waiving the requirement of corroboration of grounds and requested that the party drawing up the decree take care of the written waiver. A written waiver was never prepared or signed, nor did appellee incorporate the waiver into the decree as directed by the chancellor. Appellee negligently failed to prove her case by her failure to prepare a waiver for appellant’s signature or to comply with the chancellor’s direction to put the waiver in the decree. Arkansas law requires proof and corroboration of grounds unless there has been an effective waiver of corroboration. The effect of affirming the decree in the case at bar without an effective waiver as required by law would be to grant appellee a divorce without proof of grounds. This would be contrary to the very cornerstone of divorce law in Arkansas.
For over 100 years Arkansas law has required corroboration of grounds in a divorce action. Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973); Dunn v. Dunn, 219 Ark. 724, 244 S.W.2d 133 (1951); Owen v. Owen, 208 Ark. 23,184 S.W.2d 808 (1945); Goodlett v. Goodlett, 206 Ark. 1048, 178 S.W.2d 666 (1944); Davis v. Davis, 163 Ark. 263, 259 S.W.2d 751 (1924); Sisk v. Sisk, 99 Ark. 94, 136 S.W. 987 (1911); Rie v. Rie, 34 Ark. 37 (1879); Jackson v. Bob, 18 Ark. 399 (1857). Corroboration of grounds has been required since 1869, when Arkansas adopted the Kentucky Code. See Ky. Code, Divorce § 458 [codified in Gantt’s Digest, Divorce § 2200 (1874)], Harpole v. Harpole, 10 Ark. App. 298, 664 S.W.2d 480 (1984).
The law regarding the necessity for corroboration has undergone several changes within the last twenty years. In 1969 the legislature carved one exception eliminating the necessity of corroborating grounds in uncontested divorce suits. See Ark. Stat. Ann. § 34-1207.1. Again in 1981, a change was made allowing for written waiver of corroboration in contested divorce actions if signed by the offending spouse. Id. The legislature saw fit to carve these narrow exceptions into divorce law in Arkansas. These modifications reflect its response to divorce actions in our contemporary society. Historically, our courts have been reluctant to interfere with law as it is laid down by the legislative body of our government, and as evidenced through case law, courts have refrained from engaging injudicial activism in divorce law.
The Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark. App. 1980), opinion recognizes the long-standing rule that divorce is a creature of the legislature requiring strict adherence, and proof of grounds and corroboration thereof is jurisdictional:
The law has long been settled that divorce shall not be granted upon the uncorroborated testimony of a party to the suit except in an uncontested case. Ark. Stat. Ann. § 34-1207 (Repl.), eliminates the requirement of corroboration of ground in uncontested cases.
The Arkansas Supreme Court has consistently adhered to the rule announced in Rie v. Rie, 34 Ark. 37 (1879) that a divorce will not be granted unless the grounds are corroborated by evidence other than the testimony of the parties. The rule was modified in 1969 by the enactment of § 34-1207 which eliminates the requirement of corroboration in uncontested divorce cases. It is significant the legislature did not see fit to make the 1969 amendment applicable to the establishment of grounds in contested cases, but specifically limited the application to uncontested cases. As recently as Dunn v. Dunn, 255 Ark. 764, 503 S.W.2d 168 (1973) and McNew v. McNew, 262 Ark. 567, 559 S.W.2d 155 (1977) the court reiterated the requirement of corroboration of grounds for divorce.
Id. at 32.
We find no merit to appellee’s contention that there was substantial compliance with Arkansas Statutes Annotated § 34-1207.1, and our decision to reverse on this point is reaffirmed.
Appellee also contends in her petition for rehearing that appellant is precluded from relief on appeal under the doctrines of invited error and estoppel. Under the invited error doctrine, the appellant may not complain on appeal of an erroneous action of the chancellor if he has induced, consented to or acquiesced in that action. Briscoe v. Shoppers News, Inc., 10 Ark. App. 395, 664 S.W.2d 886 (1984). This doctrine is inapplicable in the instant case because there was no erroneous action by the chancellor. The record reflects the chancellor properly followed the law by directing the party preparing the decree to reduce the waiver to a writing. Therefore, we find no merit to this contention in appellee’s petition.
Appellee further argues appellant is estopped to challenge the validity of the decree because he accepted benefits thereunder. We are not persuaded by this argument, because this case involves a failure to substantially comply with a statute. Arkansas Statutes Annotated § 34-1207.1 is clear and unambiguous: a party seeking a divorce must prove and corroborate grounds unless the other spouse expressly waives corroboration in writing.
In her petition, appellee asserts that in the alternative this court should not have reversed and dismissed this action but remanded the case to the trial court for further disposition. In Ferguson v. Green, 266 Ark. 556, 565, 587 S.W.2d 18 (1979), the supreme court stated that “It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below.” Under these circumstances we do not find it necessary to remand for further proceedings.
The petitions for rehearing are denied.
Mayfield, J., concurs.
Cracraft, Cooper, and Jennings, JJ., dissent.
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James R. Cooper, Judge.
The appellant in this criminal case was charged with arson after the fire which destroyed her home was investigated by insurance representatives, the Pulaski County Sheriffs Department, and the Arkansas State Police. After a jury trial, she was convicted of that charge and sentenced to seven years in the Arkansas Department of Correction. From that conviction, comes this appeal.
For reversal, the appellant contends that the trial court erred in admitting testimony to show that, during a recess at trial, the appellant asked a witness to change his testimony. She also asserts that the trial court erred in allowing testimony concerning scientific tests by a witness who was not present when the tests were performed. We find no error, and we affirm.
With respect to the appellant’s contention concerning the admission of testimony that she attempted to influence a witness to change his testimony, the appellant first argues that, under A.R.E. Rule 403, the trial court abused his discretion in admitting the testimony. We disagree. Evidence of other crimes is admissible under A.R.E. Rule 404(b) if the evidence is independently relevant, and the probative value of the evidence outweighs the danger of unfair prejudice under A.R.E. Rule 403. Smith v. State, 19 Ark. App. 188, 718 S.W.2d 475 (1986). We think that these criteria were met in the case at bar.
The record indicates that the State called John Paul Proffitt as a witness. Proffitt testified that, about one month before the fire, the appellant offered to pay him to set fire to her house, but he refused. He further stated that he visited the appellant at her house on the day of the fire, and that he subsequently accompanied the appellant to her father’s house, which was next door to that of the appellant; the appellant then went outside for a few minutes, leaving Proffitt in her father’s house. The appellant’s father then drove up to his house, and the appellant told Proffitt to go into the back bedroom so that her father would not see him. Proffitt then related that, within minutes of his entering the back bedroom, he heard the appellant exclaim that her house was on fire. He also testified that the appellant later told him that she set fire to her house herself, but that she subsequently accused him of setting the fire. Finally, Proffitt stated that he and the appellant had been in an elevator together during a recess at trial, and that she attempted to influence him to change his testimony, as reflected by the following excerpt from the record:
Q And what was the — What do you say Jane Morris said to you?
A She asked me what I was going to say. And I said, “the truth.” And she said, “Like what”? And I said, “Like, for instance, that I’m going to tell them that me and James was [sic] in the back bedroom when your Daddy pulled up.” And she said, “No. No. Tell them you was [sic] walking down the road.”
Proffitt’s location during the minutes immediately prior to the outbreak of the fire was a relevant consideration, because the jury could infer from Proffitt’s testimony that the appellant had placed Proffitt in the bedroom so that she could return to her house and set the fire. Moreover, if Proffitt had testified that he was walking down the road when the fire started, the appellant’s accusation of Proffitt as the person who started the fire would have been more plausible. Under these circumstances, we think that his testimony concerning the conversation in the elevator possesses independent relevance, for it tends to show the appellant’s knowledge of her own guilt, from which it may be inferred that she was the person who committed the crime. See Poole v. State, 262 Ark. 4, 552 S.W.2d 647 (1977); see also E. Inwinkelried, Uncharged Misconduct Evidence § 3:04 (1984). Nor do we think that the trial court erred in failing to exclude Proffitt’s testimony regarding the conversation under A.R.E. Rule 403. The State was required to prove that the appellant set the fire intentionally, and the disputed testimony has a direct bearing on her knowledge and intent. Moreover, the disputed testimony was not of such character as to arouse undue hostility in the jury. See McCormick on Evidence § 490 at 565 (3d ed. 1984). Under these circumstances, we hold that the trial court did not abuse his discretion in admitting Proffitt’s testimony.
The appellant also argues that the trial court’s admission of Proffitt’s testimony concerning witness tampering was erroneous because her attorney could have rebutted that testimony had he been permitted to testify; thus, she argues, she was deprived of her right to defend herself. We find no merit in this contention. The record indicates that the attorney’s rebuttal testimony would have been that he had been with the appellant at various times during the day that the alleged tampering was said to have occurred. He did not claim that he had been with the appellant at all times while she was in the courthouse; nor did he claim to have been in an elevator with the appellant and Proffitt on the day in question. Moreover, the appellant’s attorney did not request permission to testify, nor did he move to withdraw as the appellant’s attorney, for a mistrial, or request a continuance. Instead, his position before the trial court, which he urges on appeal, was that he was absolutely barred from testifying under the rules pronounced in Aetna Casualty and Surety Co. v. Broadway Arms Corp., 281 Ark. 128, 664 S.W.2d 463 (1984), and Bishop v. Linkway Stores, Inc., 280 Ark. 106, 655 S.W.2d 426 (1983), and that Proffitt’s testimony concerning the appellant’s statements on the elevator should thus be excluded. The cases cited by the appellant, however, do not set up an absolute bar to an attorney’s testimony. In Broadway Arms, an attorney who had a financial interest in a case in the form of a contingent fee arrangement was pernitted to testify on retrial, provided that he first withdrew from the case and completely severed the attorney/client relationship. Broadway Arms, supra. Moreover, the Bishop Court stated that “ [a] n attorney who is to testify in an action should withdraw from the litigation.” Bishop, 280 Ark. at 127, citing Eznor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977). Thus, in order for an attorney to testify in a case in which he has participated, he must first withdraw and sever the attorney-client relationship. If the appellant’s attorney in the case at bar had thought his testimony to be important in his client’s defense, the proper course for him to take would be to have sought to withdraw as counsel. Without deciding whether the appellant’s attorney could properly have testified without withdrawing from this case had he attempted to testify, see Boling v. Gibson, 266 Ark. 310, 584 S.W.2d 14 (1979), we hold that, in the absence of a motion to withdraw on the part of her attorney, the appellant was not deprived of her right to defend herself.
Finally, the appellant contends that the trial court erred in permitting testimony concerning scientific tests by a person who neither performed them nor was actually present when they were performed. She argues that this testimony was inadmissible hearsay which should have been excluded under A.R.E. Rule 803. We do not agree. The testimony that is the subject of this point for reversal was that of Andrew T. Armstrong, a chemist employed by Armstrong Forensic Laboratories, Inc., a firm specializing in the recovery and identification of flammable liquids from fire debris. Mr. Armstrong’s testimony consisted of a statement of the results of various scientific tests, and his opinion that flammable liquids were present in samples of the debris taken from the appellant’s house after the fire. Armstrong stated that, although the scientific tests upon which his opinion was based were performed by others, his conclusions were based upon his own analysis of the data derived from those tests. Under these circumstances, we hold that the trial court did not err in admitting Armstrong’s testimony concerning the test results. It is well-settled that an expert may base his opinion upon facts learned from others, even though those facts are themselves hearsay. Dixon v. Ledbetter, 262 Ark. 758, 561 S.W.2d 294 (1978); A.R.E. Rule 703. Moreover, we have held that, under Rule 703, an expert must be allowed to disclose the facts upon which his opinion is based to the trier of fact; otherwise, the opinion is deprived of its factual underpinning, and the trier of fact is left with little means for evaluating its correctness. Carter v. St. Vincent Infirmary, 15 Ark. App. 169, 690 S.W.2d 741 (1985).
Affirmed.
Corbin, C.J., and Cracraft, J., agree.
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George K. Cracraft, Judge.
Darla M. Harper brings this appeal from an order of the chancery court of Pulaski County granting temporary relief only. She contends that the chancellor erred in not granting a decree of divorce in the form “submitted to him on April 24,1986.” We do not address the issue on its merits because we find the order appealed from to be unappealable.
Appellant brought this action for divorce, child custody, and settlement of all marital rights. On November 6,1985, the parties appeared for a hearing on the merits. At the conclusion of the hearing, the chancellor orally announced that he would grant a divorce to the appellant and generally stated the disposition he would make of the marital property. He also stated that the custody of the minor child would remain with the appellant, and he fixed a definite amount of child support. Nothing further appears of record until April 24,1986, when the court entered its order reciting that the appellant’s attorney had presented a precedent for a decree of divorce which the chancellor declined to sign. In that order, the court recited the announcements made at the November hearing, but no order was entered on those announcements and no divorce was granted. The court further found that subsequent to the November hearing the appellant had disappeared, and ordered that the appellee be temporarily awarded custody of the minor child until it could be determined whether the appellant was dead or alive. The order specifically reserved the issue of divorce and property rights pending determination of the defendant’s status and further orders of the court.
Appellant appeals contending that the court erred in not entering the precedent her counsel submitted at the hearing. No record was made of the proceedings on which the order appealed from was based, and the circumstances surrounding appellant’s disappearance and form of the proffered decree are not made known to us. The announcements made by the court at the conclusion of the trial were not orders of the court but merely directions to counsel of what the precedent should contain. The chancellor retained control of the cause and was free to change those directives. O’Dell v. O’Dell, 247 Ark. 635, 447 S.W.2d 330 (1969).
The only decree before us is the one entered by the court on April 24,1986. It is not an appealable one because it was not a final decree within the meaning of Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure. In order to be final for the purposes of appeal, a decree must in some way determine or discontinue the action and put the chancellor’s directive into immediate execution, ending the litigation or at least a separable portion of it. Morgan v. Morgan, 8 Ark. App. 346, 652 S.W.2d 57 (1983). The order entered here made no more than a temporary award of custody and expressly reserved all other issues for further action by the chancellor. Because we find the order unappealable, we do not address the issue on its merits.
Appeal dismissed.
Corbin, C.J., and Cooper, J., agree.
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James R. Cooper, Judge.
In contemplation of their divorce, the appellee and the appellant, Anice E. Thigpen, entered into an agreement which provided for joint custody of their two minor daughters. Four months later, the appellee filed a motion seeking sole custody of the children, which was granted by the chancellor. For her appeal the appellant argues four points: that the evidence was insufficient to support the chancellor’s finding that the appellant lacked the emotional stability to care for the children; that there was insufficient evidence that the appellant’s sexual orientation would adversely affect the children; that there was insufficient evidence of a change of circumstance to warrant a change in custody; and that the court’s orders denying the appellant custody and restricting visitation because of her homosexuality violated her constitutional rights. We find that there was sufficient evidence presented to the trial court to warrant a change in custody, and therefore, we affirm.
Our standard of review is well settled. On appeal from a chancery court case, this Court considers the evidence de novo, and we will not reverse the chancellor unless it is shown that the lower court’s decision is clearly contrary to a preponderance of the evidence. Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978). The primary consideration in awarding the custody of children is the welfare and best interest of the children involved, and other considerations are secondary. Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984). Custody is not awarded as a reward to, or punishment of, either parent. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, the appellate court defers to the superior position of the chancellor, especially in those cases involving child custody. Anderson v. Anderson, 18 Ark. App. 284, 715 S.W. 2d 218 (1986).
The appellant first argues that the appellee failed to establish by the preponderance of the evidence that the appellant lacked the emotional stability to properly care for their minor children. The appellant contends that any emotional problems she suffered were in the past, and that, because she was able to be a good mother during the marriage, she is capable of continuing to parent the children now. At trial the appellant presented an expert witness, Dr. Winston Wilson, who testified that he had tested and talked with the appellant for five hours, and that he had found her to be emotionally stable.
The appellee testified that the appellant had attempted suicide before they were married, and that at the time he separated from her she was despondent and suicidal. Both of the appellant’s parents testified that they loved their daughter, but that they were primarily concerned that their grandchildren receive the best care possible. The appellant’s father stated that the appellant had recently had emotional outbursts. Her mother testified that the appellant had shown a great deal of instability in the past and that, although the appellant had been a perfect mother in the past, “she has had a sudden turnaround to everything she had always believed in.” The mother admitted that she did not like her daughter’s homosexuality, but that the appellant’s prior history of instability frightened her the most.
We simply cannot second-guess the chancellor in this matter. The chancellor had the opportunity, which we do not have, to view the appellant, the appellee, and the other witnesses who testified to the appellant’s emotional state. Where the testimony is conflicting the issue of credibility is a matter which we must defer to the trial court’s judgment. Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).
The appellant next argues that the appellee failed to establish by a preponderance of the evidence that the appellant’s sexual orientation will adversely affect the best interest of the children. However, as the chancellor pointed out, Arkansas courts have never condoned a parent’s promiscuous conduct or lifestyle when such conduct has been in the presence of the children. Ketron v. Ketron, 15 Ark. App. 325, 692 S.W.2d 261 (1985). In Ketron, the mother was living with a man who was married but separated from his wife. Although the court allowed the mother to retain custody, it ordered her to terminate her living arrangement. In other cases we have approved changes in custody where the custodial parent has been involved in illicit sexual relationships. See Scherm v. Scherm, 12 Ark. App. 207, 671 S.W.2d 224 (1984); Bone v. Bone, 12 Ark. App. 163, 671 S.W.2d 217 (1984).
At trial the appellant testified that she began a relationship with her lesbian lover before the divorce, and she admitted that she currently resided with her lover. She stated that she felt married to her lover and intended to live with her forever. She further stated that she occupied the same bedroom as her lover and would do so while the children were staying with them. Barrett Markland, the appellant’s lover, testified that she loved the appellant and was fond of the children. She testified that she and the appellant had never engaged in any physical sexual contact in the children’s presence, but that she and the appellant would be sharing the same bedroom while the children were with them. They both stated that, on the occasions they had the children, they slept together in their bedroom, and, in one case, on the couch of the friend with whom they were staying. It is clear from their testimony that neither the appellant nor Ms. Mark-land intended to purposely engage in sexual conduct in the presence of the children; it is equally clear that neither expressed a desire to take precautions to shield the children from exposure to their sexual activities.
In light of this testimony, we cannot say that the chancellor erred. Contrary to the appellant’s argument, it has never been necessary to prove that illicit sexual conduct on the part of the custodial parent is detrimental to the children. Arkansas courts have presumed that it is. *See Digby v. Digby, 263 Ark. 813, 567 S.W.2d 290 (1978); Walker v. Walker, 262 Ark. 648, 559 S.W.2d 716 (1978); Harmon v. Harmon, 253 Ark. 428, 486 S.W.2d 522 (1972); Northcutt v. Northcutt, 249 Ark. 228, 458 S.W.2d 746 (1970); Scherm, supra; Bone, supra.
For her third point, the appellant contends that the appellee failed to establish by a preponderance of the evidence that a change of circumstances existed to warrant a change of custody. The appellant stated that she had told her husband of a homosexual relationship she had been involved in prior to their marriage. She further stated that her husband knew she planned to live with Ms. Markland, and in fact helped her to move into Ms. Mark-land’s house in Austin, Texas. The appellant argues that since her husband knew of her lesbianism at the time they entered the agreement regarding joint custody of the children, no change of circumstance has taken place. We disagree.
At the time of the divorce hearing, the agreement was read and made a part of the decree. However, the parties did not apprise the chancellor of the appellant’s homosexuality, her plans regarding her living conditions, or her past emotional problems. An original decree is a final adjudication; however, custody can be changed if there is proof of material facts which were unknown to the court at the time. Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1955); Phelps v. Phelps, 209 Ark. 44, 189 S.W.2d 617 (1945); Carter v. Carter, 19 Ark. App. 242, 719 S.W.2d 704 (1986); Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 111 (1986). Clearly, the facts mentioned above, unknown to the chancellor, were sufficient to warrant a change in custody.
For her final point, the appellant argues that the trial court’s order denying custody and restricting visitation on the ground that the appellant is a homosexual violates the appellant’s rights under the federal constitution. We agree with the appellant’s assertions that the rights attached to parenthood are among the “basic civil rights,” Stanley v. Illinois, 405 U.S. 645 (1972), and that before the State can interfere with such rights the State must comply with the requisites of due process. Stanley, supra; Goldberg v. Kelly, 397 U.S. 254 (1970). However, we disagree that the appellant’s rights were violated, or that due process requires a showing that there be a nexus between the parent’s activity and harm to the child. Furthermore, we do not find that the chancellor denied the appellant custody solely because she is a homosexual. The chancellor pointed out four factors he considered; 1) that with the appellee, the children would be residing in the same neighborhood in which they had always resided (the appellant’s home was in Austin, Texas); 2) that the appellant’s educational goals would substantially interfere with the time she has for parenting (the appellant is a graduate student at the University of Texas and is pursuing a Ph.D. in biochemistry); 3) that homosexuality is generally socially unacceptable, and the children could be exposed to ridicule and teasing by other children; and, 4) that is was contrary to the court’s sense of morality to expose the children to a homosexual lifestyle, and that it was no more appropriate for a custodial parent to cohabit with a lover of the same sex than with a nonspousal lover of the opposite sex. The chancellor also indicated that he was concerned about the appellant’s emotional stability. Contrary to the appellant’s argument, it is clear to us that while the appellant’s homosexuality was a factor the chancellor considered, it was not the only consideration. When all of the above factors are considered together, we cannot say that the chancellor’s finding that the appellee is the proper person to have sole custody of the children is clearly erroneous or against the preponderance of the evidence.
Affirmed.
Jennings, J., agrees.
Cracraft, J., concurs.
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Melvin Mayfield, Judge.
This is an appeal from a decision of the Workers’ Compensation Commission holding appellant’s claim for permanent partial disability benefits barred by the two-year statute of limitations contained in Ark. Stat. Ann. § 81-1318(b) (Repl. 1976).
Appellant fell at work on March 26,1983, injuring her right knee. However, it was not until her knee collapsed on April 16, 1983, that appellant realized the extent of her injury. Her knee cap was removed by Dr. C. Leon Hay on April 18, 1983, and she was paid full benefits until released to return to work on October 11,1983. She was not given a permanent partial disability rating at that time and did not again consult her doctor about her knee until May 7, 1985.
She testified, however, that although she went back to work at the same job, she continued to have pain in her knee and it gradually got worse. Then, on April 9, 1985, appellant retained Robert F. Thompson, an attorney, who wrote a letter to the Workers’ Compensation Commission the same day. After identifying the appellant, her employer, and the WCC claim number, the body of the letter stated in full:
We have been employed to assist Katherine R. Cook in connection with unpaid benefits in the above matter. If you would be kind enough to send me a copy of your file so that we may evaluate the matter, it would be greatly appreciated. If there is any charge for the copying in this connection, please send a statement with the material.
The Commission responded on April 11,1985, with a letter to Mr. Thompson acknowledging his letter and stating that a notation would be made in the file that he was serving as attorney of record for appellant. On June 25, 1985, Mr. Thompson formally requested a hearing.
It was stipulated at the hearing that appellant had sustained a compensable injury, that the statute of limitations began to run on April 19,1983, and that appellant had sustained a twenty per cent (20%) anatomical disability to the right lower extremity. The only issue was whether Thompson’s April 9, 1985, letter constituted the filing of a claim for compensation. The law judge concentrated on the words “employed” and “unpaid benefits” contained in the letter, and on the Commission’s response, and concluded that the letter effectively gave notice that appellant was making a claim for further benefits and, therefore, the claim was not barred by the statute of limitations. The full Commission reversed, holding that counsel’s letter was not specific enough to be considered a claim for benefits and, therefore, the claim was barred on April 19, 1985.
On appeal to this court, the appellant cites Long-Bell Lumber Co. v. Mitchell, 206 Ark. 854, 177 S.W.2d 920(1944),in support of her contention that the letter of April 9, 1985, constituted a claim. In that case, the Arkansas Supreme Court said that the Commission was correct in treating certain correspondence between the claimant and the Commission as tantamount to the filing of a claim. In so holding, the court stated:
In our Workmen’s Compensation Law, formalities are frowned on. A reading of §§ 18, 19 and 27 thereof is convincing of this statement. The spirit of the law, inter alia, is to afford a speedy and simple form of relief to, or settlement of the claims of, those injured. (71 C.J. 247.) The act is to be liberally construed to effectuate its purposes; , and the correspondence was notice of claim.
206 Ark. at 857.
Appellant also cites Larson’s treatise on worker’s compensation law, which both parties agree states:
At the minimum, the informal substitute for a claim should identify the claimant, indicate that a compensable injury has occurred, and convey the idea that compensation is expected.
See 3 Larson, Workmen’s Compensation Law § 77A.41 (1983). The appellant argues that.her attorney’s letter met the criteria set out by Larson for stating a claim: it named the employee and the employer, referred to the open compensation file by number, and stated that the attorney had been employed to assist the appellant in seeking additional benefits.
The Commission, however, relied upon Little v. Smith, 223 Ark. 601, 267 S.W.2d 511 (1954), and quoted the following language of the court in that case taken from an old volume of Corpus Juris:
The claim must nevertheless be direct and unequivocal, and show that a claim for compensation is being made; be understandable, where filed with the commission it must call for some immediate action by the commission. It must apprise the employer that the employee has sustained injuries of such character as to entitle him to compensation and that the benefits of the act are being claimed.
223 Ark. at 606.
We do not believe that the Little case is applicable in the instant case. In the first place, the claim in Little was made on behalf of the surviving parents of the deceased employee after the one-year statute of limitations had expired. The Arkansas Supreme Court was considering correspondence between the em ployer, the Commission, and the Chambers Claims Service. This correspondence had been held by the circuit court to constitute notice of a claim, but the appellate court noted that the correspondence only related to investigations following the employer’s report to the Commission of the death of an employee and held that the correspondence could not constitute a claim for compensation since none of it came from the deceased’s relatives or any representative of them. In the second place, the type of information referred to in the Little case is information that might be needed in an original claim but, in the instant case, the letter written by appellant’s attorney on April 9, 1985, was not an original claim but a claim for additional benefits.
We have held that the purpose of the statute of limitations in workers’ compensation cases is to permit prompt investigation and treatment of injuries. St. John v. Arkansas Lime Co., 8 Ark. App. 278, 651 S.W.2d 104 (1983). It is clear from the record in this case that the employer was given immediate notice of the injury and fully investigated the claim at the time it occurred. Further, the evidence discloses that the claim was accepted as compensable and the employee was paid full benefits during her healing period. She then went back to work for the appellee, her work activities since then have been easily observable, and the appellee has stipulated that appellant is entitled to receive a 20% permanent partial disability award for the scheduled injury to her leg unless her claim is barred by limitations. The appellee, however, argues that the letter by appellant’s counsel was not specific enough to constitute a claim. Under the facts of this case, we simply do not agree.
Our decision is consistent with our holding in the recent case of Arkansas Power and Light Co. v. Giles, 20 Ark. App. 154,725 S.W.2d 583 (1987), where we held that the statute of limitations was tolled by a claim for additional benefits. In that case, we relied upon Sisney v. Leisure Lodges, Inc., 17 Ark. App. 96, 704 S.W.2d 173 (1986), where we held a claimant’s timely filing for rehabilitation benefits and additional permanent disability payments also tolled the statute for her later-requested medical benefits. To hold otherwise, we said, would “invoke a measure of precision uncalled for by the broad language of the statute and unsupported by the case law of this state.”
We hold, in the instant case, that because this was not an original claim for compensation and the employer was fully aware of the injury and its compensability, counsel’s letter notifying the Commission that he had been employed to assist the claimant in connection with unpaid benefits, and listing the claimant’s name, the employer’s name, and the WCC file number was sufficient to constitute a claim for additional benefits. Since that letter was filed within the two-year period allowed by Ark. Stat. Ann. § 81-1318(b) (Repl. 1976) in which to file claims for additional compensation, we reverse the Commission’s decision that the claim was barred by limitations and we remand this matter for determination of the merits of appellant’s claim.
Reversed and remanded.
Cooper and Coulson, JJ., agree
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Per Curiam.
The appellants brought this action against Shelter Mutual Insurance Company and its agent, James Howell, contending that both parties were liable to them for negligence in the issuance of an insurance policy ordered by the appellants. The court entered an order granting summary judgment in favor of the appellee Shelter Mutual Insurance Company but did not direct the entry of final judgment upon an express determination that there was no just reason for delay. The claim against Howell was left pending. Appellants appeal contending that the court should not have granted Shelter Mutual Insurance Company’s motion for summary judgment as there were material facts to be determined. Appellees filed this motion to dismiss the appeal. We grant that motion.
Rule 54(b) of the Arkansas Rules of Civil Procedure provides that when multiple parties are involved, or when more than one claim is presented, the trial court may direct the entry of a final judgment as to one or more but fewer than all of the parties or claims only upon an express determination that there is no just reason for delay and upon express direction for the entry of judgment. Here, the order appealed from neither dismissed all of the parties nor directed the entry of final judgment. We dismiss the appeal because the order appealed from is not a final one. City of Marianna v. Arkansas Municipal League, 289 Ark. 473, 712 S.W.2d 305 (1986); 3-W Lumber Company v. Housing Authority, 287 Ark. 70, 696 S.W.2d 725 (1985); ARCP Rule 54(b).
The appellees’ motion to dismiss the appeal was not filed in this court until after the appellant had obtained and lodged a transcript of the record consisting of 112 pages and filed a brief and abstract containing over 50 pages. This practice in many cases occasions delay in the trial court’s disposition of remaining issues, needless expense and effort in transcribing records, and the writing of useless briefs on the merits. A better practice would be to file with this court a partial transcript, containing a copy of the order, and a motion to dismiss as soon as the jurisdictional defect becomes apparent. We, today, issue a caveat to counsel that in the future, where this practice is not followed, sanctions may be imposed, unless good cause for delay in presenting the motion can be shown.
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Donald L. Corbin, Chief Judge.
Appellants, Larry R. Williams and his wife, Karen R. Williams, appeal a Howard County jury verdict of $50,000 for the condemnation in fee of twenty acres of land owned by appellants and taken by appellee, Arkansas State Highway Commission. We reverse and remand.
Appellee condemned twenty acres of a 222-acre tract owned by appellants for the relocation of Arkansas State Highways No. 4 and No. 27 around the southeast area of Nashville, Arkansas, commonly known as the “Nashville Bypass.” Before the taking, the 222 acres fronted Arkansas State Highway 4 on the north and Arkansas State Highway 27 on the west. The area acquired by appellee ran north and south almost in the middle of the 222-acre tract. After the taking, the property retained its highway frontage, and gained frontage on the new bypass with four access points on both the east and west sides of the facility. This was in keeping with the specifications contained in appellee’s Declaration of Taking and right-of-way plans filed in this action. Witnesses for the landowners testified to damages ranging from $403,000 to $423,000, whereas appellee’s testimony alleged damages in the amount of $43,500.
The only issue raised by appellants is whether or not the trial court erred in refusing to instruct the jury as follows:
DEFENDANTS’ [APPELLANTS’] INSTRUCTION NO. A
You are instructed that the Arkansas State Highway Commission is taking the Williams’ property for a controlled-access facility as defined by Arkansas law. A controlled-access facility as defined in Arkansas Statutes Annotated Section 76-2202 by law is “. . . a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right of easement, or only a controlled right of easement of access, light, air or view, by reason of the fact that their property abuts upon such controlled-access facility or for any other reason.” As a matter of law, the Williams have no legal right of access to the controlled access facility from their abutting land other than by permission of the Arkansas Highway Department. The Arkansas Highway Department can permit access to the highway only at certain locations designated in the plans filed in this case with the declaration of taking. The Arkansas Highway Department can revoke permission any time in the future as conditions may require. Arkansas Statutes Annotated Sections 76-2202, 2203, 2204.
Appellants’ assignment of error is founded upon their argument that the jury was entitled to an instruction defining a controlled-access facility. They state the jury was entitled to know their property was condemned as a controlled-access facility and that appellee took all rights of ingress and egress with the exception of certain access points. Appellants argue the above proffered instruction correctly defines a controlled-access facility and sets forth the governing law. They state that right of access is a property right which a landowner cannot be deprived of without just compensation.
On the other hand, appellee contends that appellants have a legal right of access from their abutting lands to the bypass, and that right is not based upon the whim of the Arkansas State Highway Commission. Appellants’ right of access rests upon appellee’s official plans filed with the court. Appellee argues appellants’ instruction was misleading in that it informed the jury appellee could revoke permission of the access at any time. The proffered instruction did not inform the jury that appellants would have a new cause of action if appellee revoked its permission. Appellee points out in its brief that there was never a controversy at trial as to the access points contained in its plan nor was there a contention on appellants’ part that the facility was not constructed in accordance with the plan.
Arkansas Statutes Annotated § 76-2202 (Repl. 1981) defines a controlled-access facility as follows:
A controlled-access facility is defined as a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement, or only a controlled right of easement of access, light, air or view, by reason of the fact that their property abuts upon such controlled-access facility or for any other reason. Such highways or streets may be freeways open to use by all customary forms of street and highway traffic; or they may be parkways for [from] which trucks, buses, and other commercial vehicles shall be excluded, [emphasis added].
The record in the case at bar as abstracted reflects that the jury was not instructed by the trial court on the definition of a controlled-access facility. We believe the above emphasized language of § 76-2202 refers to and includes a partially controlled-access facility.
Both parties to this litigation cite us to the case of Arkansas State Highway Commission v. Arkansas Real Estate Co., Inc., 243 Ark. 738, 421 S.W.2d 883 (1967), wherein the Arkansas State Highway Commission condemned a right-of-way in fee simple for a controlled-access highway across the landowners’ property. The Highway Commission proffered an instruction defining a controlled-access highway in the language of the statute and stating that the highway had been constructed in accordance with certain plans on file with the highway department. The instruction further stated that if the Commission should in the future change the highway in such a way as to damage the landowners, the landowners would have a new cause of action. The landowners contended that this instruction was not perfectly drawn insofar as the record did not justify the court in telling the jury unequivocally that the controlled-access facility had been constructed in accordance with the plans. The supreme court reversed, holding that the substance of the proffered instruction should have been given. The court pointed out that in view of the necessity of a new trial, the Commission, upon proper proof, would be entitled to a correctly worded charge on the point.
This court stated in Dodson Creek, Inc. v. Fred Walton Realty Co., 2 Ark. App. 128, 620 S.W.2d 947 (1981), that a litigant is entitled to have his theory of the case submitted to the jury and that it is the duty of each litigant to prepare and request a correct instruction embodying it. We further stated that a trial court is not required to give an instruction which needs explanation, modification or qualification.
We believe appellants’ proffered instruction should have been given in the instant case because it was a correct statement of the law as embodied in case law and statutory authority. It was a clear expression of appellants’ theory of the case, and it needed no explanation, modification or qualification. Under the facts of the case at bar, there was no controversy as to whether the facility had been built according to the Highway Commission’s plans and specifications; therefore, it would seem that the Highway Commission, upon request, and in addition to the instruction proffered by appellants, would have been entitled to express their theory of the case utilizing language found in Arkansas State Highway Commission v. Arkansas Real Estate Co., Inc., supra, instructing the jury that if the Commission should in the future change the highway in such a way as to damage the landowners, the landowners would have a new cause of action.
Accordingly, we reverse and remand for a new trial.
Mayfield, J., concurs.
Jennings and Cracraft, JJ., dissent.
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James R. Cooper, Judge.
The appellee, Deborah Kay Kesterson, filed a complaint for divorce against the appellant alleging general indignities as grounds. At a hearing on the complaint, the grounds were uncorroborated and the chancellor entered a decree granting the appellee a divorce from bed and board. Several months later, the appellant requested an ex parte emergency hearing, alleging that the appellee was preparing to leave the state and requesting that the chancellor prohibit the appellee from removing certain property from the state. After a hearing, the chancellor entered an order dividing the personal marital property. On appeal, the appellant argues four points for reversal: that the chancellor erred in granting the appellee a divorce from bed and board, because it was clearly against the preponderance of the evidence; that the entry of a decree of divorce from bed and board was contrary to the law; that the division of marital property and award of spousal and child support was contrary to the law and principles of equity; and that the court’s modification of its decree was contrary to law and equity. We find merit to two of the appellant’s arguments, and we therefore affirm the chancellor’s award of support, but we reverse and remand as to the divorce and property division.
We review chancery cases de novo on appeal and the chancellor’s findings of fact will not be reversed unless they are clearly against the preponderance of the evidence. Pennybaker v. Pennybaker, 14 Ark. App. 251, 687 S.W.2d 524 (1985). We review the testimony in the light most favorable to the appellee, and indulge all reasonable inferences in favor of the decree, Gooch v. Gooch, 10 Ark. App. 432, 664 S.W.2d 900 (1984), and we give due regard to the chancellor’s superior opportunity to assess the credibility of the witnesses. Cox v. Cox, 17 Ark. App. 93, 704 S.W.2d 171 (1986).
The appellant’s first two arguments regarding the decree of divorce from bed and board are closely related and we will discuss them simultaneously. We agree that the chancellor erred in entering a decree of divorce from bed and board because the grounds were not corroborated; however, we find that the chancellor could have entered an order of separate maintenance.
Divorce from bed and board is a statutory remedy and is based on the same grounds as those specified for an absolute divorce. Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). As in a proceeding for absolute divorce, grounds for divorce from bed and board must be corroborated. Ark. Stat. Ann. § 34-1202 (Supp. 1985). In the present case it is uncontroverted that the appellee’s grounds were not corroborated.
However, grounds and corroboration of grounds are unnecessary in an action for separate maintenance. All that must be established are a separation and an absence of fault. Lytle, supra; Hill v. Rowles, Chancellor, 223 Ark. 115, 264 S.W.2d 638 (1954). There is no statutory authority for an action for separate maintenance; instead it is maintained under the broad power of equity. Wood v. Wood, 54 Ark. 172, 15 S.W. 459 (1891).
Although the appellant does not directly argue that the chancellor could not enter a decree of separate maintenance, he does argue that he is without fault because the appellee asked him to leave the marital home. However, we find that there is sufficient evidence to support a finding of lack of fault on the appellee’s part.
At the hearing, the appellee testified that she and the appellant had been having problems for several years and that the situation had become intolerable. She testified that it had been four or five years since the appellant had sexual relations with her, and that, at one point, he had told her that she no longer “excited” him and that if she was interested in sex she should find a lover. She stated further that the appellant was no longer affectionate with her or with their child, and that he told her that he didn’t want them to touch him. When the appellee went to Iowa to assist her mother who had just had surgery, the appellant told her that it was not necessary for her to return. Based on this testimony, the chancellor found that the appellee was entitled to a decree of “legal separation or a divorce from bed and board.” Based on our de novo review of the record, we reverse the chancellor’s award of divorce from bed and board, and remand for the entry of a decree of separate maintenance.
The appellant’s third argument concerns the spousal and child support awarded to the appellee. The appellee was granted custody of the parties’ minor daughter and was awarded $450.00 per month as support for herself and her child. At the conclusion of six months, the support was to be reduced to $225.00 per month as child support. The appellant argues that this was error because he was without fault and because the appellee was as capable of earning money as he was. We affirm the chancellor’s award.
An independent cause of action will lie for alimony in a court of equity, Ark. Stat. Ann. § 34-1201 (Repl. 1962), and there are no meaningful distinctions between the action for alimony and today’s action for separate maintenance. See Spencer v. Spencer, 275 Ark. 112, 115, 627 S.W.2d 550, 551 (1982) (Dudley, J., concurring); Rosenbaum v. Rosenbaum, 206 Ark. 865, 177 S.W.2d 926 (1944). The purpose is to provide a dependent spouse with support.
The appellant emphasizes that the abandoned wife must be without fault. However, the only evidence of the appellee’s fault we can find in the record is the appellant’s testimony the appellee frequently picked fights with him. The appellee testified that she intended to seek employment in Iowa as soon as she knew the results of the proceedings, that she had no education after high school, that the only work skill she possessed was working in the gas station owned by the appellant, and that she did not know of any employment she could do in the area. We have already discussed the allegations of fault on the part of the appellant, and, on these facts, we do not find that it was against the preponderance of the evidence for the chancellor to award the appellee support for six months.
As for child support, a parent has a legal duty to support his minor children. Brown v. Brown, 233 Ark. 422, 345 S.W.2d 27 (1961). Since child custody actions are derivative of divorce or separate maintenance, Robins v. Arkansas Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981), we find no error in the chancellor’s granting child support to the custodial parent, the appellee.
Finally, the appellant questions the chancellor’s order dividing the marital property. At the hearing, the appellee testified that she wanted to return to Iowa to live. She stated that Iowa was her original home, and that all of her family lived there. The chancellor refused to grant the appellant’s request that the appellee be prohibited from leaving the state. As the appellee was preparing to leave for Iowa, the appellant filed a request for emergency ex parte relief, alleging that the appellee was taking marital property out of the state. At the conclusion of a hearing, the chancellor ordered the parties to divide the property, which they did. From the bench, the chancellor clearly stated that he was awarding only temporary possession of the items; however, in the final order, the “ownership” of the property was determined.
The appellant correctly argues that the chancellor cannot enter an order absolutely dividing the marital property in an order granting legal separation. Spencer v. Spencer, supra. However, possession of the property may be awarded. See Coleman v. Coleman, 7 Ark. App. 280, 648 S.W.2d 75 (1983). We therefore remand this matter to the chancellor for the entry of whatever order the court deems appropriate to divide possession of the marital property.
Affirmed in part.
Reversed and remanded in part.
Corbin, C.J., and Mayfield, J., agree.
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Melvin Mayfield, Judge.
This is an appeal from the registration of a default judgment rendered in Texas. The appellant is an Arkansas corporation with its principal place of business in Springdale, Arkansas. The appellee is a Texas corporation. Suit was filed in Texas and service was obtained on the appellant under the Texas “long-arm” statute. Appellant’s first contention is that it did not have sufficient contacts with Texas to give that state in personam jurisdiction over it. Its second contention is that there was a failure to comply with the Texas procedural requirements for service and, therefore, the Texas court did not have personal jurisdiction to enter judgment against appellant.
We need not discuss either of these contentions because we agree with the appellee’s contention on cross-appeal. The appel-lee claims the Texas judgment became a final Arkansas judgment since the appellant did not file an answer within the time allowed by the statutes providing for the registration of foreign judgments in Arkansas. We agree and affirm the judgment entered by the trial court, although for a different reason than that used by the trial judge.
Ark. Stat. Ann. §§ 29-801 through 29-818 (Repl. 1979) are concerned with the enforcement of foreign judgments. These sections constitute the Uniform Enforcement of Foreign Judgments Act, and section 29-807 provides:
If the judgment debtor fails to plead within twenty [20] days after jurisdiction over his person has been obtained, or if the court after hearing has refused to set the registration aside, the registered judgment shall become a final personal judgment of the court in which it is registered.
As the appellee points out, these statutes were discussed by Dr. Robert A. Leflar in a law review article in which it was said:
If after registration personal service is secured on the judgment debtor in accordance with the law of the state of registration. . . . If he does not answer within this time, or if on hearing based on the issues raised by his answer the decision goes against him, the registered judgment becomes a final personal judgment of the court in which it is registered.
Leflar, The New Uniform Foreign Judgments Act, 3 Ark. L. Rev. 402, 415 (1949).
Since the appellant’s answer to the petition for registration of the Texas judgment was filed five days late, we hold that the judgment sought to be registered became a final judgment under the plain language of Ark. Stat. Ann. § 29-807. The trial court considered the issues raised in the appellant’s answer, even though it was filed late, because the judge thought he should determine whether Texas had jurisdiction to render the judgment. The appellee told the judge that it took the position that the judgment had become final when the time to file an answer to the petition for registration had expired and that it did not, by participating in the hearing on the jurisdiction issue, want to waive any right to assert that position. The trial judge stated he understood that position.
The appellant argues that the trial court’s action allowed the answer to be filed late, that this was discretionary, and that no abuse of discretion was shown. We do not agree. Not only did the appellant fail to show any excuse for filing its answer late, the judge did not indicate there was any excuse for the late filing. The judge simply thought he had to consider the basis of the granting of the foreign judgment since it was alleged that Texas did not have jurisdiction to grant it.
We think the trial court was in error in reaching this conclusion. It is true that a judgment in a foreign court which lacks jurisdiction will not be recognized in this state any more than a judgment in our own courts which lack jurisdiction will be recognized. See Pulliam v. McGarity, 268 Ark. 1138, 599 S.W.2d 419 (1980). However, this does not mean one can ignore the summons issued on a petition to register a foreign judgment and then, at any time he desires, raise the issue that the foreign court lacked jurisdiction to render the judgment. In Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W.2d 549 (1974), the court said:
The salient purpose of the Uniform Act is to provide for a summary judgment procedure in which a party in whose favor a judgment has been rendered may enforce that judgment promptly in any jurisdiction where the judgment debtor can be found, thereby enabling the judgment creditor to obtain relief in an expeditious manner.
256 Ark. at 456.
It would work against this “salient purpose” to allow without good cause the late filing of answers to petitions to register foreign judgments. In Dolin v. Dolin, 9 Ark. App. 329, 659 S.W.2d 954 (1983), we said the court is not required to conduct a hearing at which the burden is upon the party filing the petition for registration to establish entitlement to registration where there is no evidence or testimony to refute the prima facie case made by the authenticated documents filed with the verified petition to register the judgment. We said the appellant was afforded the opportunity to offer evidence to support his allegation of lack of jurisdiction and, having offered none, the judgment which was regular on its face and duly authenticated was entitled to registration.
In Meisch v. Brady, 270 Ark. 652, 606 S.W.2d 112 (1980), the court said a default judgment was “just as binding and forceful as a judgment entered after a trial on the merits of the case.” 270 Ark. at 658. The court reversed the trial court’s setting aside a default judgment, and said the record did not establish that the requirements of ARCP Rule 55, which allows a default judgment to be set aside “upon a showing of excusable neglect, unavoidable casualty, or other just cause,” had been met. These requirements were not met in the instant case, either.
For the reasons indicated above, we affirm the trial court’s judgment granting the appellee’s petition to .register the Texas judgment.
Corbin, C.J., and Coulson, J., agree.
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Beth Gladden Coulson, Judge.
This appeal is from a decision of the Workers’ Compensation Commission reversing the Administrative Law Judge’s award of dependency benefits to George McCoy and James Junior McCoy III. The appellant, Alma Jean McCoy, acting on behalf of the two minor children, argues that there is no substantial evidence to support the Commission’s finding that the children were not entitled to benefits as dependents of the deceased, James Rogers.
We find substantial evidence to support the Commission’s finding that George McCoy and James Junior McCoy III were not the acknowledged illegitimate children of the deceased, James Rogers, but rather, were the legitimate children of Alma Jean McCoy and James McCoy, Jr. However, the appellant makes the additional argument that the children are entitled to dependency benefits as “foster children” of the deceased. While it appears that this argument was not presented to the Administrative Law Judge, and there is no discussion of the issue in the Commission’s order, the appellee has conceded that the Commission heard argument by the parties on this point. Because the Commission has failed to set out its findings of fact in this regard, the case must be remanded.
James Rogers died on December 11, 1984, after sustaining an accidental injury which arose out of and in the course of his employment. Alma Jean McCoy testified that she and James Rogers cohabited from early 1970 until the time of the accident, that they were never married, but that she gave birth to four boys during those fourteen years. The appellant also candidly admitted that she was married to James McCoy, Jr., at the time she began cohabiting with James Rogers and that James McCoy, Jr., did not obtain a divorce from the appellant until April of 1975. This appeal concerns only two of the four boys born to Alma Jean McCoy. George McCoy was born on November 18, 1970, and James Junior McCoy III was born on March 29, 1975.
Alma Jean McCoy testified that James Rogers was the father of the boys, that James Rogers had acknowledged that the children were his own, and that James McCoy, Jr., had obtained the divorce because of the relationship between Alma Jean McCoy and James Rogers. Friends and co-workers of the deceased testified that James Rogers had acknowledged that he had four sons and that Alma Jean McCoy was the mother of those boys. The appellant further testified that while the deceased would sometimes help with the rent, groceries, and clothing for the children, he did not furnish too much — “like on a weekend ... he would give the kids a little spending money and stuff like that.”
The birth certificates for George McCoy and James Junior McCoy III show the father to be James McCoy, Jr. The appellant conceded that she signed those certificates and that she was the one who had supplied the information recorded on those birth certificates. The Commission, in reliance upon cases from the supreme court and from this court, found that George McCoy and James Junior McCoy III were the legitimate children of Alma Jean McCoy and James McCoy, Jr., and that they were not .entitled to benefits as the dependents of the deceased, James Rogers.
On appeal, this court will affirm the Commission’s decision if there is any substantial evidence to support the ruling. We review and interpret the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. We give the testimony its strongest probative force in favor of the action of the Commission. To reverse, we must find that fair-minded persons with the same facts before them could not have reached the conclusion arrived at by the Commission. Franklin Collier Farms v. Chappie, 18 Ark. App. 200, 712 S.W.2d 334 (1986).The issue on appeal is not whether this court would have reached the same results as the Commission on this record or whether the testimony would have supported a finding contrary to the one made; the question is whether the evidence supports the findings which the Commission made. Bankston v. Prime West Corp., 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981).
The statutory provision which sets forth the order of preference for the payment of compensation for the death of an employee to beneficiaries such as widows and children is Ark. Stat. Ann. § 81 -1315 (Supp. 1985). Compensation can be paid to a “child” provided that the particular child was wholly and actually dependent upon the deceased employee and the individual comes within the definition of “child” set forth in Ark. Stat. Ann. § 81-1302(j) (Repl. 1976), which provides:
“Child” means a natural child, a posthumous child, a child legally adopted prior to injury of the employee, a stepchild, an acknowledged illegitimate child of the deceased or spouse of the deceased, and a foster child. “Child” shall not include married children, unless wholly dependent upon the deceased.
It is well established that one of the strongest presumptions known to the law is that a child born to a legally married woman is the legitimate child of the husband. Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976). The presumption is so strong that it can only be rebutted by the strongest type of evidence — such as conclusive evidence of the husband’s impotency, or nonaccess between the parties at the time of conception. 260 Ark. at 55.
The appellant’s testimony that James Rogers was the father of the two boys bastardizes children presumed legitimate by the foregoing presumption; as such, the testimony is incompetent. Bankston v. Prime West Corp., 271 Ark. 727, 610 S.W.2d 586 (Ark. App. 1981). Also, the testimony of the friends and coworkers is legally insufficient to overcome the presumption. Estate of Wright v. Vales, 1 Ark. App. 175, 613 S.W.2d 850 (1981). Excluding the appellant’s testimony and recognizing that the testimony of the friends and co-workers is insufficient, we are left with the unambiguous information recorded on the birth certificates and with the fact that the children were born to Alma Jean McCoy prior to her divorce from James McCoy, Jr. In light of these facts, the Commission correctly determined that George McCoy and James Junior McCoy III were not the acknowledged illegitimate children of the deceased, James Rogers, but rather, were the legitimate children of Alma Jean McCoy and James McCoy, Jr.
In her brief before this court, the appellant argues that if we find that the two boys were not “technically” the acknowledged illegitimate children of the deceased, James Rogers, there is ample evidence that they were “foster children” in that James Rogers was their substitute parent. Ellis v. Ellis, 251 Ark. 431, 472 S.W.2d 703 (1971). The appellee contends that the issue is not properly before this court because it was not presented to the Administrative Law Judge and was not discussed in the Commission’s order. It is conceded, however, that the Commission heard argument by the parties on this point.
Commission Rule 25(b), which relates to the scope of review on appeal to the Commission, provides as follows:
All legal and factual issues should be developed at the hearing before the Administrative Law Judge or single Commissioner. The Commission may refuse to consider issues not raised below.
In American Transportation Co. v. Payne, 10 Ark. App. 56, 661 S.W.2d 418 (1983), this court noted that Rule 25 does not preclude the Commission from reviewing issues not appealed from or not raised at the administrative law judge level if it so chooses. 10 Ark. App. at 61. The Commission reviews cases appealed from the administrative law judge level de novo, and the duty of the Commission is not to determine whether there was substantial evidence to support the Administrative Law Judge’s decision; rather, it must make its own findings in accordance with a preponderance of the evidence. Hence, while the Commission has the statutory authority to require that parties specify in their notice of appeal to the Commission all issues to be presented, this does not negate the Commission’s authority to hear argument on other issues. In the present matter, the Commission exercised its discretion to hear argument on the foster child issue but failed to set out its findings on that issue.
We have previously emphasized that the review function of this court becomes meaningless if in its order the Commission fails to set out its findings of fact and the evidence in support of those findings. Wright v. American Transportation, 18 Ark. App. 18, 709 S.W.2d 107 (1986). We do not deem a full recitation of the evidence to be required, so long as the Commission’s findings include a statement of those facts the Commission finds to be established by the evidence in sufficient detail that the truth or falsity of each material allegation may be demonstrated from the findings. The Commission’s statement must contain the specific facts relevant to the “contested issue or issues” so that this court may determine whether the Commission has resolved those issues in conformity to the law. Wright, supra.
Because the Commission elected to hear argument by the parties on the foster child issue but failed to set out its findings in that regard, we are not in a position to make a meaningful review on this point. Therefore, we remand and leave to the Commission’s discretion (1) whether to decide this issue on the record as has been made or on a record that includes additional evidence and (2) whether to accept new briefs or hear new arguments. Within a reasonable period of time, the Commission shall certify its findings on this issue to this court.
Remanded.
Although the style of this case identifies one of the minor children as James McCoy, Jr., he is correctly named on his birth certificate as James Junior McCoy III and will be referred to as such hereafter.
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John E. Jennings, Judge.
Wentford Lamb was convicted of DWI in Jacksonville Municipal Court. He appealed to circuit court and was again convicted. On appeal he argues that he was illegally arrested. We affirm.
Lamb was attempting to enter the Little Rock Air Force Base when he was stopped by Roger Allman, a security guard. Allman testified that Lamb swerved to miss some traffic cones and stopped. When Allman approached him he noticed that Lamb smelled of alcohol and his speech was slurred. Allman asked for and received permission to move Lamb’s car. He then took Lamb to the guard shack, told him to stay there, and called the Jacksonville Police Department. He told Lamb that he was being detained for suspected DWI.
Sherry Jordan, a Jacksonville police officer, responded to the call. When she got there she advised Lamb of his rights and gave him a field sobriety test, which he did not pass. She then arrested Lamb for DWI and took him to the Jacksonville Police Department. He registered .23 on the breathalyzer test.
Lamb’s argument on appeal is that Allman could not have validly arrested him because he was not a certified law enforcement officer under the provisions of Ark. Stat. Ann. §§ 42-1001 — 42-1009 (Repl. 1977 and Supp. 1985), and that Jordan could no.t have validly arrested him as she had no jurisdiction on federal prop'er-ty. , • ''
Assuming that appellant is correct in his argument that he was illegally arrested, an illegal- a.rrest is neither a bar to prosecution nor a defense to a valid conviction. United States v. Crews, 445 U. S. 463 (1980); Webster v. State, 284 Ark. 206, 680 S.W.2d 906 (1984); Van Daley v. State, 20 Ark. App. 127, 725 S.W.2d 574 (1987). It may constitute a basis for a motion to suppress, but that issue is not before us. Although this case may be superficially similar to Brewer v. State, 286 Ark. 1, 688 S.W.2d 736 (1985), that case is distinguishable. In Brewer, the supreme court reversed a DWI conviction where it was shown that the officer who charged the defendant was not qualified to issue the citation. Clearly here the citation was issued by Officer Jordan and there is no claim that she lacked authority to do so.
Affirmed.
Cracraft and Cooper, JJ., agree.
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Donald L. Corbin, Chief Judge.
Appellant, First State Bank of Warren, Arkansas, appeals the jury’s award of damages to appellee, George Dixon, d/b/a Dixon Lumber Company & Builders Supply, contending there was not substantial evidence to show that appellee gave appellant a stop-payment order in a sufficient manner as to afford appellant a reasonable opportunity to act. We affirm.
On April 15, 1980, appellee called appellant bank to stop payment on a check he had written earlier that day: He gave appellant’s employee, Frances Hargis, the correct account number, check number, date, and payee of the check but misstated the amount of the check as $1,828.73. The correct amount of the check was $1,868.15. A few weeks later, appellee received his bank statement and discovered the bank cashed his check despite his stop-payment order. He notified appellant and requested that appellant credit his account for the amount of the check. Appellant refused, and appellee filed suit for recovery of the check amount.
The record reflects appellee testified that when he gave appellant’s employee, Frances Hargis, his stop-payment order, he stated it was his only check written to the payee and that it was drawn for $1,800.00 plus dollars. He stated that he was not advised by anyone at the bank that it needed the exact amount of the check in order to stop payment on it. He testified Frances Hargis advised him not to worry about it, that payment on it was stopped. Frances Hargis testified for appellant that appellant’s stop-payment requests were computerized, and appellant had to have the exact amount of a check in order to stop payment. She stated that when appellee called her to stop payment on the check, she told him she would need the exact amount. The information she put on the stop-payment order, she testified, was the figure appellee gave her.
Arkansas Statutes Annotated § 85-4-403 (Add. 1961) provides as follows:
(1) A customer may by order to his bank stop payment of any item payable for his account but the order must be received at such time and in such manner as to afford the bank a reasonable opportunity to act on it prior to any action by the bank with respect to the item described in Section 4-303 [§ 85-4-303],
(2) An oral order is binding upon the bank only for fourteen [14] calendar days unless confirmed in writing within that period. A written order is effective for only six [6] months unless renewed in writing.
(3) The burden of establishing the fact and amount of loss resulting from the payment of an item contrary to a binding stop-payment order is on the customer.
The Committee Commentary to the above statute is pertinent and provides:
2. The position taken by this section is that stopping payment is a service which depositors expect and are entitled to receive from banks notwithstanding its difficulty, inconvenience and expense. The inevitable occasional losses through failure to stop should be borne by the banks as a cost of the business of banking.
Appellant contends that the necessity of the exact amount of a check for which a stop-payment order is requested is critical because the computerized system it utilizes is a key feature of identification in its stop-payment procedure. We believe this argument, if allowed to prevail, would be inconsistent with the intent of the General Assembly in enacting Arkansas Statutes Annotated § 85-4-403. The commentary previously quoted indicates that the legislature clearly contemplated the burden being placed on the bank in the event of loss in such instances as the case at bar.
The issue of whether or not appellee’s stop-payment order was received in such manner as to afford appellant a reasonable opportunity to act upon it was submitted to the jury based upon instructions which included:
If you find that the [appellee], George Dixon, has complied with [Arkansas Statutes Annotated § 85-4-403], then the burden falls on Mr. Dixon to prove the actual amount of his loss; however, if you find that Mr. Dixon failed to give the [appellant] a stop payment order in sufficient time and manner as to afford the [appellant] reasonable opportunity to act, then you must find in favor of the [appellant], First State Bank.
You are instructed the [appellant] admits that on April 15, 1980, the [appellee] told an employee of the [appellant] he desired to stop payment on his check number 1346 drawn on the [appellant] bank on April 15, 1980, in an amount in excess of $1800.00 payable to Lloyd’s Chevrolet-Olds.
You are the sole judges on the issue of whether the [appellant] bank failed to exercise ordinary care in the transaction with the [appellee]. If you find the [appellant] failed to exercise ordinary care, then your verdict should be for the [appellee] in the amount you find by a preponderance of the [sic] [appellee] has lost.
After hearing the conflicting testimony of the parties and the instructions of the court, the jury found for appellee. It is within the province of the jury to believe appellee’s theory over appellant’s version, and on appeal, we only consider whether there is any substantial evidence to support the jury’s findings. Petrus Chrysler-Plymouth v. Davis, 283 Ark. 172, 671 S.W.2d 749 (1984). We hold there was substantial evidence to support the jury’s decision that appellee gave his stop-payment order to appellant in a sufficient manner so as to afford appellant a reasonable opportunity to act upon it.
Affirmed.
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John B. Robbins, Judge.
Appellant, Eric J. Woods, was convicted of battery in the first degree and sentenced to a term of ten years in the Arkansas Department of Correction. Appellant contends on appeal that the trial court erred in requiring his alibi witness, Ray Lewis, to be handcuffed when he was introduced to the jury and when he testified. We find no error and affirm.
The appellant was charged with violation of Ark. Code Ann. § 5-13-201, and a jury trial was held on January 15, 1992. Just prior to commencement of the trial, while the court was disposing of some pretrial matters, appellant’s attorney brought to the court’s attention the fact that his witness, Ray Lewis, was presently in the custody of the Pulaski County jail. He also reported that he had taken the liberty of having Lewis dressed in civilian street clothes for the trial and requested that he not be brought into the courtroom in handcuffs. He further informed the court that Lewis had two prior convictions and was currently charged with two counts of armed robbery. The trial court, initially stated that the matter would be decided by the court’s bailiff, who was of the opinion that Lewis was a security risk. Upon further protest by appellant, the court allowed counsel to call witnesses to discover the basis for believing Lewis was a security risk.
The court’s chief probation officer and bailiff, G. L. Smith, was called and testified that because the last two prisoners who escaped from court did so in civilian clothes the rule was adopted that prisoner-witnesses could not come to court in civilian clothes unless the prisoner was being tried in a jury trial. The trial court indicated it would make the same ruling, and stated that it was not convinced that appellant would suffer any prejudice by having Lewis handcuffed while testifying.
The trial court noted that it would allow appellant to voir dire potential jurors for possible prejudice due to the handcuffs and allow challenges for cause. The trial court also noted appellant’s continuing objection to the ruling on the handcuffs.
When the witness, Lewis, was introduced before the jury in handcuffs, the trial court stated that its policy was to introduce witnesses and it was not the intention of the trial court to draw attention to this witness. Lewis was again brought before the jury in handcuffs during the appellant’s presentation of his case.
The trial court has discretion to use physical restraints on a defendant for security purposes and to maintain order in the courtroom. Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990). The United States Supreme Court has said that where it is essential to maintain dignity, order, and decorum in the courtroom restraints may be used. Illinois v. Allen, 397 U.S. 337 (1970). Rule 33.1 of the Arkansas Rules of Criminal Procedure addresses the matter as follows:
Defendants and witnesses shall not be subjected to physical restraints while in the court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining the guilt.
(Emphasis added.) The rule leaves the issue of whether to subject a defendant or a witness to physical restraints while in the courtroom to the discretion of the trial judge.
As clearly reflected in the record, restraint was reasonable because of the witness’s prior felony convictions and the two pending charges of aggravated robbery for which he was being held in jail. The testimony of Chief Smith explained the security risks involved when a prisoner in the courthouse wears street clothes. The pending charges against Lewis and his exposure to increased punishment due to his prior felony convictions added to Lewis’s risk of flight. The trial judge is in a better position to evaluate the potential for danger and disruptions than this court on appeal.
Under Rule 33.1 of the Arkansas Rules of Criminal Procedure, “the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining guilt.” Although appellant made a continuing objection to his witness being seen by the jury in handcuffs, he never requested an admonition pursuant to Ark. R. Crim. P. 33.1.
Appellant contends on appeal that the trial court erred in requiring his witness to be handcuffed while testifying and during his introduction to the jury, because this resulted in prejudice to him and his right to a fair trial. It is not prejudicial, per se, when the defendant is brought into a courtroom handcuffed. Townsend v. State, 308 Ark. 266, 824 S.W.2d 821 (1992); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1985). In Williams v. State, 304 Ark. 218, 800 S.W.2d 713 (1990), the Arkansas Supreme Court said “we have held that it is not prejudicial, per se, when a defendant [witness] is brought into court handcuffed and that the defendant must affirmatively demonstrate prejudice.” The Arkansas Supreme Court has also stated that it “would not presume prejudice when there was nothing in the record to indicate what impression may have been made on the jurors . . . where the appellant did not offer any proof of prejudice.” Hill v. State, supra at 79, citing Gregory v. United States, 365 F.2d 203 (8th Cir. 1966). The appellant has offered no proof of prejudice and the record and abstract do not reflect any voir dire of the jury to substantiate his allegations that prejudice resulted from use of the handcuffs. See Ark. Sup. Ct. R. 9(d) and Johnson v. State, 261 Ark. 183, 546 S.W.2d 719 (1977).
Counsel for the appellant offered an alternative to handcuffing by suggesting that bailiffs be placed at the exits to the courtroom, and that they escort the witness to the witness stand. As pointed out in Townsend v. State, supra, this also would have been obtrusive and would put the jurors on alert that something is different about this witness.
In close cases regarding security in the courtroom, the trial judge is in a better position to evaluate the potential security risks involved with a witness or defendant. Here, the witness’s dress, his felony record, his pending aggravated robbery charges, and the risk to innocent people in the courtroom, gave the trial judge adequate justification for the use of restraints in this case. The judgment of the Pulaski County Circuit Court is therefore affirmed.
Affirmed.
Cooper and Rogers, JJ., agree.
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Judith Rogers, Judge.
At issue in this appeal is whether the chancellor was correct in applying the substantive law of Arkansas in modifying a Missouri divorce decree as it pertains to the age of majority and the payment of child support. Appellant contends that the chancellor’s decision to apply Arkansas law deprived the Missouri decree of full faith and credit. We agree with the chancellor’s ruling and affirm.
Appellant, Lana A. Elkins, and appellee, Mark James, were divorced in 1979 pursuant to a Jackson County, Missouri, decree. Custody of their two minor children was awarded to appellant, and appellee was ordered to make monthly child support payments in the sum of $200 per child through the clerk’s office of Jackson County. In 1980, appellant and the children moved to Arkansas; appellee moved to Oklahoma in 1982.
In October of 1985, appellant registered the Missouri divorce decree with the Sebastian County Chancery Court and sought an increase in child support. On December 17, 1985, the chancellor modified the decree in accordance with the parties’ agreement to increase support payments to $300 a month per child. The court retained the provision that the payments would continue to be paid through the clerk’s office in Jackson County, Missouri.
In July of 1989, the Sebastian County Chancery Court again modified the decree by approving an agreement of the parties regarding the payment of medical expenses. The order recited that appellee would be solely responsible for all future extraordinary medical, hospital, dental and orthopedic treatment for the minor children. The order further provided that child support payments would be abated during the time that the children actually spent with their father pursuant to the visitation schedule. The amount of child support was not increased at that time.
The instant litigation began on June 4,1991, when appellee petitioned the chancery court seeking the termination of child support for the parties’ older son, who had reached the age of eighteen. In his petition, appellee agreed to continue paying support for the remaining child and offered to increase payments on béhalf of that child from $300 to $500 per month. Appellant responded that appellee should not be relieved of the duty to support the older son because Missouri law required the payment of child support to continue for children in college until the age of twenty-one. The statutory provision referred to provides in part: “If when a child reaches the age of eighteen, he is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue until the child completes such program or reaches age twenty-one, whichever occurs first.” Mo. Ann. Stat. § 452.340.5 (Vernon 1986). Appellant also requested an increase in support for both children.
The chancellor found that appellant had twice invoked the jurisdiction of the Arkansas court when she registered the Missouri divorce decree in October of 1985 and when she called upon the court to have appellee provide payment of medical expenses for the two children, a matter which had not been addressed in the original Missouri decree. The chancellor thus held that Arkansas law applied and terminated support for the elder son.
Appellant contends on appeal that, as a matter of full faith and credit, the court should have applied the substantive law of Missouri concerning the termination of child support. The Full Faith and Credit Clause is found at art. IV, -§ 1 of the United States Constitution. Its purpose is to establish throughout the federal system the salutary principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943). In keeping with this principle, it has been held that a divorce decree as to past due installments of alimony or child support is within the protection of the full faith and credit clause and may not be modified as long as the courts in the state which rendered the decree have no discretion to modify such accrued installments. Sistare v. Sistare, 218 U.S. 1 (1910). However, future installments under a sister state’s decree may be modified as long as such installments are subject to modification in the state rendering the decree. New York ex re. Halvey v. Halvey, 330 U.S. 610 (1947).
The Revised Uniform Reciprocal Enforcement of Support Act, codified at Ark. Code Ann. §§ 9-14-301 — 334 (Repl. 1991), at section 9-14-340(a) provides:
Upon registration the registered foreign support order shall be treated in the same manner as a support order issued by a court of this state. It has the same effect and is subject to the same procedures, defenses, and proceedings for the reopening, vacating, or staying as a support order of this state and may be enforced and satisfied in like manner.
Appellant agrees that Arkansas courts can. treat the Missouri support order in the same manner as a support order issued in this state, as far as it involves obtaining jurisdiction of the parties and having the power to modify the order. However, appellant contends that any modifications made in Arkansas must be controlled by the law of Missouri.
Although Arkansas courts have not directly addressed the precise issue raised here, other jurisdictions have done so and their decisions provide guidance in this case. In Elkind v. Byck, 439 P.2d 316 (Cal. 1968), the court was also confronted with the situation where neither of the parties remained residents of the rendering state. The parties were divorced in Georgia, where the decree incorporated an agreement for the husband to establish a trust in the amount of $ 11,500 from which monthly child support payments would be made. This support provision was not subject to modification. Eight years later, the mother initiated proceedings to obtain further support under URESA in New York, where she and the child had moved, and the case was transmitted to California where the father had become a resident. The father defended the petition on the ground that the California court could not impose, consistent with the full faith and credit clause, any support obligation in excess of his duty under the Georgia decree. The father relied .on the decision in Yarborough v. Yarborough, 290 U.S. 202 (1933), where the United States Supreme Court reversed a decision from the Supreme Court of South Carolina and held that the courts of South Carolina were precluded by full faith and credit from modifying a Georgia child support decree which was not modifiable under Georgia law. The court in Elkirtd, however, held that California law applied. In rejecting the father’s contention, the court reasoned that Yarbor-ough was not controlling because the decision was founded upon the continuing presence of the obligor in the rendering state and because the Court had specifically reserved the question of whether a different result would obtain if the obligor no longer resided in the rendering state. See also e.g. Rollins v. Rollins, 602 A.2d 1121 (D.C. 1992). The Elkind court further observed that Georgia had not adopted the URESA provisions at the time Yarborough was decided, and expressed the view that with the adoption of the reciprocal support legislation “the federal system now espouses the principle that no state may freeze the obligations flowing from the continuing relationship of parent and child.” 439 P.2d at 320.
A similar result was reached by the Missouri Court of Appeals in Thompson v. Thompson, 645 S.W.2d 79 (Mo. Ct. App. 1982). At issue in that case was the power of the Missouri court to modify a Kansas divorce decree so as to change the age of majority from eighteen, as provided under Kansas law, to twenty-one, in accordance with Missouri law. At the time modification was sought, both parties resided in Missouri. The court recognized the competing policies of full faith and credit clause in protecting the sovereignty of Kansas, as opposed to the policy of Missouri with respect to the protection of domiciled minors in the area of parental support. In ruling that the Missouri court had the authority to order the husband’s child support obligation continued past the age of eighteen, the court reasoned:
A support decree governs a continuing relationship - that of the child and his parent. It is impossible for a rendering state to take into account another state’s interest that may arise in the future. In the case at hand husband, wife, and children were domiciliarles of Kansas at the time the support decree was entered. But by the time the modification of that decree, which is the subject of this appeal, was sought, all parties had moved to Missouri. Missouri is responsible for the welfare of the Thompson children, and Missouri continues a father’s support obligation until his child reaches the age of twenty-one. Mr. Thompson, the husband, became subject to Missouri law upon establishing a domicile in this state. Missouri need not accede to the judgment of a sister state concerning a continuing matter that has become a purely internal affair of Missouri.
In weighing the interests of Kansas under the policy reasons for full faith and credit and the interests of Missouri in the maintenance and support of minor children domiciled in Missouri, the balance must be struck on the side of Missouri.
Id. at 87, 88 (citations omitted). Cf. Davis v. Sullivan, 762 S.W.2d 495 (Mo. Ct. App. 1988) (holding that the full faith and credit clause precluded modification of a foreign state’s decree with regard to the age of majority where the obligor remained a resident .of the rendering state).
In In re the Marriage of McCabe, 819 P.2d 1116 (Colo. Ct. App. 1991), the court held that the full faith and credit impact to be given a decree from one state to another depends not only on whether that decree is modifiable but also on the present domicile of the parties. The parties there had divorced in California, where the age of majority was eighteen. Subsequent to the divorce, the wife and child moved to Virginia while the husband moved to Colorado. The wife petitioned a Colorado court for an increase in child support and also asked that support be continued until the child reached the age of twenty-one, the age of majority in Colorado. In ruling that Colorado could modify the foreign support decree and apply its age of majority, the court stated:
Thus, for two primary reasons, we conclude here that the full faith and credit clause does not restrict Colorado from applying its majority age to a subsequent child support action where a decree from another state with a different majority age'is involved.
First, the absence of the parties from the rendering state, particularly the obligor and the child, diminishes the rendering state’s interest in enforcing the decree in other states. Second, although the action here was not brought as a URESA action, the rendering state has, by adopting URESA laws, evidenced a general willingness to permit the laws of the obligor state to be applicable to further nonmodifiable child support payments.
We therefore conclude that, because none of the parties to the initial decree still reside in California and since California has adopted URESA, the full faith and credit clause does not preclude the application of Colorado law in this instance.
Id. at 1120.
The case of Finney v. Eagly, 568 So. 2d 816 (Ala. Civ. App. 1990), contains facts closely resembling those found in this case. The parties obtained a divorce in Utah, after which the wife and children moved to Alabama and the husband moved to Montana. The husband later brought an action in an Alabama court seeking joint custody, or specific visitation in the alternative. The wife requested an increase in child support. In its ruling, the trial court determined that the age of majority was controlled by the law of Utah, which provided for the termination of support at age eighteen. On appeal from that ruling, the Alabama court was persuaded by the Missouri Court of Appeals’ analysis in Thompson v. Thompson, supra, and reversed, holding that the issue was governed by Alabama law, which fixed the age of majority at age nineteen.
We note appellant’s argument that the decision in Holley v. Holley, 264 Ark. 35, 568 S.W.2d 487 (1978), is dispositive of the question presented here. There, in addressing the chancellor’s remission of past due support under a foreign decree, the court, in obiter dictum, remarked in reference to full faith and credit that “ [t] here is at least doubt about the power of the Arkansas court to reduce this foreign judgment under any circumstances in view of the Kansas law on this subject.” The court went on to say that it was deciding the case under Arkansas law as the parties had not invoked Kansas law. It is clear that the court did not decide the issue raised here as the question was not squarely before it. Also, while the wife and children lived in Arkansas, it is not apparent from the opinion where the obligor resided and, as appellant recognizes, the decision antedates the enactment of URESA. Therefore, we do not agree that Holley is controlling.
Instead, from our review, the case law illustrates that the full faith and credit clause erects no barrier to the application of Arkansas law on this subject, particularly where the obligor has not remained a resident of the rendering state. In the present case, Arkansas and Missouri have both adopted the Uniform Reciprocal Enforcement of Support Act. Neither party questions the authority of an Arkansas Court to modify the Missouri decree and appellant has twice obtained affirmative relief from the court in this state. The parties here no longer have any ties to Missouri, except for the receipt by the clerk’s office in Jackson County, Missouri, of appellee’s monthly child support payments. Appellee has lived in Oklahoma since 1982 and appellant and their two sons have lived in Arkansas since 1980. We find that, after more than a decade, Arkansas has acquired an interest in the welfare of these children such that the issue of their support has become an internal affair of this state. Based on these considerations, we hold that the law of Arkansas is applicable, under the facts of this case, to the issue of their continuing support. Under Arkansas law, absent special circumstances which are not present here, there is no legal obligation on the part of a parent to contribute to the maintenance and support of his or her children after they reach the age of eighteen. See Mitchell v. Mitchell, 2 Ark. App. 75, 78-79, 616 S.W.2d 753, 754-55 (1981). The chancellor was correct in modifying the decree and terminating child support for the child who had reached the age of eighteen.
Affirmed.
Cracraft, C.J., and Cooper, J., agree.
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Elizabeth W. Danielson, Judge.
The appellant in this case appeals from a ruling by the Phillips County Circuit Court that reversed the school board’s decision to terminate a teacher, appellee Ronald Davis, pursuant to the Teacher Fair Dismissal Act, Ark. Code Ann. §§ 6-17-1501 — 1510 (1987). The trial court found that appellant was denied due process during the school board proceeding. We disagree and reverse the decision of the trial court.
Appellee, a nonprobationary school teacher in the Helena-West Helena School District, acted as one of several chaperones on a field trip to Hot Springs for twenty-four third and fourth graders. When two other chaperones discovered that two girls were missing from their hotel room and began to inquire up and down the hall, appellee announced that they had become alarmed in their own room and were in his room watching television. After the group returned to West Helena the next day, principal Ernest Simes was notified by the parents of one of the two girls that their daughter was reporting she had been sexually molested by appellee when the two girls were in appellee’s hotel room.
Mr. Simes and several of the chaperones met with the girl’s parents that same night. Mr. Simes then met with appellee and told appellee of the accusation against him. On Sunday, Mr. Simes became aware that the other girl was making similar accusations. Following meetings with the parents on Monday and another meeting with appellee, appellee was suspended with pay.
Due to the pendency of the criminal charges that had been filed against appellee, the school district took no further action for several months. On January 6,1989, the superintendent notified appellee by letter that he was recommending appellee’s discharge based on sexual molestation of students during the Hot Springs field trip, and advised appellee of his rights under the Teacher Fair Dismissal Act.
Appellee requested a hearing, which was held April 6,1989. The medical reports of the two girls were introduced, along with the testimony of Mr. Simes and three others who had served as chaperones on the trip. At the beginning of the hearing, appellee acknowledged that the girls and their parents had chosen not to be present, and then requested a private hearing. At no time did appellee object to the absence of the girls or their parents, or to the fact that he would not be able to cross-examine them due to this absence. The trial court, however ruled that appellee was denied due process because he did not have the opportunity to cross-examine these parties. Appellant argues that the trial court was clearly erroneous in finding that the school board was arbitrary and capricious in dismissing appellee.
The decision to terminate a teacher pursuant to the Teacher Fair Dismissal Act is a matter within the discretion of the school board, and the reviewing court cannot substitute its opinion for that of the school board in the absence of an abuse of that discretion. Caldwell v. Blytheville School District No. 5, 23 Ark. App. 159, 746 S.W.2d 381 (1988). In reviewing the trial court’s decision, we will affirm unless the court’s findings are clearly erroneous. Id. It is not the function of this court to substitute its judgment for that of the circuit court or the school board. Allen v. Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138 (1990).
In Re Sugarloaf Mining Co., 310 Ark. 772 at 776-777, 840 S.W.2d 172 (1992), the supreme court set out the standard of review of administrative decisions:
Review of administrative decisions, both in Circuit Court and here, is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Administrative action may be regarded as arbitrary and capricious only when it is not supportable on any rational basis. It has been said that the appellate court’s review is directed not toward the circuit court, but toward the decision of the agency. . . .
The standard has its origin in the Administrative Procedure Act and our case law which requires that appellate review under the act be “narrowly prescribed” with “a role of limited scope”. . . .
In Wright v. Arkansas State Plant Board, 311 Ark. 125 at 130-131, 842 S.W.2d 42 (1992), the supreme court also discussed the review of administrative decisions:
[ W]hen reviewing the administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion. . . .
To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion. ... To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion.
In reaching his decision to reverse the school board’s determination, the trial court relied on Casada v. Booneville School District No. 65, 686 F. Supp. 730 (W.D. Ark. 1988). In Casada, the court found that the teacher was denied due process where he was not given prior notice of the names of his accusers or the specific nature and factual basis for the charges and was not allowed to cross-examine the witnesses. Casada, however, is distinguishable from the case at bar because appellee was promptly notified of the identity of his accusers and the specific nature and factual basis of the charges against him. Although appellee did not have the opportunity to cross-examine the girls or their parents due to their absence, he never objected to this fact or indicated in any way that he desired to exercise his right to cross-examine these parties. Even constitutional issues may be waived if they are not raised below. See Caldwell v. Blytheville School District No. 5, 23 Ark. App. 159, 746 S.W.2d 381.
In Alcoholic Beverage Control Div. v. Barnett, 285 Ark. 189, 685 S.W.2d 511 (1985), the court cited a United States Supreme Court decision, Unemployment Commission v. Oregon, 329 U.S. 143 (1946), in explaining why it is essential to a judicial review under the Arkansas Administrative Procedures Act that issues must be raised before the administrative agency appealed from:
A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not therefore presented and deprives the [administrative agency] of an opportunity to consider the matter, make its ruling, and state the reason for its action.
And in American Transportation Corporation v. Director, 39 Ark. App. 104 at 108, 840 S.W.2d 198 (1992), we noted that where “the party does not request the right to cross-examine the witnesses whose hearsay statements have been received in evidence, he effectively waives his right of cross-examination, and due process requirements are not violated.”
Appellee’s failure to raise the issue of his right to cross-examine the witnesses resulted in a waiver of that right. Considering the testimony and evidence introduced at the school board hearing, and the deference we give to administrative decisions, we find the school board’s decision to terminate appellee was supported by substantial evidence and was not arbitrary or capricious. The trial court’s reversal of that decision is therefore clearly erroneous and must be reversed.
Reversed.
Mayfield and Rogers, JJ., concur.
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Melvin Mayfield, Judge.
The appellant is an improvement district which was formed for the purpose of building a sewer system to serve certain lands in Pulaski County. It filed suit against the appellees to condemn the permanent and temporary easements alleged to be necessary to construct and maintain the system. A total of .7558 acres was taken for the permanent easement and 1.8213 acres for the temporary construction easement.
There are five tracts of land owned separately by the appellees. The tracts vary in size from about 8 to slightly less than 2 acres. Appellees own a total of 17 acres, with more than one-half of it located within the Rock Creek “floodway” as designated by the Federal Emergency Management Agency. Other portions are located within the designated “floodplain.” The property is effectively severed by the creek. The portion north of the creek fronts on Kanis Road. Access to the portion south of the creek is severely limited.
Appellant deposited $1050 as estimated just compensation for the property condemned. At trial the appellant’s witnesses testified that the market value of the appellees’ property before the taking would range from $1000 per acre to about 5300 per acre. The testimony of the appellees’ witnesses placed that value in a range of $340,000 to $420,000 per acre. The jury returned a verdict for the appellees in a total amount of $82,768.30. For reversal, the appellant argues four points. We discuss each point separately but not necessarily in the same sequence argued by appellant.
I.
The first point we discuss is appellant’s contention that “the trial court should have struck the landowners’ value testimony.”
The record shows that this case was tried two times. In the first trial the court granted the improvement district’s motion for directed verdict in the amount of its deposit. This resulted from the court’s granting the district’s motion to exclude the testimony of the landowners’ expert witnesses on the basis that their testimony was not admissible on the issue of the amount due for just compensation to the landowners. Afterwards, the court granted the landowners’ motion for new trial. This appeal is from the judgment entered after the second trial. The point now under discussion was raised by appellant’s motion to strike the testimony of the landowners’ two “expert” witnesses who had also testified in the first trial.
One of the expert witnesses was John W. “Jay” DeHaven. The appellant argues the court should have struck Mr. DeHaven’s testimony because he did not have a reasonable basis for his testimony. We do not think it would serve any purpose to discuss the testimony of this witness in detail. Suffice it to say that the motion to strike presented a matter largely within the sound discretion of the trial judge. Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 849, 349 S.W.2d 133 (1961). See also Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985). We cannot say that the trial judge erred in refusing to strike Mr. DeHaven’s testimony.
The landowners’ other expert witness was Mary Kay Peyton. We discuss her testimony in some detail in order to explain our holding on this point and because her testimony is also involved in our consideration of appellant’s third point for reversal.
Ms. Peyton was an employee of the Maumelle Company. Mr. DeHaven was president of that company. Both he and Ms. Peyton testified that the highest and best use of the appellees’ property was for commercial development. Ms. Peyton was not an appraiser but was a licensed real estate broker and was general sales manager at the Maumelle Company, which was a land development and marketing company. This case was Ms. Pey-ton’s first time to give an opinion on value to a jury in a condemnation case.
At the first trial Ms. Peyton’s testimony was struck because she “figured” the value of the entire property owned by the appellees at $2.50 per square foot. She then used that figure to determine the value of the portion taken for easement purposes by the appellant. She testified: “But I did not determine separately the fair market value of the actual easement itself, independent of the rest of the property.” In sustaining the objection to Ms. Peyton’s testimony in the first case, the judge said, “Under Ms. Peyton’s method of valuation, one could pick any spot of land out of the entire tract and Ms. Peyton would value it at $2.50 per square foot. And yet, it is obvious that some portions of the tract are worth more than that, some less.”
At the second trial, Ms Peyton evaluated the appellees’ land separately. Two tracts were still given the value of $2.50 per square foot, but “to be conservative,” Ms. Peyton testified, the other tracts “were adjusted” to $2.00 per square foot. She testified that she had changed her “approach” for the second trial, but admitted “I have gone back and recalculated to come up with a different method for establishing basically the same thing.” Ms. Peyton did testify that she started with a square-foot valuation based on the market value of comparable property. She said she adjusted the value of the appellees’ property based on the information she gathered on the cost of filling appellees’ land to where it would be suitable for commercial development. She admitted there was a problem with access to that portion of appellees’ property south of the creek, that she had “no idea” what it would cost to build a bridge over the creek, but she thought there were “all kinds of possibilities in dealing with that creek besides building a two million dollar bridge across it.” She also testified, using the Williford property as an example, that after his property was filled, brought to grade, and was ready to be built on, it would be worth $2.50 per square foot; that this would be the average price, the portion north of the creek and fronting on Kanis Road being worth $6.00 per square foot and the portion south of the creek being worth $.50 per square foot.
Because the motion to strike is largely a matter of discretion, we cannot hold that the trial court erred in refusing to strike Ms. Peyton’s value testimony, but her testimony impacts on the next point that we discuss.
II.
The second point we discuss is appellant’s argument that the trial court applied the wrong measure of damages.
Appellant offered two instructions, which were refused, on the measure of just compensation. Requested Instruction No. 3 was as follows:
The measure of damages allowed for the taking of land for a right-of-way or easement is the market value of the land so taken and, separately, the damage, if any, resulting from the taking to the owner’s remaining lands.
The other instruction offered by appellant on the measure of just compensation was requested Instruction No. 4, which stated:
You are instructed that the measure of compensation to be paid for the temporary easement is the fair rental value of the property within the temporary easement for the period of construction which, in this case, was one year.
The court refused each of the above requested instructions, and over appellant’s objection that it was the wrong measure of damage, the court gave the jury the following instruction:
Y ou are to assess the damages to the property of Doug Williford, Juanita Starks, Ron and Diana Hopper and Tom Starks and you must then fix the amount of money which will reasonably and fairly compensate each of them for the difference in the fair market value of the lands of each immediately before and immediately after the taking.
The appellant contends that the correct measure of damages in a condemnation case involving a partial taking by a nonsover-eign condemnor is the value of the land taken plus any damage to the remainder, but if the taking is by the sovereign, the correct measure is the difference in the fair market of the entire tract immediately before and immediately after the taking. Our decision in Arkansas Louisiana Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985), is cited in support of appellant’s contention. In that case we acknowledged that the rule in the two situations is different. We explained that this results from the right of the sovereign to have any special benefits offset against the damages sustained by the landowner, while no such right exists where the condemnor is a private corporation. Cited in support of our explanation where the cases of Arkansas Louisiana Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968), and Ozark Gas Transmission System v. Hill, 10 Ark. App. 415, 664 S.W.2d 892 (1984).
As we stated in James, the Arkansas Constitution permits the state to authorize private corporations to condemn property but Article 12, § 9 provides that full compensation must be paid by the corporation “irrespective of any benefit from any improvement proposed by such corporation.” What this means was summed up by the Arkansas Supreme Court in Howell:
Consequently, we hold that, when a private corporation takes property through the process of eminent domain, damages are properly awarded on the basis of the full fair market value for the easement taken, plus any damage occurring to the remainder of the property.
244 Ark. at 90.
Although the appellees contend that the appellant improvement district should be accorded the status of sovereign for the purpose of determining the proper measure of damages when the district exercises its power of eminent domain, we do not agree. Appellant is a property owners’ improvement district formed under the provisions of Ark. Code Ann. §§ 14-93-101 — 14-93-133 (1987 and Supp. 1991). Ark. Code Ann. § 14-93-113(a) (Supp. 1991) provides:
(1) All districts organized under this chapter shall have the right of eminent domain in order that they may carry out the purposes of their creation.
(2) This right shall be exercised in the same manner as in the case of railroad, telegraph, and telephone compa nies, but without the necessity of making a deposit of money before entering into possession of the property condemned.
The right of eminent domain granted to railroad, telegraph, and telephone companies is controlled by Ark. Code Ann. §§ 18-15-1201 — 18-15-1207 (1987). Section 18-15-1204(b) provides:
The amount of damages to be paid the owner of the lands for the right-of-way for the use of the company shall be determined and assessed irrespective of any benefit the owner may receive from any improvement proposed by the company.
It is clear that the explicit statutory provisions governing the exercise of the appellant improvement district’s right of eminent domain require payment for the market value of the land taken without offset for any benefit the landowner may receive from the construction of the improvement.
Thus we have two methods to arrive at just compensation in eminent domain cases. When the sovereign exercises its right to take a portion of a tract of land, the proper way to measure just compensation is by the difference in the fair market value of the entire tract immediately before the taking and the fair market value immediately after the taking. In this way any special benefit resulting from the public use of the land taken by the sovereign which increases the value of the land not taken will offset the amount the sovereign will have to pay. This is proper because the owner of the land has received his just compensation, although partly by the increase in value of the land he has left.
On the other hand, where railroad, telegraph and telephone companies (or improvement districts) exercise the right of eminent domain, the just compensation to the owner of the land taken is properly measured by the value of the portion of the land taken plus any damage to the portion left. In this way, the owner of the land receives payment “irrespective of any benefit” the owner may receive from the construction of the improvement. This is proper because it is what the statutes enacted by the legislature of this state, in keeping with our constitution, provide.
Our case of Arkansas Louisiana Gas Co. v. James, supra, which thoroughly discussed these two measure of just compensation, and the reasons for them, also discussed another point argued by the appellees in the instant case:
While testimony as to the before and after values might be prejudicial to the landowner as permitting the trier of fact to consider special damages, it prejudices no right of the appellant corporation. If there was technical error in admitting this testimony of appellee it was harmless.
15 Ark. App. at 189. While there was no prejudice to the appellant in James, we think there was prejudice in the instant case. Here, the easement taken for the sewer line was within the Rock Creek floodway. Neither of the appellees’ expert witnesses testified to the value of the easement actually taken. Their testimony focused upon the difference in the value of the appellees’ property before and after the taking. This is also how the trial court’s instruction told the jury to arrive at the amount of just compensation to be awarded to the appellees. This case, however, is not like the James case where only the testimony was at issue. There is nothing in that opinion which suggests that the court instructed the jury that the way to measure just compensation was to take the difference in the before and after values. Under the peculiar circumstances here, including the vast difference in the appellant’s and appellees’ value testimony, we think it was error for the court to instruct the jury to award the appellees the difference in the before and after value of their property instead of the value of the property taken and the damage, if any, to the land remaining. The appellant has expressed the point as follows:
[ B]y applying the before and after measure, the Court enabled the Appellees’ value witnesses to establish an “across the board” average value per square foot of each of the tracts involved which had the effect of increasing the value of the floodway lands because they were averaged with the Kanis Road frontage.
As the appellant points out, Ms. Peyton testified that two tracts were worth $2.50 per square foot and the other tracts were worth $2.00 per square foot. She did not, however, testify as to the value of the property taken for the easement. We think the failure of the trial court to correctly instruct the jury to base compensation on the value of the easement taken, plus any damage to the property remaining, constituted reversible error. We also think the court should have given appellant’s requested Instruction No. 4, which pertained to the temporary easement.
III.
We now discuss appellant’s argument that the trial court should have allowed the landowners to be questioned concerning the purchase price paid for their properties. We think the court did err in not allowing appellant to cross-examine appellee Williford about this matter since Williford said on direct examination that he “certainly paid more” for his property than the appellant offered to pay for the taking of Williford’s property. However, this point may not arise on retrial. As to the other appellees, the considerations on retrial will involve how recent the purchase was, whether the transaction was voluntary, whether there has been marked fluctuation in values since the purchase, and various other factors. See Arkansas State Highway Commission v. Hubach, 257 Ark. 117, 514 S.W.2d 386 (1974); Arkansas Power and Light Co. v. Llewellyn, 268 Ark. 839, 595 S.W.2d 712 (Ark. App. 1980).
IV.
Finally, we discuss the appellant’s contention that the trial court erred in refusing to instruct the jury that the landowners has the burden of proving that the amount deposited by the appellant was not sufficient as just compensation for the property taken. Instruction No. 6, offered by appellant and refused by the court, was as follows:
The defendants contend that the plaintiff has not offered just compensation for the easement right taken for the sewer line. The defendants have the burden of proving this contention.
The court also refused appellant’s requested instruction No. 7, which is AMI Instruction 202. This instruction would have told the jury that the party who has the burden of proof on an issue must establish it by a preponderance of the evidence and would have defined the meaning of preponderance of the evidence.
It has long been recognized in Arkansas that the burden of proof on the issue of just compensation is upon the landowner. In Springfield and Memphis Railway v. Rhea, 44 Ark. 258 (1884), the court said:
To the defendant were justly accorded the opening and conclusion of the argument. The landowner is, in such cases, the real actor, no matter which party initiates the proceedings. No issue can be raised as to the right of the railroad corporation to condemnation, or as to his right to compensation. The law confers these rights, and the filing of the petition by the railroad company is an admission that he is entitled to some damages. The extent of the damage is the object of the inquiry. And here the burden of proof is upon him.
Id. at 264 (emphasis added). We do not find where this point has been questioned since the above case was decided; however, the Arkansas Supreme Court has occasionally repeated the rule. In Arkansas State Highway Commission v. Hambuchen, 243 Ark. 832, 833, 422 S.W.2d 688 (1968), the court said, “The landowners, having the burden of proof on the issue of value, rested their case after having produced only two witnesses.” In Arkansas State Highway Commission v. Southern Development Corporation, 250 Ark. 1016, 1020, 468 S.W.2d 102 (1971), the court said, “Market value is a factual issue peculiarly within the province of the jury and to be proved by the owner as a fact.” And in Arkansas State Highway Commission v. First Pyramid Life Insurance Company, 265 Ark. 417, 579 S.W.2d 587 (1979), Justice Fogleman, dissenting in part, said, “In this case, the ultimate power of the sovereign is pitted against the private citizen-subject who bears the burden of proving by a preponderance of the evidence the amount of ‘just compensation’ due him for his property taken by the sovereign,” 265 Ark. at 427.
Moreover, Ark. Code Ann. § 16-64-110 (1987), in pertinent part, states:
(3) (A) The party on whom rests the burden of proof in the whole action must first produce his evidence;
(B) The adverse party will then produce his evidence;
(6) The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon the demand of his adversary, he refuses to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion.
In keeping with the above statutory provisions, the appellees in this case first produced their evidence, and in the arguments to the jury the appellees opened and closed.
We think it is clear that in Arkansas in a condemnation case where the issue is just compensation the landowners have the burden of proof on that issue. While the appellees cite some authority in other jurisdictions which hold that neither party has the burden on this issue — that it is simply a question of going forward with the evidence — we think the rule is different in this state and that this case was subject to our well-established rule that places the burden of proving just compensation on the landowner and gives him the right to open and close in producing evidence and arguing the case to the jury.
The appellees suggest, however, that even if they had the burden of proof, it was not reversible error for the trial court to refuse to give appellant’s requested jury instruction on that point. We cannot agree.
The just compensation evidence in this case varied tremendously. Appellees’ witness, Jay DeHaven, fixed their just compensation at more than $260,000. The highest amount fixed by the appellant’s witnesses was $3890. The per-acre value of the land owned by appellees ranged between $340,000 to $420,000 according to appellees’ evidence and from $1000 to $5300 according to appellant’s evidence. We believe the jury should have been told who had the burden of establishing the amount of just compensation to which the appellees were entitled. Moreover, by refusing to give appellants’ requested instruction No. 7, there was no instruction by the court that gave the jury any guidance on the amount, degree, or weight of the evidence upon which it should base its verdict. In addition to telling the jury that the party who has the burden of proof on an issue must establish it by a preponderance of the evidence, instruction No. 7 would have told the jury that “it, upon any issue in the case, the evidence appears to be equally balanced,of if you cannot say upon which side it weighs heavier, you must resolve that question against the party who has the burden of proving it.”
Both requested instructions No. 6 and 7 would have given crucial guidance to the jury which had the task of making a decision based upon enormously conflicting evidence. However, we are not satisfied that appellant’s requested instruction No. 6 was totally correct, and it is the general rule that a party entitled to an instruction on an issue may not complain of the failure of the court to instruct on the matter if the requested instruction is erroneous or incomplete. Pineview Farms, Inc. v. Smith Harvestore, Inc., 298 Ark. 78, 90, 765 S.W.2d 924, 931 (1989). And if appellant’s requested instruction No. 6 should not have been given, requested instruction No. 7 would have been abstract and could not have been given. Nevertheless, we are reversing this case on another point, and in view of another trial we discuss the problem presented by appellant’s requested instruction No. 6.
That instruction would have told the jury that the landowners contend the improvement district has not offered just compensation and the landowners have the burden of proving this contention. We are aware of the case of Arkansas State Highway Commission v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989), and its holding that Ark. Code Ann. § 27-67-312 (1987) requires an estimate of just compensation to be annexed to the declaration of taking of property for public highway purposes and that this estimate is not a negotiation or settlement figure excluded as evidence by Ark. R. Evid. 408. See 300 Ark. at 462, 780 S.W.2d at 330. That statute, however, applies to eminent domain actions brought by the State Highway Commission. The statutes applicable to such actions brought by improvement districts do not make the same provision. Even more important is the tendency of appellant’s requested instruction No. 6 to focus the jury’s attention on the landowners’ burden to prove that the appellant had not offered just compensation rather than the amount of just compensation to which the landowners were entitled.
On retrial, we think the issues in this case can be properly submitted to the jury by the usual instructional format which would tell the jury that this is an eminent domain action whereby the improvement district is taking the permanent and temporary easements necessary to construct and maintain a sewer system. The instructions should then tell the jury that “you have the duty to determine from a preponderance of the evidence, and from the rules set out in the court’s instruction, the amount of just compensation to be awarded the defendants.” That instruction should be followed by the instruction on the measure of damages applicable to the case as set out in appellant’s requested instructions No. 3 and 4. Those instructions should be followed with one which tells the jury that the burden of proof is on the landowners to prove their claims for just compensation by a preponderance of the evidence. That phrase should then be defined as set out in appellant’s requested instruction No. 7, which is AMI Instruction 202.
Of course, other specific instructions would be given as needed, but the instructions outlined above will, in our opinion, present the basic elements to the jury on retrial.
Reversed and remanded.
Cracraft, C.J., concurs in the result.
Jennings, J., dissents.
Rogers, J., joins in the dissent.
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Melvin Mayfield, Chief Judge.
This is an appeal from a decision of the Workers’ Compensation Commission which held that: (1) appellee is currently totally disabled; (2) appellants controverted payment of all benefits after June 3,1981; (3) the accident in which appellee was injured, when his work basket fell twenty-five feet from a crane to the ground, resulted from improper safety measures. We find substantial evidence to support the Commission’s decision and thus affirm.
Appellants contend that appellee’s injuries fall within the schedule set forth in Ark. Stat. Ann. § 81-1313(c) (Repl. 1976) and that the Commission’s finding of “current” total disability is reversible error. Although they correctly cite Anchor Constr. Co. v. Rice, 252 Ark. 460, 479 S.W.2d 573 (1972), for the principle that a scheduled injury cannot be apportioned to the body as a whole in. determining the extent of permanent partial disability as distinguished from permanent total disability, appellants ignore a line of cases that began with McNeely v. Clem Mill & Gin Co., 241 Ark. 498, 409 S.W.2d 502 (1966).
In McNeely, which involved the same point as the instant case, the Arkansas Supreme Court upheld a Commission finding of total disability of indeterminable duration. The court observed that “Inasmuch as there was substantial evidence that might have sustained a finding of permanency ... we fail to see how appellees are hurt by the Commission’s deferment of this question until the exact extent of the disability might become clearer.”
McNeely gave expression to a concept of applied law that remained without a label until City of Humphrey v. Woodward, 4 Ark. App. 64, 66, 628 S.W.2d 574 (1982), almost 16 years later. In that case, we adopted a phrase used for convenience by the Commission in its opinions and upheld the indefinite benefits of an employee found to be “currently totally disabled.” We discussed the development of this area of the law and observed that
now when we speak of total disability, such benefits may be denominated further in terms of “current” total, “limited” total or total disability benefits “until such time as total disability ceases.” . . . Obviously, in making such an award, the Commission remains hopeful that the claimant’s disability is not permanent and that he will eventually return to work.
In the instant case, we agree with appellee’s argument based upon McNeely, supra, and Taylor v. Pfeiffer Plbg. & Htg. Co., 8 Ark. App. 144, 648 S.W.2d 526 (1983), that a claimant’s benefits for a scheduled injury are not limited to the benefits provided by Ark. Stat. Ann. § 81-1313(c) when the scheduled injury renders the. claimant totally disabled. Here, the Commission found that ap-pellee’s injuries rendered him totally disabled. The fact that the Commission found the total disability to be “currently” total seems to be no different from the situation in McNeely. We fail to see how the appellants are hurt by the possibility that the total disability in the instant case may not last forever.
On appeal, we must affirm if the Commission’s finding is supported by substantial evidence; even when a preponderance of the evidence might indicate a contrary result, we affirm if reasonable minds could reach the Commission’s conclusion. Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). Questions of credibility and the weight and sufficiency of evidence are matters for determination by the Commission. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). The Workers’ Compensation Commission is better equipped, by specialization and experience, to analyze and translate evidence into findings of fact than we are. Central Maloney, Inc. v. York, supra. With these considerations in mind, we find sufficient evidence to support the Commission’s finding of current total disability.
In their second point for reversal, appellants insist that the finding by the Commission that all benefits after June 30,1981, were controverted was not supported by substantial evidence. Appellants maintain that the record reflects no controversion of any benefits other than a reported statement by their lawyer: “[W]e contend the matter is in controversion in this case.” This remark, they say, was made in the context of a change of physician hearing and had no reference to a change of benefits.
Controversion is a question of fact for the Commission. Climer v. Drake’s Backhoe, 7 Ark. App. 148, 644 S.W.2d 637 (1983). See also Revere Copper & Brass, Inc. v. Talley, 7 Ark. App. 234, 647 S.W.2d 477 (1983). The Commission could easily have found substantial evidence of controversion based upon appellants’ (1) failure to agree to a change of physician; (2) insistence that appellee’s injuries were merely scheduled injuries; (3) denial of the violation of a safety standard; (4) assertion that the Second Injury Fund was a necessary party; (5) claim that appellee was not totally disabled. We find substantial evidence to support the Commission’s finding that appellants controverted appel-lee’s claim.
Appellants argue in their third point that the Commission’s holding that the accident was the result of improper safety measures was not supported by “clear and convincing evidence.” Ryan v. NAPA, 266 Ark. 802, 586 S.W.2d 6 (1979). Ark. Stat. Ann. § 81-1310(d) (Supp. 1983) provides that compensation will be increased by 15% when a claimant establishes by “clear and convincing evidence” that his injury was caused in substantial part- by the employer’s failure to comply with statutes or regulations. Appellants contend that the employer made efforts to see that the safety latch remained on the hook. Three witnesses, however, testified that the hook on the basket had no safety latch as required by Arkansas law. Under this section of the law, the Commission must base its decision of noncompliance upon clear and convincing evidence. Our duty is to affirm the Commission when its decision is supported by substantial evidence. Georgia Pacific Corp. v. Ray, 273 Ark. 343, 619 S.W.2d 648 (1981); Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W.2d 692 (1980). We hold that the Commission’s finding on this point was supported by substantial evidence.
Affirmed.
Cracraft and Cloninger, JJ., agree.
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Donald L. Corbin, Judge.
Appellants, Cullen Reed Harris and Sandra Kay Harris, were tried and convicted by a Sevier County jury of the offense of manufacturing a controlled substance. The trial court sentenced each appellant to fifteen years in the Arkansas Department of Correction and fined each the sum of $12,000.00. We reverse and remand for a new trial.
I.
THE TRIAL COURT ERRED IN OVERRULING APPELLANTS’ MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE WAS INSUFFICIENT.
We need not address this point for reversal challenging the sufficiency of the evidence inasmuch as we reverse and remand for procedural errors committed by the trial court.
II.
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF FINGERPRINT COMPARISONS BECAUSE APPELLANTS’ FINGERPRINTS WERE OBTAINED AFTER AN UNLAWFUL ARREST.
The only witness to testify at the suppression hearing on the arrest was Bill Jones, The Chief of Police of DeQueen, Arkansas. He stated that Lt. Duval of the Arkansas State Police had contacted him stating that the state police would like to question appellants. Several days later, Jones observed appellants’ car and followed it until he could confirm that the state police still wanted to question appellants. Jones then stopped appellants and when appellant Cullen Harris started to get out of the car, Jones observed a pistol. Appellant Cullen Harris was subsequently charged with illegal possession of a prohibited weapon. Appellants’ fingerprints were taken and matched for comparison with prints taken from items in the van. Appellants were successful in municipal court in having the illegal possession of a handgun charge dismissed on the basis of the extended trip exception. We see no error here. It is clear from Chief Jones’ testimony that the officer in this case made a proper determination of probable cause to arrest appellants without a warrant on the handgun charge following a proper stop of their vehicle in order to question them about another offense. See Ark. Stat. Ann. § 43-429 (Repl. 1977), and A.R.Cr.P. Rule 2.2.
III.
THE TRIAL COURT ERRED IN DENYING APPELLANTS’ MOTION FOR EITHER A MISTRIAL A CONTINUANCE OR SUPPRESSION OF THE EVIDENCE BECAUSE IT BECAME APPARENT DURING THE TRIAL THAT THE STATE HAD EITHER REFUSED TO OBEY THE COURT’S ORDER REGARDING DISCOVERY OR HAD KNOWINGLY OFFERED UNTRUE TESTIMONY.
The record reflects that defense counsel, prior to trial, filed two separate motions for discovery. Because the State failed to respond to the first motion, the case was continued. Once the discovery requests were complied with, it became apparent to defense counsel that persons other than appellants had made suspicious purchases of chemicals from several companies located in Little Rock and Conway. In an effort to find out who had been making these purchases, defense counsel filed a subsequent motion for discovery requesting the notes from interviews with the employees of these chemical companies and copies of any photographs shown to them. Information furnished by the State indicated that no witness had identified either appellant. The State further claimed that photographs of appellants were shown to the witnesses between April 11, and April 13, 1982. The photographs of appellants furnished by the State were photographs taken after their arrest on April 27, 1982, and could not possibly have been the photographs exhibited to the witnesses.
During trial, witness Betty Martin testified that she recognized appellant Sandra Harris as having been a passenger in a van driven by a person known to her as Jim Roberts when he purchased chemicals from Ms. Martin’s employer, SIS, Incorporated, on three occasions in the spring of 1981. She also claimed that an Officer Berry or some other officer had shown her four individual photographs of four different women, from which she selected a photograph of appellant Sandra Harris. This occurred on cross-examination by defense counsel. She did admit, however, that she could have selected a photograph of someone else, but insisted that police had shown her photographs on several occasions and that she had selected a photograph of the woman riding in a van with Jim Roberts. Officer Berry testified both before the jury and in an in-camera hearing that he had shown photographs to Ms. Martin on one occasion, that she had identified two photographs of Jim Roberts and that Ms. Martin had stated that a photograph of a woman looked like the person she saw as a passenger in the van. It was stipulated by the parties that this photograph of a woman was not in fact a photograph of appellant Sandra Harris.
The record reflects that the State was apparently as surprised as defense counsel in regard to the alleged out-of-court identification based upon photographs shown to Ms. Martin by a second officer, an Officer Stepp. No record of this identification was in Officer Berry’s records or in any of the prosecution’s files.
We do not agree with the State’s contention that Officer Berry’s testimony could be used as impeachment of Ms. Martin’s testimony and that no error occurred. The argument of appellee is without merit as the harm was already done at this point and the prejudice to appellants obvious. Furthermore, it is of no avail to the State that defense counsel had equal access to witness Martin. The record reflects that defense counsel did have contact with Ms. Martin on several occasions, but in view of the State’s responses to appellants’ discovery motions, there was nothing provided to alert them to a possible out-of-court identification. We believe appellants had a right to rely on their earlier discovery motions. We do not believe this to be a case of a defendant in a criminal case relying on discovery as a total substitute for his own investigation, which is impermissible. Henry v. State, 278 Ark. 478, 647 S.W.2d 419, cert. denied, 104 S.Ct. 121 (1983).
At this stage of the proceedings, the following alternatives were available within the discretion of the court: (1) grant appellants’ motion for a continuance so they could obtain and inspect the evidence; (2) suppress the identification testimony or, (3) grant a mistrial. The fact that the trial court did suppress any further reference to the alleged out-of-court identification did not cure the problem. Witness Martin had already testified under oath to the out-of-court identification. Thus, pnly two of the three alternatives were available to the trial court. We do not believe the court abused its discretion in not granting a mistrial as a mistrial in an extreme remedy which should only be granted as a last resort when the error is so prejudicial that justice could not have been served by continuing the trial. Pruitt v. State, 8 Ark. App. 350, 652 S.W.2d 51 (1983). We believe the first alternative, granting a continuance, would have been the more prudent choice as the trial could possibly have resumed after a short delay. A continuance need only be granted upon a showing of good cause. A.R.Cr.P. Rule 27.3. The burden is upon the appellants to demonstrate that the trial court abused its discretion in denying a continuance. Walls v. State, 8 Ark. App. 315, 652 S.W.2d 37 (1983). Our review of the proceedings in the instant case leads us to the conclusion that appellants have met their burden and the trial court abused its discretion. We reverse and remand for a new trial on this point.
IV.
THE TRIAL COURT ERRED IN REFUSING TO GRANT A MISTRIAL WHEN THE PROSECUTOR DELIBERATELY ARGUED OUTSIDE THE RECORD ON THREE OCCASIONS.
Appellants allege reversible error in the trial court’s rulings on three objections made by them during the prosecuting attorney’s closing argument. It has been uniformly held that in cases of denial of a motion for mistrial based upon prosecutorial improprieties, we will not reverse the judgment of the trial court in the absence of an abuse of the wide latitude of discretion vested in the trial judge. Brown & Bettis v. State, 259 Ark. 464, 534 S.W.2d 207 (1976). We have always recognized and given due regard to the trial judge’s considerable degree of discretion in controlling and supervising arguments of attorneys at jury trials. McGill v. State, 253 Ark. 1045, 490 S.W.2d 449 (1973).
The first objection in the case at bar was in reference to comment by the prosecutor on the testimony of the president of Capital Chemical and Supply Company that appellant Sandra Harris ordered the platinum oxide through his company. The trial court agreed with appellants that this argument was outside the record and in fact opposite to the witness’s testimony, but refused to grant a mistrial. Next, appellants objected to the prosecutor’s comment on testimony by the chemist. The prosecutor started to show the jury State’s Exhibit No. Seven, which was a box top with a chemical formula written on it, when appellants objected and correctly pointed out that the exhibit had never been introduced into evidence. Again, the court denied appellants’ motion for mistrial. In each of these two instances, the trial court promptly admonished the jury to the effect that any statement not borne out by the evidence, made by the attorneys, was to be disregarded and that the jury was to disregard any testimony in regard to State’s Exhibit No. 7. In addition, the jury had been instructed with the standard instruction AM Cl 101(e) that “closing arguments of the attorneys are not evidence but are made only to help in understanding the evidence and applicable law.” Instructions and admonitions to the jury generally suffice except where the comments of counsel are patently inflammatory and prejudicial or where improper tactics are so repetitious that fairness is overcome. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). We believe the above was sufficient to cure any possible prejudice to appellants and the trial court properly denied their motions for mistrial.
Finally, the court overruled appellants’ objection when the prosecutor argued to the jury on the issue of punishment to the effect that he had seen 16, 17, 18 and 19-year old persons sent to prison for using less serious drugs than those involved in this case. These remarks regarding punishment were made on facts outside the record which could have caused the jury to be persuaded to punish appellants more severely and was thus prejudicial and highly improper. A mistrial should have been granted. See Mays v. State, 264 Ark. 553, 571 S.W.2d 429 (1978) and Long v. State, 260 Ark. 417, 542 S.W2d 742 (1976). As stated in Mays, supra, . .the desire to obtain a conviction is never proper inducement for a prosecutor to include in his closing argument anything except the evidence in the case and legitimately deducible conclusions that may be made from the law applicable to a case.” We reverse and remand for a new trial on appellants’ third objection to the prosecutor’s remarks during closing argument.
V.
THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE CONTENTS OF THE PLYMOUTH VAN OBTAINED THROUGH AN ILLEGAL SEARCH.
The evidence presented by the State at the suppression hearing reveals that Floyd Peterson, owner of a self-storage garage, became concerned over a chemical odor emanating from one of the rented compartments in his garage. His wife testified that she had rented the unit to an Allen Parson; that the contract provided that no combustibles should be stored and that property would be considered abandoned and disposed of after sixty days of unpaid rental; and that the rent on this unit was six months past due. Peterson called the police and requested assistance in investigating the odor. After cutting the lock, Peterson consented to Officer Sullivan entering the unit and the van located inside which was the apparent source of the odor.
The record reveals that the officer had previously worked with chemicals and recognized the odor as coming from a combustible chemical. When he entered the van, he observed an assortment of glassware and chemicals which had spilled out or rusted through their containers. Officers Sullivan and Sanderlin both testified that they were concerned over the possibility of an explosion or fire.
Rule 11.2 of the Arkansas Rules of Criminal Procedure provides:
Persons From Whom Effective Consent May be Obtained.
The consent justifying a search and seizure can only be given, in the case of:
* * *
(b) search of a vehicle, by a person registered as its owner or in apparent control of its operation or contents at the time consent is given; and
(c) search of premises, by a person who, by ownership or otherwise, is apparently entitled to give or withhold consent.
Peterson was the owner of the premises and requested the search. By the terms of the rental contract, the van was abandoned property which was under Peterson’s control. Other facts support a finding that the van was abandoned and that appellants had no expectation of privacy in it as follows: no rent had ever been paid following the initial contract; no address or telephone number was listed at which the Petersons could contact the presumed owner; and the license tag had been removed from the van before it was stored. The evidence is uncontroverted that Peterson had the authority to consent to the search. See Spears v. State, 270 Ark. 331, 605 S.W.2d 9 (1980). We find no error on this point for reversal.
Reversed and remanded.
Cooper and Cracraft, JJ., agree.
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Melvin Mayfield, Chief Judge.
This is an appeal from a judgment of conviction for delivery of a controlled substance. Appellant was sentenced to eight years imprisonment and a fine of $5000.
The State contended that appellant sold marijuana to two undercover policemen in the presence of a confidential informant who arranged the sale. The alleged informant was not called to testify by the State but after the two policemen had testified and the State had rested, he was called by the defendant and denied that he was an informant. He testified that he did take the policemen to an apartment complex to help them find some marijuana, but he did not know they were policemen and was not working with them. He also admitted that he found a man who sold some marijuana to them and that he and the appellant were present when the sale was made, but he denied the appellant made the sale, received any money, or had any involvement other than that of a mere bystander.
On rebuttal the State called an investigator for the prosecuting attorney’s office who testified that before the trial started that day the alleged informant came into his office, said he had been threatened, and expressed a fear for his life. The investigator testified that the alleged informant gave the names of two people who had threatened him but neither was the defendant. The investigator also said that when the alleged informant was told the defendant’s attorney was just outside the door in the prosecuting attorney’s waiting room he jumped up and “started hollering that he was dead” and the investigator said he seemed “scared to death.” The appellant contends that this testimony was hearsay and improper impeachment; that it concerned actions of the alleged informant and did not contradict his testimony; and that it was not admissible because it concerned a collateral issue.
In our opinion the trial court did not err in allowing this evidence to be introduced. In the first place, it was admissible for the purpose of impeachment. In United States v.Briggs, 457 F. 2d 908 (2nd Cir. 1972), the court said:
There is equally little merit in Brigg’s objection to the court’s allowing an agent to testify that, despite his denials on cross-examination, Jeffries had said on two occasions that Briggs had threatened his life if he did not testify in an exculpatory manner. Whether the receipt of such threats be characterized as showing “bias,” or “corruption,” or “interest,” their relevance as impeaching Jeffries’ testimony is too apparent to require argument.
In Goodwin v. State, 263 Ark. 856, 568 S.W. 2d 3 (1978), our supreme court quoted from an earlier case that “The bias of a witness is not a collateral matter” and that “pecuniary interest, personal affection or hostility, sympathy or animosity, a quarrel or prejudice, may always be shown to discredit a witness.”
So the investigator’s testimony that the alleged informant said he had been threatened and feared for his life was admissible for impeachment purposes and this was not a collateral matter.
Insofar as the testimony of the investigator concerned “actions,” it is clear that a witness’ conduct as well as his expressions may be shown to impeach credibility. Mo. Pac. Transportation Co. v. Norwood, 192 Ark. 170, 90 S.W. 2d 480 (1936); McCormick, Evidence § 40 (2d ed. 1972); 3A Wigmore, Evidence § 950 (Chadbourn rev. 1970). The investigator’s statement that the alleged informant seemed “scared to death” is certainly in harmony with the statements “he looked to me like he was in a kind of semiconscious condition” held admissible in Jewel Tea Company, Inc. v. McCrary, 197 Ark. 294, 122 S.W. 2d 534 (1938) and “she didn’t look too well” held admissible in Missouri Pac. Railroad Co. v.House, 205 Ark. 211, 168 S.W. 2d 421 (1943). These “opinions” are admissible as shorthand renditions or collective statements ©f the facts observed. See McCormick, supra, § 11 at 25 n.31. 2 S. Gard, Jones on Evidence § 14.2 at 581 n.9 (6th ed. 1972). And it has been held that evidence of fear may be presented “as a means of demonstrating a witness’ bias, thereby tending to discredit him.” United States v. Cerone, 452 F. 2d 274 (7th Cir. 1971), cert. denied, 405 U.S. 964, 92 S. Ct. 1168, 31 L. Ed. 2d 240 (1972).
As to the hearsay contention, the traditional view with regard to inconsistent statements is that even if the previous statement is hearsay and inadmissible as evidence of the facts stated it is nevertheless admissible for the limited purpose of impeaching the witness. McCormick, supra, § 34; United States v. Palacios, 556 F. 2d 1359 (5th Cir. 1977); Comer v. State, 222 Ark. 156, 257 S.W. 2d 564 (1953). And under that view the court is required, when requested, to limit the statement to the issue of credibility and to so instruct the jury if there is one. Southwestern Bell Tel. Co. v. McAdoo, 178 Ark. 111, 10 S.W. 2d 503 (1928). See Arkansas Model Criminal Instruction 202. Under the conditions of Rule 801 of the Rules of Evidence a prior statement is not hearsay and may be considered as substantive evidence in a civil case and this is also true in a criminal case if the statement was made under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. But with regard to bias, the hearsay problem is generally disregarded either on the theory that the testimony comes under the state of mind hearsay exception of evidence rule 803(3), 3 J. Weinstein & M. Burger, Weinstein’s Evidence § 607 [03] n. 14 (1978), or on the theory that it is offered to discredit a witness, not to prove the facts stated, Smith v. United States, 283 F. 2d 16, 87 ALR 2d 394 (6th Cir. 1960), cert. denied, 365 U.S. 847, 5 L. Ed. 2d 811, 81 S. Ct. 808 (1961). However, as pointed out by Weinstein, supra, § 607 [03], even though the courts are very liberal in accepting testimony to show bias there are some limitations in this regard. One method available to control the extent of such proof is Rule 105 of the Uniform Rules of Evidence. That rule provides that when evidence admissible for one purpose but not for another is admitted, the court, upon request, shall restrict it to its proper scope and instruct the jury accordingly. In the case at bar, however, no request was made to limit the investigator’s testimony and long before the Uniform Rules of Evidence our court held that such request was necessary. Mo. Pac. Transportation Co. v. Norwood, supra.
Also prior to the Uniform Rules of Evidence we had a statute which provided that evidence could not be introduced to show that a witness had made a statement inconsistent with his testimony in court until he had been asked about the previous statement and allowed to explain it. See Harris Const. Co., Inc. v. Powers, 262 Ark. 96, 554 S.W. 2d 332 (1977). The legislative act which adopted the Uniform Rules repealed that statute and the matter is now controlled by rule 613 which differs in some respects from the former statute. Baysinger v. State, 261 Ark. 605, 550 S.W. 2d 445 (1977). Also see Field, A Code of Evidence for Arkansas, 29 Ark. L. Rev. 1 (1975). But the rule does not apply (and neither did the statute) to evidence offered to show bias except as bias might appear from an inconsistent statement. Weinstein, supra, § 607 [03], says there is disagreement among the courts about the matter and three different approaches are used: (1) no foundation required; (2) a foundation is required where the alleged evidence of bias consists of a statement made by the witness; and (3) the rule requiring a foundation is extended to cover cases where the evidence of bias takes the form of conduct. The matter is also discussed in McCormick, supra, § 40. In Goodwin v. State, supra, which was decided before the Uniform Rules of Evidence were adopted, the Arkansas Supreme Court said “it seems that under these circumstances it was necessary that Roberts first deny the statements which would indicate bias” but the court held that a sufficient foundation had been laid.
In the instant case the alleged informant was called by the defense and testified on direct that he had not been threatened but said he had heard a rumor that he better do what’s right. On cross-examination he said the rumor was that he would be in a lot of trouble if he didn’t tell the truth. After the investigator had testified on rebuttal the alleged informant was recalled by the defense and testified in surrebuttal that he was not apprehensive about testifying when he was in the prosecutor’s office, that he was not afraid to testify, and that he had not jumped up or down. There was no objection as to a lack of foundation for the investigator’s testimony and the alleged informant was certainly “afforded an opportunity to explain or deny” any testimony given by the investigator and that meets the requirement of Uniform Rule of Evidence 613.
The only other argument for reversal concerns the closing argument of the prosecuting attorney. The appellant recognizes the discretion of the trial judge with regard to closing arguments but contends that the argument here was such as to cause the verdict to be rendered upon passion and prejudice.
Appellant’s abstract contains only one objection to the argument. This occurred when the prosecuting attorney told the jury that the confidential informant “came today to testify not because we subpoenaed him, but because somehow the defense found out who the confidential informant was, and then the man started receiving threats on his life.” The objection was “He’s arguing matters that are not in evidence.” The record discloses that when the investigator for the prosecuting attorney’s office was on the stand he was asked by defense counsel if his office had subpoenaed the alleged informant. The investigator said that he was not sure about the matter. The prosecuting attorney then stated in open court that the man had not been subpoenaed by the state. So the statement that the confidential informant came to court without being subpoenaed by the state was not outside of record. The rest of the statement objected to was argument based upon evidence in the record.
Although no objection was made, we comment on one other portion of the argument. It is contended that the prosecuting attorney characterized the defendant as a dope pusher and criminal who sells dope to little children. We do not think the record will support this interpretation. The prosecuting attorney did say that police officers who do undercover work have a difficult job, they have no choice of people with whom they deal, they have to deal with criminals, people who smoke dope and sell it to children on the street, but that they do their jobs to the best of their ability. Without an objection, we cannot find this argument to be error when we consider that the state’s case was based upon testimony of an undercover officer who was directly contradicted by his alleged informant and by the defendant and his witnesses.
In our view the record does' not support the appellant’s contention that the prosecuting attorney’s argument caused the jury’s verdict to be based upon passion and prejudice. We find no abuse of the trial court’s discretion in controlling and supervising the arguments of counsel.
The judgment is affirmed.
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Lawson Cloninger, Judge.
Appellants Myrna L. Black and Sammy A. Black, prosecute this appeal from a decision of the trial court that appellants had failed to establish title by adverse possession to .53 acres of land owned by appellee, Westwood Properties, Inc. Appellee was granted judgment on its complaint in ejectment filed for the possession of the tract in dispute, an irregularly shaped strip lying immediately south of property owned by appellants.
The only issue on appeal is whether the trial court’s finding is clearly against the preponderance of the evidence. We affirm the decision of the trial court.
Adam Dorn, the common predecessor in title of appellants and appellee, bought the property now owned by appellants and appellee in 1949; and soon thereafter put in a west to east country road on land now owned by appellee in order to give Ship, Dorn’s neighbor on the east, an ingress and egress road. A short time later Dorn put up a fence on the north side of the private road in order to keep Ship’s livestock off of his cultivated land. This old fence is the line to which appellants claim, and appellants replaced the old fence with a new one when they acquired their property. Neither the old fence nor the new fence fully enclosed the disputed area. The last persons before appellants to live on appellants’ property, the Millwoods, had run livestock on the land to the old fence, and the Millwoods moved away in 1969. Appellants bought their property on August 20, 1970, and at that time it was grown up. and uncared for. Appellants cleared up the land after their purchase, planted trees, mowed the grass, maintained the property to the fence line, and they have continuously cultivated a garden in a portion of the disputed area. Appellant Myrna Black stated that she knew their south boundary was a straight line on the plat, and that the fence was curved. The complaint here was filed in the trial court by appellee for possession of the .53 acre tract on June 23, 1977.
Shelton Whitlow owned appellee’s land from I960 to 1977, and testified that he walked the perimeters of the land several times. He did not know the fence was there since it was grown up in brush and vines. He saw appellants every week but no one told him the appellants were claiming part of his land.
The chancellor found that the country road and fence were not intended by Dorn to establish a boundary line, but simply provided a permissive use by Ship and his successor in title. The chancellor further found that appellants had failed to sustain their burden of proof that either they or their predecessors continuously held the disputed area openly and adversely for seven years. While a decision of a chancery court is reviewed de novo on appeal, we will not reverse as to the facts unless the chancellor’s finding is clearly erroneous, or clearly against the preponderance of the evidence. Gautrau v. Jan’s Realty, 271 Ark. 394, 609 S.W. 2d 107 (Ark. App. 1980). Arkansas Rules of Civil Procedure, Rule 52.
In order for adverse possession to ripen into ownership, possession for seven years must be actual, open, notorious, continuous, hostile, exclusive, and it must be maintained with an intent to hold against the true owner. The owner of the paper title must have knowledge that another is holding his property, or there must be such physical evidence as would indicate to him, if he visits the premises and is a person of ordinary prudence, that a claim of ownership is being asserted. Moore v. Anthony Jones Lumber Company, 252 Ark. 883, 481 S.W. 2d 707 (1972). Possession for the statutory period must be continuous. Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629 (1973).
The possession of appellants contained some of the elements of adverse possession, but they have failed to prove all of the elements by a preponderance of the evidence; their possession was actual, open, hostile, exclusive, and they intended to hold against the true owner. However, they have failed to show that their adverse holding was known to the owner, or that their acts were such as would reasonably indicate that appellee should have known their intentions. They knew the owner, yet their intent was never communicated to him, and there is nothing in the record to indicate that others in the community were aware of appellants’ holding. There was testimony that the owner walked the perimeters of his property and never saw the fence or knew of the adverse holding, and there is evidence that appellants knew or suspected that their property line did not go all the way to the fence. As it was stated in Barclay v. Tussey, 259 Ark. 238, 532 S.W. 2d 193(1976), “... the doctrine of adverse possession is intended to protect one who honestly enters into possession of land in the belief that the land is his own
There is an additional reason, not remarked upon by the chancellor, why appellants cannot prevail. Their possession was not continuous for the statutory seven year period. The early case of Brown v. Hanaver, 48 Ark. 277, 3 S.W. 27 (1886) held that when actual possession of land by an adverse claimant ceases, the constructive possession of the legal owners revives and a renewed adverse possession will not receive aid from or be tacked to a former possession to piece out the time allotted by statute for acquiring title by adverse possession.
Appellants in the instant case cannot be permitted to add their possession to that of their predecessors in title, the Millwoods. The Millwoods moved away from the property some time in 1969; appellants did not buy the property until August 20, 1970, and the land was grown up in brush and vines when appellants first saw it. The ejectment action was filed by appellee on June 23, 1977. Therefore, the holding by appellants was only for six years and ten months.
The decision of the trial court is affirmed.
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Melvin Mayfield, Chief Judge.
The appellant in this case had been “laid off’ from work five or six weeks and was receiving unemployment benefits. His employer called him back to work for a week during which he earned $549.69 but reported to the Employment Security Division that he was unemployed and had no earnings during that week. As a result, he received benefits in the amount of $100.00 to which he was not entitled.
The Employment Security Division determined that appellant received benefits because he willfully made a false statement or misrepresentation of a material fact, that he was liable to repay the $100.00 received, and was disqualified from receiving benefits for fifteen (15) weeks.
The appellant repaid the $100.00 but appealed the disqualification. Both the Appeal Tribunal and the Board of Review held against him.
The appellant testified that he did not intend to receive benefits to which he was not entitled. He said he had not been paid for the work he did during the week involved and therefore believed he was entitled to draw benefits for that week. He also testified that when he started drawing benefits he did not make a claim for the first week he was off work because he received a check that week for the work he had done the week before.
The Arkansas Employment Security law, enacted by the General Assembly of the state, provides that a claimant may appeal from a decision of the Board of Review to the Court of Appeals "Where the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.”
The Arkansas Supreme Court and the Arkansas Court of Appeals have both held that findings of fact made by the board should be affirmed if supported by substantial evidence. Terry Dairy Products Co., Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1955); Deatherage v. Daniels, 267 Ark. 683, 590 S.W. 2d 62 (Ark. App. 1979).
The appellant worked a week and earned $549.69 but he filled out his card for that week saying he did not work and that he had no earnings.
Whether this was done willfully in order to receive unemployment benefits is a question of fact. This court does not know any more about that than the Board of Review knows and the law provides that the Board is to make the factual determination. It is the duty of this court to affirm that determination if supported by substantial evidence and the Supreme Court has said:
Even though there is evidence upon which the Board of Review might have reached a different result, the scope of judicial review is limited to a determination whether the board could reasonably reach its results upon the evidence before it and a reviewing court is not privileged to substitute its findings for those of the board even though the court might reach a different conclusion if it had made the original determination upon the same evidence considered by the board. (Citations omitted.) Even if the evidence is undisputed, the drawing of inferences is for the board, not the courts. (Citation omitted.)
Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954.(1978).
Affirmed.
Cracraft, Cooper and Cloninger, JJ., dissent.
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George K. Cracraft, Judge.
The appellants, Harrison Furniture and American Mutual Insurance Company, bring this appeal from an award of the Workers’ Compensation Commission contending that the award and finding of the Commission that the appellee, Renard R. Chrobak, was totally disabled is not supported by substantial evidence, and that the claimant is estopped to claim such disability by his conduct. We find no merit to these contentions. However, the appellants further assign as error the refusal of the Commission to apportion the disability between it, the last employer, and the Second Injury Fund, for disability resulting from a prior injury. We agree and remand the case for further proceedings.
Appellee has been afflicted since infancy with spastic left hemiparesis which manifested itself in a withered left hand, arm and leg. Both of his left extremities were smaller than his right and he walked with a limp. His left arm could not be rotated and he had little or no use of that hand. Despite this impairment he was gainfully employed by appellant until October II, 1979, when he sustained a compensable injury in which one of his right fingers was severed and two others were so severely damaged that the right hand was rendered essentially functionless. Prior to that time he had referred to his right hand as his “bread and butter hand” and stated that before his second injury he could do as much with his one hand as most men could do with two. On evidence hereinafter discussed the Commission found that the appellee was permanently and totally disabled and that appellants were solely liable for all benefits, refusing to apportion the disability attributable to his prior impairment to the Second Injury Fund.
I.
The appellants first contend that the Commission’s finding that the appellee was permanently and totally disabled is not supported by substantial evidence. In support of this position the appellants argue that the evidence of two medical experts indicated that the anatomical disability was less than total. While conceding that Glass v. Eden, 233 Ark. 286, 346 S.W. 2d 685 (1961), authorizes consideration of wage loss factors as well as medical testimony in total disability determinations, appellants argue that there is insufficient wage loss evidence to support the finding of the Commission. We do not agree.
On appeal from Workers’ Compensation Commission the review by the Court of Appeals is limited to determining whether the decision is supported by substantial evidence, and in so determining, the court is required to view the evidence in the light most favorable to the decision of the Commission. Even where the evidence would support a conclusion different from that reached by the Commission the court will affirm the Commission unless it determines that reasonable minds could not reach that conclusion. Purdy Livingston, 262 Ark. 575, 559 S.W. 2d 24 (1977).
When the evidence is reviewed in that light we find that there was substantial evidence to support the findings of the Commission. The medical report of Dr. Garland indicates that there is “not a single activity requiring the use of the upper extremities” that appellee would currently be capable of performing. He found both the right and left hand to be essentially functionless and that neither would improve. Neither of the other doctors who testified appears to have taken into consideration the effect of his pre-existing disability of the left hand in making his determination of lesser anatomical disability and made findings only with respect to the second injury.
There was also testimony from the appellee and his wife that he could not now tie his shoes, dress himself, pick up things or do any type of work requiring hand or power tools or the lifting of heavy objects. It was his further testimony that he could not operate office machinery and had considerable difficulty in writing. He further testified as to his unsuccessful efforts to obtain employment at some twenty-five different places in the area in which he resided. He was unable to receive help from the Arkansas Rehabilitative Service. We cannot say that reasonable minds could not reach the conclusion that he was in fact totally disabled, despite the fact that he did return and attempt to work for the employer for a short time after the second injury.
II.
Prior to the hearing before the Workers’ Compensation Commission the appellee had been seeking employment and registered with the Employment Security Division, executing forms prepared by that agency which indicated that he was available, willing and able to work. There was evidence that he received benefits under the Employment Security Act. The appellants contend that as he drew unemployment benefits he should be estopped to now claim that he was and is permanently and totally disabled. While it does not appear that this issue was raised before the Commission and ought not be considered by us on appeal, we note that appellants have cited us no authority in support of the argument that registration for employment by an injured worker bars the right to benefits under the Workers’ Compensation Act.
Both parties concede that Ark. Stat. Ann. § 81-1310 (g) (Supp. 1981), was not in effect at the time of claimant’s injury and could not apply to his case. This section, which became effective January 1, 1981, would provide that no compensation for disability shall be payable to an injured employee under the Workers’ Compensation Act with respect to any week or weeks for which he had been receiving benefits under the Employment Security Act or the unemployment insurance laws of any other state. Prior to this enactment the Workers’ Compensation Act contained no such restriction nor have our courts so held.
III.
The appellants finally urge that the Commission erred in refusing to apportion the disability between the employer and the Second Injury Fund under Ark. Stat. Ann. § 81-1313 (2) (Repl. 1976). They maintain that the Commission erred in holding that the appellants were solely liable and that that portion of his disability attributable to his congenital impairment should have been apportioned against the Second Injury Fund. We agree.
In making the award against the appellants the commission found that appellee was in fact totally disabled, but that apportionment under Ark. Stat. Ann. § 81-1313(f)(2)(ii) was not authorized because appellee’s pre-existing disability resulted from a congenital abnormality and was not work related and did not arise out of and in the course of his employment. We agree with appellants’ position that the Commission erred in so holding.
The question of whether apportionment was dependent upon the pre-existing disability being work related was squarely determined in Chicago Mill & Lumber Co. v. Greer, 270 Ark. 672, 606 S.W. 2d 72. In that case the claimant had a pre-existing amputation of his left leg. His amputation was not the result of a compensable injury. While working for Chicago Mill & Lumber Company he suffered an injury to his right leg which resulted in total disability. It was also expressly found by the Commission that the preexisting amputation had independently caused disability prior to the second injury. The Court of Appeals affirmed the ruling of the Commission that the disability was not apportionable because the first injury was not a compen-sable one. In reversing the Court of Appeals, the Supreme Court said:
Neither can we agree with the respondent Fund that the first injury must be an injury that would have been compensable under the act. It cites no cases so holding. However, it urges this is the interpretation compelled by the use of the words “disabilities” and “injuries” in the statute. Larson has discussed this matter in § 59-32:
Another attempt at narrowing the range of prior injuries covered has been the contention that only cases involving prior compensable disabilities were affected. This contention was based on a rather mechanical interpretation, arrived at by lifting the words ‘prior disability’ out of the second injury statute and applying to them the definition of ‘disability’ which appears elsewhere in the act. The Supreme Court of the United States rejected this artificial and technical reading of the provision, in the light of the well-known general purpose of the act, observing that ‘From the attitude of experts in the field, one would not expect Congress to distinguish between two types of handicapped workers.’
However, the prior impairment, although not actually a compensable disability, must have been of a physical quality capable of supporting an award if the other elements of compensability were present.
No contention is made that respondent Greer does not meet these requirements.
Nor does the fact that appellee’s pre-existing infirmity resulted from a congenital abnormality affect the result. Unlike the congenital defects in Wilson Hargett Construction Co. v. Holmes, 235 Ark. 698, 361 S.W. 2d 634 (1962); C. Finkbeiner, Inc. v. Flowers, 251 Ark. 241, 471 S.W. 2d 772 (1971); and McDaniel v. Hilyard Drilling Company, 233 Ark. 142, 343 S.W. 2d 416 (1961), this appellee’s disease was not latent. In making that distinction all our cases rely upon Larson’s work on the subject. In Larson’s Workmen’s Compensation Law, vol. 2 § 59-32(c), he quotes from Subsequent Injury Fund v. Industrial Accident Commission, 56 Cal. 2d 842, 366 P. 2d 496 (1961):
[T]he injury need not be reflected in actual disability in the form of loss of earnings ... but if it is not, it should at least be of the kind which could ground an award of permanent partial disability.
He then concludes:
We have here a close parallel to the distinction observed in apportionment cases between a prior condition not in itself disabling but capable of being “lighted up” into actual disability by the subsequent injury, which should not support invplvement of the Second Injury Fund, and a prior condition competent to produce independently some degree of disability which is a proper case for Second Injury Fund liability. (Emphasis added)
This appellee’s condition had “lighted up” and was independently causing some degree of disability long before the second injury.
From the cases it is clear that apportionment does not apply unless the prior impairment was independently causing disability prior to the second injury and continues to operate as such after the accident. Wilson Hargett Construction Co. v. Holmes, supra; C. Finkbeiner, Inc. v. Flowers, supra; McDaniel v. Hilyard Drilling Company, supra. It is also clear from Greer that the fact that the prior disability was not job related and did not arise out of or in the course of a covered employment does not affect the duty to apportion. In all cases arising after January 1, 1981, this result will be dictated by Ark. Stat. Ann. § 81-1313 (i) (Repl. 1976) (Supp. 1981) rather than the case law as herein declared. All parties to this action concede that as this injury resulted prior to that effective date, the amendment does not apply to this case.
We are therefore of the view that the appellants employer-carrier are liable only for that portion of the total disability attributable to appellee’s injury while in their employ and that the Second Injury Fund is liable for all additional compensation provided by the statute. The case will be remanded to the Commission with directions to make that determination and order payment accordingly.
In making its award the Commission relied heavily upon language contained in the Court of Appeals opinion in Marshall v. Ouachita Hospital, 269 Ark. 958, 601 S.W. 2d 901 (1980). In view of the rather peculiar circumstances surrounding the case we feel that our refusal to follow Marshall insofar as it may be at variance with the rules announced in Greer requires comment on the history of the cases.
Greer was initially decided by the Court of Appeals on July 2, 1980. The Supreme Court granted a petition for certiorari to review that decision as it was based upon a tie vote in the Court of Appeals. The following week, July 9, 1980, the Court of Appeals handed down its unanimous opinion in Marshall in which it applied the same rule as it had in Greer the week before. The Supreme Court denied certiorari in Marshall, presumably because it was a unanimous decision. The Supreme Court’s opinion reversing the Court of Appeals in Greer was not handed down until October 13, 1980.
As the Supreme Court refused to review Marshall, the decision of the Court of Appeals became final and the cause was remanded to the Commission with directions to deny apportionment. Pursuant to that mandate the Commission entered such an order. On appeal from that order we were asked to again remand the matter to the Commission with directions to follow Greer and order apportionment. This we refused to do in an opinion handed down in Marshall v. Ouachita Hospital, 2 Ark. App. 273, 621 S.W. 2d 7 decided September 9, 1981, assigning as our reason that the matters decided in the July 1980 opinion were the law of the case and should be followed even if we might then feel that the July 1980 opinion was in error. As stated in St. Louis S.W. Railway v. Jackson, 246 Ark. 268, 438 S.W. 2d 41, the law of the case rule may in some cases be a harsh one, but when weighed on the scales of justice the confusion and uncertainty which would result without use of the doctrine has been found to outweigh the possibilities of harshness.
In the case now before the court we are not encumbered by that rule. We are, however, bound to follow and apply the law as declared by the Supreme Court. We are unable to reconcile the language from Marshall, on which the Commission relied, with the declaration of the Supreme Court in Greer, and decline to follow Marshall.
269 Ark. 895, 601 S.W. 2d 583.
269 Ark. 958, 601 S.W. 2d 901.
270 Ark. 672, 606 S.W. 2d 72.
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George K. Cracraft, Judge.
This is a sequel to Marshall v. Ouachita Hospital, 269 Ark. 958, 601 S.W. 2d 901, decided by the Court of Appeals on July 9, 1980. The present appeal poses the question of whether the Court of Appeals should apply the same rule of law of the case as that consistently adhered to by the Supreme Court. In the original opinion the Court of Appeals reversed an award of the Workers’ Compensation Commission apportioning disability between the employer and second injury fund under Ark. Stat. Ann. § 81-1313(f)(2)(ii), holding that section of the act to be inapplicable to the facts. The Supreme Court thereafter denied a petition to rehear and same was remanded to the Commission with directions to enter an award against the employer without apportionment.
On October 13, 1980, before action was taken by the Commission on the mandate from this court, the Supreme Court decided the case of Chicago Mill & Lumber Co. v. Greer, 269 Ark. 895, 606 S.W. 2d 72, in which it found § 81-1313(f)( 2 )(ii) applicable in a factual situation which appellant contends was similar to that in Marshall. The appellant argued before the Commission that as the Greer decision apparently overruled Marshall, the Supreme Court decision rather than our mandate should control. The Commission in its order recited that it had given due consideration to Greer and entered its order in accordance with the mandate. No additional proceedings were had before the Commission, and this appeal is presented on the same facts as were before the court initially. By this appeal appellant contends the Court of Appeals should rule that it is not required to apply the same rule of the case as that of the Supreme Court and as the two cases are inconsistent, should again remand the case for entry of an order apportioning the disability. Appellee contends that the two cases are distinguishable but, in any event, the prior opinion of this court in this case is the law of the case and binding on this court pursuant to the same rules as the Supreme Court has adopted as to its own opinion.
The Supreme Court has long adhered to the rule that when a case has been decided by it, and after remand returned to it on a second appeal, nothing is before it for adjudiciation except those proceedings had subsequent to its mandate. The Supreme Court has so held in a line of cases extending from Fortenberry v. Frazier, 5 Ark. 200 (1842), through International Harvester Company v. Burks Motors, Inc., 252 Ark. 816, 481 S.W. 2d 351 (1972). In Burks it was again stated:
Matters decided by us on the Burks appeal and on the petitions for rehearing are the law of the case and govern our action on this appeal to that extent, even if we were now inclined to say we were wrong in those decisions.
This rule is based on the fundamental concept that judgments must at some point become final and departure from that rule would only result in uncertainty, confusion and “incalcuable mischief.” Fortenberry v. Frazier, supra; St. Louis S.W. Railway Co. v. Jackson, 246 Ark. 268, 438 S.W. 2d 41 (1969).
In support of his position that this court should not be bound by that law of the case rule, appellant cites cases from federal and sister state intermediate courts whose decisions are all subject to review by higher courts. These courts have reasoned that as their decisions are not final and the law of the case of the higher court is not the same as that of the intermediate court, they should reverse themselves on a second appeal where it appears that they may have erred on the first. That reasoning cannot apply to the Arkansas Court of Appeals and to hold otherwise would make of this court what the Supreme Court has steadfastly declared was not intended. In Daniels, Director v. Bennett, 272 Ark. 275, 613 S.W. 2d 591 (1981), the Supreme Court stated:
In considering whether to review decisions of Court of Appeals, we shall steadfastly adhere to the position we unanimously adopted in Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979). That is, we do not regard the Court of Appeals as a purely intermediate court, “becoming merely an expensive and time-consuming level in the appellate structure.” To the contrary, our goal is to assign separate areas of jurisdiction to each court. “Ideally,” as we said in Moose, “each court will be in effect a court of last resort, with its decisions having a desirable finality. Ideally, it will be immaterial to the litigant whether his particular case goes to one court or the other. In either event both parties will have the benefit of an appellate review by a multi-judge court composed of judges having exactly the same qualifications. ... Our goal is to provide each litigant with the opportunity for one appeal, not two.” (Emphasis added)
In Moose the court stated:
Last May, after the General Assembly had created the new Court of Appeals, we further implemented Amendment 58 by adopting and publishing Rule 29 of the Rules of the Supreme Court and Court of Appeals. That rule tentatively defines both the separate jurisdictions of the two courts and the narrow grounds on which a decision of the Court of Appeals will be reviewed by the Supreme Court. Fundamentally, Rule 29 embraces four basic points:
1. Certain cases, set forth in Section 1 of the rule, should be appealed to the Supreme Court in the first instance.
2. All other cases should be appealed to the Court of Appeals.
3. The Court of Appeals should transfer to the Supreme Court (a) any case that should have gone to the Supreme Court in the first instance and (b) any case that is found to involve an issue of significant public interest or a legal principle of major importance.
4. The Supreme Court may grant certiorari to review any case that should have come to the Supreme Court originally, that should have been transferred to the Supreme Court by the Court of Appeals, or that was decided in the Court of Appeals by a tie vote. (Otherwise the decision of the Court of Appeals will not be reviewed.)
In view of this declaration of our function within the judicial structure of this state we hold that the rule regarding “the law of the case” applied by the Supreme Court to its decisions should be applied in this court to cases before it on second appeal, even though our decisions are not entirely immune from further review in those situations set out in Moose. There is, therefore, nothing before us to review except the proceedings subsequent to the mandate. It is unnecessary for us to make a determination as to whether Greer overruled Marshall or is distinguishable from it. Under the rule we here announce we would apply the prior decision as the law of the case even if we were inclined to now say that the preceding Court of Appeals was in error in that opinion.
We affirm the award of the Commission entered on the mandate from this court.
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Donald L. Corbin, Judge.
This is an appeal from denial of unemployment insurance benefits. Appellant filed his claim for unemployment benefits on May 2, 1980. The Appeal Tribunal, on June 20, 1980, and the Board of Review, on July 29, 1980, affirmed the agency’s denial of benefits.
Appellant is retired and receives Social Security benefits. After retirement and while receiving Social Security benefits, appellant was employed and then terminated from employment under conditions rendering him eligible to receive unemployment insurance benefits. He was denied benefits based upon Section 5 (f) (4) (B) of the Arkansas Employment Security Law [Ark. Stat. Ann. § 81-1106 (f) (4) (B) (Supp. 1979)] which provides in part:
For any week of unemployment which begins after March 31, 1980, any governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment received with respect to such week and which is based on the previous work of any individual claiming benefits; provided, that the amount of unemployment benefits payable to such individual for such week shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week.
The sole issue before this court is whether, as a matter of law, the reduction of claimant’s unemployment insurance benefits mandated by Section 5 (f) (4) (B) includes retirement benefits received from the Social Security Administration.
On October 20, 1976, Pub. L. 94-566 was enacted by Congress. This Public Law, known as the Unemployment Compensation Amendments of 1976, mandated that states make a large number of changes to their law in order to comply with the Federal Unemployment Tax Act and the Social Security Act provisions for certification. (26 U.S.C.A. §§ 3302, 3303, 3304 and 42 U.S.C.A. § 503.) Section 314 of Pub. L. 94-566 contained the following provision:
General Rule. — Subsection (a) of section 3304 of the Internal Revenue Code of 1954 (relating to requirements for approval of State unemployment compensation laws) is amended by redesignating paragraph (13) as paragraph (16) and by inserting after paragraph (12) the following new paragraphs:
“(15) the amount of compensation payable to an individual for any week which begins after September 30, 1979, and which begins in a period with respect to which such individual is receiving a governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment which is based on the previous work of such individual shall be reduced (but not below zero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week;”
The legislative intent behind the above quoted language was clearly stated as that of insuring that states “would be required to reduce the unemployment compensation of an individual by the amount of any public or private pension (including social security retirement benefits and railroad retirement benefits) based on the claimant’s previous employment.” U.S. Code Congressional and Administrative News, 94th Congress, Second Session, 1976, “Unemployment Compensation Amendments of 1976,” 90 Stat. 2667, 2680, p. 6040.
Immediately after the passage and approval of Pub. L. 94-566, the Arkansas General Assembly enacted Act 376 of 1977. The intent of Act 376 of 1977 was expressed in Section 21 as follows:
[I]n order to receive the benefits of Federal law and to comply with the mandate of the United States Congress as provided in United States Public Law 94-566. ...
Section 11 of Act 376 of 1977 provides:
Paragraph (4) of subsection (f) of Section 5 of Act 391 of 1941, as amended, the same being Arkansas Statutes 81-1106 (f) (4), is hereby amended to read as follows:
(A)....
(B) For any week of unemployment which begins after September 30, 1979, any governmental or other pension, retirement or retired pay, annuity, or any other similar periodic payment received with respect to such week and which is based on the previous work of any individual claiming benefits; provided, that the amount of unemployment benefits payable to such individual for such week shall be reduced (but not below ¿ero) by an amount equal to the amount of such pension, retirement or retired pay, annuity, or other payment, which is reasonably attributable to such week.
Section 8 of Arkansas Act 492 of 1979 amended Section 5 (f) (4) (B) of the Employment Security Law, as set forth above, by substituting “March 31, 1980” for “September 30, 1979.” This enabled the effective date of Section 5 (f) (4) (B) to conform with the effective date of the parallel provision in the Federal Unemployment Tax Act as established by Section 302 (e) of Pub. L. 95-19.
Clearly, both the federal and state legislative intent was to reduce a claimant’s unemployment insurance benefits if he was receiving Social Security retirement benefits.
Claimant cites Commissioner of Labor v. Renfroe, 253 Ark. 380, 486 S.W. 2d 73 (1972) as additional support for his contention that Social Security retirement benefits are not disqualifying remuneration under Section 5 (f) (4) (B). The Renfroe decision is inapplicable because it was handed down by the Arkansas Supreme Court in 1972 and was based on the language in Section 5 (f) (4) of the Arkansas Employment Security Law that was in effect at that time. As noted, the language was subsequently amended in 1977.
We affirm.
The “Emergency Unemployment Compensation Extension Act of 1977”, Pub. L. 95-19, Section 302(e), amended this paragraph by inserting “March 31, 1979” in lieu of “September 30, 1979.”
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James R. Cooper, Judge.
Appellant was convicted of the crime of incest in violation of Ark. Stat. Ann. § 41-2403 (Repl. 1977) in Johnson County Circuit Court. The jury sentenced him to five years in the Department of Corrections. From that conviction comes this appeal.
As error, appellant argues that the trial court’s reference to the complaining witness as the “victim” was prejudicial, and that the court erred in failing to grant a mistrial in response to appellant’s motion.
The question on appeal is whether the trial court abused his discretion in failing to grant a mistrial under these circumstances. Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979). A mistrial is an extreme remedy which should be utilized only as a last resort. Price v. State, 268 Ark. 535, 597 S.W. 2d 598 (1980). It is clear that the verdict of the jury should not be biased or affected by expressed opinions of the trial court. [Sharp v. State, 51 Ark. 147, 10 S.W. 228 (1889); West v. State, 255 Ark. 668, 501 S.W. 2d 771 (1973)], but we must look at the totality of the circumstances in determining whether or not the remark was so prejudicial that a mistrial should have been granted [Peals v. State, 266 Ark. 410, 584 S.W. 2d 1 (1979); Vassar v. State, 75 Ark. 373, 87 S.W. 635 (1905)]. In this case, the trial court should not have referred to the prosecuting witness as the “victim,” but from a review of the record it is clear that the court was simply attempting to identify her for purposes of questioning the jury panel as to whether or not they were acquainted with her. Certainly, the court could have referred to her as the alleged victim and that would not have been error. Under all the circumstances, we do not view that comment by the trial court as prejudicial even though the term should not have been used. Penton v. State, 194 Ark. 503, 109 S.W. 2d 131 (1937); Newberry v. State, 261 Ark. 648, 551 S.W. 2d 199 (1977).
In addition, we note that no objection was made at the time the court made the reference, and in fact the motion for mistrial came only after the jury had been selected and sworn. During the course of voir dire, the prosecuting attorney referred to the complaining witness as the “victim” and no objection was registered either at that time or in the motion for mistrial. If there was error, it was either waived or was harmless and therefore we affirm.
Affirmed.
Mayfield, C.J., and Glaze and Corbin, JJ., dissent.
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Lawson Cloninger, Judge.
This Workers’ Compensation appeal involves the same issues as did the case of Gerry Swafford v. Tyson Foods, Inc., 2 Ark. App. 343, 621 S.W. 2d 862, which was decided by this Court today, and the two cases were consolidated for consideration by the Court. The decision in the Swafford case relating to the unconstitutionality of Ark. Stat. Ann. §§ 81-1302 (m) and 81-1315 (c) (Repl. 1976) and the statement of the law relating to dependency are adopted in full herein.
In the instant case Verna Russell died as a result of an admittedly compensable injury suffered while she was an employee of appellee International Paper Company. The Arkansas Workers’ Compensation Commission denied death benefits to decedent’s husband, appellant Fred C. Russell, declaring that but for the statutory requirement of incapacity for self-support appellant would be entitled to partial dependency benefits of fifty per cent (50%) of the amount allowable to a dependent spouse.
Appellee concedes that while Ark. Stat. Ann. §§ 81-1302 (m) and 81-1315 (c) are unconstitutional, benefits should be denied appellant because (1) deletion of the unconstitutional portion of the Act is not the proper way to equalize treatment for widows and widowers and (2) appellant failed to establish actual dependency on his wife for support.
Appellee urges that we cannot know the intent of the Legislature; that it can be argued that the Legislature might very well take the approach that the burden of showing incapacity for self-support should be placed upon widows as well as widowers.
In Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979) the Court held unconstitutional the statute allowing maintenance and attorney’s fees to a wife, but not a husband, during the pendency of an action for divorce or alimony. Ark. Stat. Ann. § 34-1210 (Repl. 1962). The appellee wife in Hatcher argued that the Court should simply hold that the law applies to both wife and husband. The Court declined to so hold, stating that it is not the function of the court to legislate. However, in Hatcher, the offending statute recited that “during the pendency to an action for divorce or alimony, the Court may allow the wife maintenance and a reasonable fee for her attorneys ...” Only by adding a word or words could this statute be made acceptable, and appellant has cited no authority for the proposition that words can be added in order to make a portion of a statute constitutionally correct. In a concurring opinion in Borchert v. Scott, 248 Ark. 1041, 460 S.W. 2d 28 (1970) Mr. Justice Fogleman observed:
We are not authorized to declare an entire act, or even an entire section thereof, invalid because a part of the act or section is unconstitutional, unless all of the provisions of the act, or the section, are so dependent on each other that it cannot be presumed that the Legislature would have passed one without the other.
As this Court stated in Swafford v. Tyson, supra, we conclude that it was the legislative intent to provide compensation for the death of an employee and that to make compensation available equally for a widow and a widower is more consistent with the legislative purpose than to exclude widows. The provisions of the sections herein held to be unconstitutional are not so interdependent that it cannot be presumed that the Legislature would have passed one without the other.
Appellant and the decedent were both employed by appellee and their earnings were approximately equal. They had no dependents, and all the money received by both was pooled into one account and checks for their expenses were paid from one account. They owned a home, vehicles and cattle jointly, shared a ride to work, and since almost all of their money was spent on expenses they had been unable to accumulate any substantial savings. There had been little reduction in the regular monthly expenses.
Ark. Stat. Ann. § 81-1315 (i)( 1) provides:
(i) Partial dependency. (1) If the employee leaves dependents who are only partially dependent upon his earnings for support at the time of the injury, the compensation payable for such partial dependency shall be in the proportion that the partial dependency bears to total dependency.
Under the authorities we cited in Swafford v. Tyson, we find there was substantial evidence to support the finding of the Commission that appellant was entitled to partial dependency benefits of fifty per cent (5096 ).
The cause is remanded to the Commission with directions to enter an award for appellant for partial dependency benefits of fifty per cent (5096 ) of the amount allowable.
|
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] |
Melvin Mayfield, Chief Judge.
This is an appeal from a default judgment. The complaint alleged that the parties were formerly engaged in business together and in winding up their business affairs they were required to pay $8500.00 to a third party; that appellant and appellee each owed one-half of this amount but the whole amount was paid by appellee and the appellant has refused to reimburse him; and the appellee asks for judgment against appellant in the amount of $4250.00.
The appellant contends that default judgment should not have been entered against him because (1) the return of service on the summons shows that he was not properly served and (2) no evidence was introduced to establish the amount of the judgment. Because we agree with (2) we express no opinion as to (1).
To support his contention with regard to entry of judgment without proof of damages, the appellant cites Greer v. Strozier, 90 Ark. 158, 118 S.W. 400 (1909). That case was reversed because the trial court entered a default judgment for damages without hearing any proof as to amount. As early as Thompson v. Haislip, 14 Ark. 220 (1853), the Supreme Court of Arkansas said that the failure to appear and defend was a confession of the plaintiff’s right to recover damages but it was not an admission of any particular amount of damages. And in Mizell v. McDonald, 25 Ark. 38 (1867), the court held that in a hearing to determine the amount of damages after default a defendant has a right to cross-examine the plaintiff’s witnesses and to introduce evidence in mitigation of damages. Thompson and Mizell have been cited with approval through the years. See Clark v. Collins, 213 Ark. 386, 210 S.W. 2d 505 (1948) and Kohlenberger v. Tyson’s Foods, 256 Ark. 584, 510 S.W. 2d 555 (1974).
There may be a two-fold basis for the requirement that the amount of damages must be established. In Thompson v. Haislip the court did not cite any case or statute as authority and Mizell v. McDonald cited only Thompson. The real authority relied upon in Thompson may have been the general practice as established in England and followed in this country. In discussing the early English and American practice with regard to defaults, 6 Moore’s Federal Practice par. 55.02[1] (2d ed. 1976) quotes from the case of Thomson v. Wooster, 114 U.S. 104, 5 S. Ct. 788, 29 L. Ed. 105 (1885). At 114 U.S. 113 that case said:
It is thus seen that by our practice, a decree pro confesso is not a decree as of course according to the prayer of the bill, nor merely such as the complainant chooses to take it; but that it is made (or should be made) by the court, according to what is proper to be decreed upon the statements of the bill, assumed to be true. This gives it the greater solemnity, and accords with the English practice, as well as that of New York.
However, Greer v. Strozier cited Kirby’s Digest, § 6137 (1904) which provided, “Allegations of value, or of amount of damage, shall not be considered as true by the failure to controvert them.” That section was later compiled as Ark. Stat. Ann. § 27-1151 and has now been superseded by the Rules of Civil Procedure which provide in rule 8 (d) that “Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied, either generally or specifically, in the responsive pleading.” That rule was taken from Federal Rule of.Civil Procedure 8 (d) which contains almost identical language and which has been relied upon as authority in holding that a default establishes liability but not the extent of damages. Geddes v. United Financial Group, 559 F. 2d 557 (9th Cir. 1977); Fehlhaber v. Indian Trails, Inc., 425 F. 2d 715 (3rd Cir. 1970).
So, regardless of the original basis, our case and statutory authority very clearly requires that the amount of the default judgment must be established by proof. The only exception that we know to this rule is in suits upon accounts where there is filed with the complaint a verified statement of the account under the provisions of Ark. Stat. Ann. § 28-202 (Repl. 1979). In that situation the statute provides that “[T]he affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct shall be sufficient to establish the same, unless the defendant shall, under oath, deny the correctness of the account either in whole or in part. ...” See Hershy v. MacGreevy & Yantis, 46 Ark. 498 (1855) and Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957).
Rule 55(b) of the Arkansas Rules of Civil Procedure deals with the “manner of entering judgment” by default and provides in part:
If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings as it deems necessary and proper and may direct a trial by jury.
The language quoted above is the exact language found in rule 55 (b) (2) of the Federal Rules of Civil Procedure. Under the federal rule there is a provision for the clerk to enter judgment by default when the claim is “for a sum certain or a sum which can by computation be made certain” but that provision is not in our rule 55. We are, therefore, of the opinion that rule 55 of the Arkansas Rules of Civil Procedure did not change our law with regard to the necessity of proving damages to establish the amount of a default judgment.
The record in this case only contains the following matter: complaint, summons, judgment, docket sheet, notice of appeal and designation of record. There is, however, a presumption of regularity attendant upon every judgment of a court of competent jurisdiction. Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487(1975). But the judgment appealed from in this case does not state that it is based upon evidence heard by the court. It simply says “The court finds that the plaintiff is entitled to default judgment.” In Hershy v. Berman, 45 Ark. 309 (1885), the court said “If there was anything in the record to indicate that oral proof was heard at the trial, we would presume that the decree is correct and affirm. ...” And in Dent v. Adkisson, 184 Ark. 869, 874, 43 S.W. 2d 739 (1931), the court said:
It is not to be doubted that on any issue made in the trial court, where testimony is taken and not preserved, the conclusive presumption arises that evidence was sufficient to sustain the finding and decree of the court. ... no fair interpretation can be placed upon the language of the order of confirmation which would justify the inference that testimony was heard regarding the truth or falsity of the allegations contained in the petition. ... and all that the record justifies us in concluding is that the chancellor heard no testimony.
Since the judgment here involved contained no recital that evidence was heard, we cannot presume otherwise. The judgment is reversed and the case remanded.
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Donald L. Corbin, Judge.
Appellant was charged with murder in the first degree in violation of Ark. Stat. Ann. § 41-1502 (Repl. 1977). Following a trial by jury, she was found guilty of manslaughter and sentenced to ten years in the Arkansas Department of Correction. She alleges five points of error on appeal. One point is meritorious. We reverse the judgment and remand the case for retrial.
On December 11, 1978, appellant Carla Worring had followed her husband’s truck to a darkened area behind a truck terminal in Stuttgart, Arkansas. She found her husband seated in a parked automobile with Diane Moritz. Appellant parked directly behind Ms. Moritz’s car and walked around to the driver’s side of the other vehicle and opened the door. She verbally accosted her husband and shot him one time with a .22 caliber pistol. Appellant and Ms. Moritz attempted to load the victim into appellant’s car to take him to the hospital. Ms. Moritz left the scene to find someone to help them load the victim into the car. Cecil Worring, the appellant’s husband, died shortly after arriving at the local hospital.
I.
Appellant contends the trial court erred in excluding expert testimony presented by appellant relating to appellant’s psychological make-up and formation of intent. Appellant proposed to present at trial the testimony of psychiatrist Dr. Aubrey C. Smith concerning certain psychological aspects of appellant as they relate to culpable mental state, intent, and other aspects of appellant’s state of mind at the time of the shooting. The trial court excluded such testimony but allowed appellant to make a proffer of what Dr. Smith’s testimony would be. Appellant testified that she had not intentionally fired the weapon and had no intention of doing so at any time. She contends her testimony would have been corroborated by the expert testimony of Dr. Smith.
We fail to see where appellant was prejudiced by the court’s failure to allow this testimony. The charge of first degree murder was reduced to manslaughter by the jury, apparently on the testimony of appellant as to her state of mind at the time of the shooting.
The manslaughter statute, Ark. Stat. Ann. § 41-1504 (Repl. 1977), in part provides:
Manslaughter. — A person commits manslaughter if:
(a) he causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. The reasonableness of the excuse shall be determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be;
(c) he recklessly causes the death of another person;
The jury could have used either one of these definitions to convict appellant of manslaughter.
II.
Appellant alleges that the trial court erred in denying appellant’s motion for mistrial because of inadmissible, inflammatory and prejudicial cross-examination by the State. Since we are reversing and remanding for a new trial, we need not consider this issue because we believe it can be adequately dealt with at the trial court level.
III.
For her third point for reversal, appellant alleges that the trial court erred in not instructing the jury on negligent homicide. In the case at bar, appellant was charged with first degree murder. The jury was instructed on first degree murder, second degree murder and manslaughter. Defendant’s requested instruction on negligent homicide was refused by the court.
Ark. Stat. Ann. § 41-1505 (Repl. 1977) defines negligent homicide as: “(1) A person commits negligent homicide if he negligently causes the death of another person.”
Ark. Stat. Ann. § 41-203 (Repl. 1977) defines reckless and negligent culpable mental states. The Commentary to that section distinguishes the definitions for reckless and negligent mental states, to-wit:
“Negligent” conduct is defined by subsection (4). It is distinguished from “reckless” conduct primarily in that it does not involve conscious disregard of a perceived risk. An actor charged with negligent homicide — for example, negligent homicide (§ 41-1505) — is assumed to have been unaware of the existence of the risk. Under the definition, the fact finder must determine whether the actor should have been aware of a risk. The nature and degree of the risk itself are the same for both culpable mental states.
It follows that the jury, as the finder of fact, should have been instructed on negligent homicide. They could have determined whether appellant should have been aware of the risk in her pointing a gun at the victim.
IV.
Appellant alleges that the trial court erred in allowing the State to present hearsay testimony to corroborate another witness.
During the testimony of Tammy Bose, a witness called in behalf of the State, the State elicited testimony concerning a conversation between Ms. Bose and Diane Moritz to which appellant objected. Appellant contends these were hearsay statements concerning Ms. Moritz’s intention to purchase a weapon from the victim as a gift to her husband. The obvious intent of eliciting this statement was to corroborate Ms. Moritz’s testimony as to her reason for meeting Mr. Worring behind the truck-stop on the evening of the shooting. We agree with the State that the testimony was not offered to prove the truth of the matter asserted, and therefore, the testimony was not hearsay. Ark. Stat. Ann. § 28-1001, Uniform Rules of Evidence, Rule 801. We find no error here.
V.
Appellant alleges that the trial court erred in sustaining the State’s objection to appellant’s redirect testimony.
After cross-examination by the State, appellant testified on redirect. The State objected to her testimony stating that the testimony had not been covered in direct examination and was improper. The objection was sustained by the court and excluded. Appellant acknowledges that the reason for this testimony was to show the jury that appellant had related the same series of events from the night of this occurrence to the date of trial with little or no variation in her statements. Appellant contends that her credibility was of utmost importance in this case.
It was recently observed by the Arkansas Supreme Court in George v. State, 270 Ark. 335, 604 S.W. 2d 940 (1980) that:
The general rule is that prior consistent statements of a witness are not admissible to corroborate or sustain his testimony given in court. Rogers v. State, 88 Ark. 451, 115 S.W. 156 (1908). Such statements are self serving and cumulative, and their admission would simply suggest that credibility depends upon the number of times the witness had repeated the same story rather than inherent trustworthiness of the story. 4 Wigmore on Evidence (Chadbourne Rev.) §§ 1122-1124.
During cross-examination of the appellant, the State never expressly or impliedly charged that the appellant’s direct testimony was fabricated. We find no error in the trial court’s refusal to exclude this testimony.
We reverse and remand.
Gla2:e, J., concurs.
Cloninger, J., dissents.
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George K. Cracraft, Judge.
The appellant, Catherine Sims, formerly lived in Arkansas but moved to Anchorage, Alaska, to accompany her husband who was in the armed forces. She obtained employment as a teacher upon arrival in Alaska in September of 1980. She was terminated from that employment in January of 1981 because she did not have certain credits required for teacher certification in that state.
She therefore enrolled in the University of Alaska in January and was taking the required three courses on Tuesdays, Wednesdays and Thursdays. The Tuesday and Wednesday classes were night classes, but her Thursday class began at 1:00 p.m. and continued until 3:00 p.m.
She made application for unemployment benefits while seeking other employment. She was initially disqualified by the agency as not able and available for work and appealed that determination to the Appeal Tribunal.
The tribunal found that her chances of finding work were greatly restricted due to the fact that she did have one day of classes in the afternoon, and if she found a daytime job those classes would prevent her from accepting employment. The tribunal declared her ineligible on finding that she was not fully able and available for work. The evidence touching on this point was as follows:
Referee: If you got a job that required you to give up your schooling, would you do so?
Claimant: The one that, yes because it’s just that one class that I would ...
Referee: Okay so all you’d have to do is just give up the one class.
Claimant: Right.
On her appeal from a determination of the tribunal, she stated to the Board of Review:
I am willing to drop the 1:00 p.m. class if I’m offered a job. I need this class for certification to get a teacher position, but I will drop this class. The evening class would not interfere with my availability to work. The afternoon class could be rescheduled.
The Board of Review adopted the finding of the referee and affirmed his conclusion that she was ineligible because she was not fully able and available for work.
The basis for her disqualification was clearly stated to be that she was unavailable for work on the afternoon that she had classes. It is clear that she stated to both fact finding bodies that she would drop that class if it interfered with her work or if she was offered a job. There was nothing else in the record touching on the question of her availability.
The sole question for this court to determine on appeal from the Board of Review is whether there is substantial evidence to support the Board of Review’s finding that the appellant was not fully able and available for work. Oxford v. Daniels, 2 Ark. App. 200, 618 S.W. 2d 171 (1981). Substantial evidence is valid, legal and persuasive evidence; such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Victor Industries Corporation v. Daniels, 1 Ark. App. 6, 611 S.W. 2d 794 (1981).
We find no substantial evidence to support the finding of the Board of Review that this appellant was not fully able and available for work. To the contrary, the only evidence before it was to the effect that she would make herself available for offered employment by dropping the Thursday afternoon course which the agency determined to be the only impediment.
Reversed.
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Melvin Mayfield, Chief Judge.
Town and Country Home Center, Inc. failed suit against Gerald Swart to recover $474.80, the balance alleged to be due on the purchase price of several appliances. Swart filed an answer and counterclaim alleging that one of the appliances, a kitchen range, was defective and that he was entitled to a credit on the amount due. Swart had been an employee of Town and Country and his counterclaim also alleged that Town and Country was indebted to him under the Fair Labor Standards Act for hours worked in excess of forty hours a week.
The case was tried by the court without a jury and the court held against Swart on his claim for overtime but gave him credit for $100.00 on the amount sought by Town and Country. Swart has appealed from the court’s ruling as to his overtime claim and Town and Country has cross-appealed from the court’s allowance of the $100.00 credit.
With regard to the credit, there was evidence by Swart that a claim for damages to the range was made against the truck line which delivered it and that $100.00 was paid on that claim. Swart was a repairman for Town and Country and he testified that his employer told him that if he would fix the stove they would give him the freight claim. The court allowed Swart credit for the $100.00 and we do not think this is contrary to the preponderance of the evidence.
As to the claim for overtime under the Fair Labor Standards Act, the point involved on this appeal concerns the admissibility of the testimony and written report of a compliance officer of the Wage and Hour Division of the United States Department of Labor. This gentleman was called as a witness by Swart but the court sustained objections to his testimony and he never gave any evidence concerning an investigation he had made of Town and Country to check for compliance with the minimum wage and overtime standards of the federal law. Although there was some confusion surrounding the questions, objections, and rulings of the court, Swart is not in a position to pursue the matter in this appeal because there was no offer to show what the testimony of the witness would have been. Our Supreme Court has said, “We have said many. times that the failure to proffer evidence so that we can see if prejudice results from its exclusion precludes review of the evidence on appeal.” Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978) and Goodin v. Farmers Tractor & Equipment Co., 249 Ark. 30, 458 S.W. 2d 419 (1970). See also Rule 103(a)(2), Uniform Rules of Evidence.
After the objections were sustained to the witness’ testimony, Swart then attempted to introduce into evidence the compliance officer’s report. Again there was some confusion surrounding the offer, objections, and rulings concerning the report but it was not admitted. While the record does not disclose that the court was ever shown the report or advised of its contents, it appears in the transcript as a refused exhibit. The first page of the report is a letter addressed to Swart’s attorney stating, “This is in response to your Freedom of Information Act request which was received in this office on May 27, 1980.” In the narrative report enclosed with the letter under the heading “Complainant Information” appears the following: “The complaint received was anonymous alleging the firm did not pay time and one half for hours over 40 per week, which was substantiated.” Attached to the narrative report is a page called “Wage Transcription and Computation Sheet” which apparently is a breakdown of hours claimed to have been worked by Swart and amounts claimed to be due to him although without some explanation it is hardly understandable. And under the heading “Coverage” the following appears:
The subject firm is engaged in the retail sale and repair of home appliances and televisions, etc.
ADV for the firm is in excess of All employees covered in all weeks under 3(s) coverage.
The deletion above is apparently made in keeping with an explanation in the letter to Swart’s attorney which read, “A deletion was made in the narrative report pursuant to Exemption 4 of the Freedom of Information Act and Department of Labor Regulations 29 CFR 70.24. This exemption permits the withholding of confidential financial information.”
In response to Swart’s cross-complaint for overtime under the Fair Labor Standards Act, Town and Country filed a general denial. It was, therefore, Swart’s burden to show by a preponderance of the evidence that he had a claim under the provisions of the Act. Fayetteville Linen Supply v. Brewer, 245 Ark. 103, 431 S.W. 2d 458 (1968); Wirtz v. Lieb, 366 F. 2d 412 (10th Cir. 1966); Razey v. Unified School District #385, 470 P. 2d 809 (Kans. 1970). The only evidence in the record in this respect is the offered report of the compliance officer. It apparently says that coverage of the Act exists because of 29 U.S.C.A. § 203(s). For Town and Country to come within that provision it would have to be an enterprise “which has employees engaged in Commerce or in the production of goods for commerce or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce” and whose “annual gross volume of sales made or business done is not less than @250,000.” There were no other facts set out in the report to show that section 203(s) applied and even the monetary figure was deleted.
The report is, of course, hearsay. Southern Farm Bureau Casualty Ins. Co. v. Reed, 231 Ark. 759, 332 S.W. 2d 615 (I960); New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4 (1962). But it is argued that it comes within the hearsay exception of Rule 803 (8) of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). Under 803(8), “factual findings resulting from an investigation made pursuant to authority granted by law” are not excluded by the hearsay rule although under 803(8)(iv), “factual findings resulting from special investigation of a particular complaint, case or incident” are not within this exception to the hearsay rule. Since the report offered indicates the investigation resulted from an anonymous complaint, it would appear that subsection (iv) would apply. This provision of the Uniform Rules of Evidence adopted by Arkansas is not found in Rule 803(8) of the Federal Rules of Evidence and while we find no Arkansas appellate decision concerning subsection (iv) there is a decision about subsection (i) (investigative reports by police and other law enforcement personnel) which held that the written report of a deputy sheriff who investigated the death of an insured was excluded from the hearsay exception of Rule 803(8). Wallin v. Ins. Co. of North America, 268 Ark. 847, 596 S.W. 2d 716 (Ark. App. 1980). In our view the written report of the compliance officer was hearsay. It resulted from a “special investigation of a particular complaint” and was not excepted from the hearsay rule.
In addition, it is only the “factual findings” resulting from an investigation that come within the hearsay exception of Rule 803(8). Although one authority has suggested that under the Federal Rules of Evidence this does not mean “only facts as opposed to conclusions or opinions drawn from facts,” the same authority also says “the extent to which Rule 803(8) sanctions the admission of investigative reports containing conclusions must also be determined on the basis of a case by case analysis.” 4 J. Weinstein & M. Berger, Weinstein’s Evidence, § 803(8) [03] at 803-204. As far as coverage of the Fair Labor Standards Act is concerned, there is absolutely no factual basis in the report to justify its conclusion that “all employees are covered in all weeks under 3(s) coverage” and in our opinion the trial court was correct in holding that the report was not admissible.
The judgment appealed from is affirmed.
Cooper, J., dissents.
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Donald L. Corbin, Judge.
This is an appeal from the Arkansas Employment Security Division denying unemployment compensation to the appellant, James Odis Oxford, on the ground that he had voluntarily and without good cause connected with the work, left his last work. The decision was affirmed by the Appeal Tribunal and the Board of Review.
On or about January 17, 1980, the appellant was hired by the Moore Company of Springdale, Arkansas. His duties required him to pack tools into boxes for shipment. In March, 1980, the Moore Company transferred its packing function to another location and discharged appellant. On March 28, 1980, appellant filed for unemployment compensation and was found qualified to receive payments. On or about July 7, 1980, the appellee contacted appellant about accepting a position operating a grinder machine. Appellant was reluctant to accept the job as a grinder machine operator because he had poor eyesight in one eye and no kneecap on one of his knees. He reminded his prospective employer, the appellee’s personnel officer, of these handicaps. Apparently, after conferring with the supervisor of the grinding operation, the personnel officer told appellant that they thought he could handle the job. Appellant worked three days and quit. He stated that he quit because standing in one place all day caused him to ache all over and he could not see well enough to perform the job properly.
Section 5(a) of the Arkansas Employment Security Law [Ark. Stat. Ann. § 81-1106 (a) (Supp. 1979)] provides that an individiual shall be disqualified for benefits “if he voluntarily and without good cause connected with the work, left his last work.” A worker who leaves his work because of illness, injury, pregnancy, or other disability, may escape disqualification under said section 5(a) if he makes reasonable efforts to preserve his job rights before quitting.
Ark. Stat. Ann. § 81-1106(c)(1) (Repl. 1976) provides as follows:
In determining whether or not any work is suitable for an individual and in determining the existence of good cause for voluntarily leaving his work under subsection (a) of this section, there shall be considered among other factors, and in addition to those enumerated in paragraph (2) of this subsection, the degree of risk involved to his health, safety and morals, his physical fitness and prior training, his experience and prior earnings, the length of his unemployment, his prospects for obtaining work in his customary occupation, the distance of available work from his residence and prospects for obtaining local work.
The sole question for us is whether there is substantial evidence to support the agency’s finding that appellant did not have good cause connected with the work for leaving his job. We do not find there is substantial evidence to support the agency’s finding.
Appellant was 54 years old with a seventh grade education. He had worked as a laborer during his entire lifetime and had never earned over $3.75 per hour. The appellant should not be penalized because he made a mistake and accepted the job in good faith, hoping that he could handle it and trusted his supervisors to take his handicaps into consideration and advise him as to his compatibility with the work to be assigned. The appellant could just as easily have declined the position offered and continued to draw unemployment compensation on the grounds that his visual defect and his infirmed leg made him incapable of successfully operating the machine. In fact, a letter from William Smiley, personnel officer with the appellee company, stated: “[I]t is my own personal opinion that through Mr. Oxford’s desire to work he allowed himself to come to a job for which he was not physically able to maintain. ... I agree with Mr. Oxford that he made an error in judgment regarding his physical limitations. Additionally, I feel that if it were not for his own sincere efforts to obtain full time employment, this situation would not have occurred.”
The Supreme Court of Arkansas in Harmon v. Laney, 239 Ark. 603, 393 S.W. 2d 273(1965), quoting from Dahman v. Commercial Shearing & Stamping Co., 170 N.E. 2d 302 (Ohio, 1960) stated, “This is to say, the act should be liberally construed so as to insure a subsistence bridge for those who have been separated from employment under conditions whereby they are ready, willing and able to work, but cannot conscientiously secure it during the period of separation.” The Arkansas Supreme Court went on to state, “Strict constructions which result in defeat of the intended purposes of the Act will not be sanctioned by this court.”
Another court has held that when, because of economic factors, workmen may be forced to experiment with work outside their fields in an effort to find some employment, such workers would not be barred from receiving benefits for making such laudable efforts. Wojcik v. Board of Review, 58 N.J. 341, 277 A. 2d 529 (1971), reported at 76 Am. Jur. 2d Unemployment Compensation § 69.
In the instant case, Mr. Oxford was entitled to believe that no other position would be available to him. For him to have made an effort in this instance to preserve his job rights would have required him to make what would have amounted to a futile gesture. He had been told that the grinding machine position was the only one available to him.
Reversed and remanded.
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Tom Glaze, Judge.
The appellant father appeals the Benton County Chancery Court’s decision, declining jurisdiction of a habeas corpus action filed by the appellee mother and recognizing and enforcing a prior Oklahoma divorce decree which awarded custody of the parties’ minor child, Toby, to appellee. In rendering its decision, the trial court acted pursuant to the Uniform Child Custody Act (Ark. Stat. Ann. §§ 34-2701 et seq.).
The parties resided in Oklahoma when the appellant filed for divorce on February 7, 1979. Although he was first awarded custody of Toby, the court entered a second order one week later giving temporary custody to appellee. On or about April 1, 1979, appellant took physical possession of Toby and went to Canada. Appellant claims that he then moved to Rogers, Arkansas, where he and Toby have resided since May 1, 1979- On January 29, 1980, the Oklahoma court granted appellee a divorce and awarded her permanent custody of Toby. Appellant’s whereabouts were unknown by appellee at the time of the divorce and he was not present when the divorce was granted.
In February, 1980, appellant filed an action in the Benton County Chancery Court seeking custody of Toby and obtained an order awarding custody on April 23, 1980. Appellee was never served with any notice of this Arkansas proceeding. Sometime after this proceeding, appellee discovered where appellant and Toby resided and filed a petition for writ of habeas corpus in the Benton County Chancery Court on August 5, 1980, requesting the court to recognize and enforce the Oklahoma decree which awarded appellee custody of Toby. After a trial on appellee’s petition in September, 1980, the trial court vacated its earlier order entered on April 23, 1980, granting custody to appellant, and the court proceeded to dismiss appellee’s petition and awarded custody of Toby to appellee in accordance with the Oklahoma decree and pursuant to Ark. Stat. Ann. § 34-2713. Appellant appeals the trial court’s order, contending that it erred: (1) in not permitting appellant to develop evidence bearing both on the fitness of the parties and also where the best interests of the child lie; (2) in dismissing the appellee’s petition, finding it had no jurisdiction and enforcing the Oklahoma decree.
At the trial, the appellant attempted to elicit testimony from witnesses to show appellee was unfit to be awarded custody of the parties’ child. The court refused to hear the evidence offered by appellant, stating it must first determine whether the court would exercise jurisdiction of the case. To determine the correctness of the court’s ruling, we must first consider Ark. Stat. Ann. § 34-2706(a), which provides:
A court of this State shall not exercise its jurisdiction under this Act [§§ 34-2701 — 34-2725] if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons. [Emphasis supplied.]
Appellant argues that no action was pending in Oklahoma when the actions in Arkansas were filed. If appellant were correct in his argument, the trial court had the discretion to take jurisdiction under one of the alternative situations set forth in Ark. Stat. Ann. § 34-2703. We disagree with appellant’s contention. Like Arkansas, the Oklahoma courts are vested with continuing jurisdiction in child custody matters when a decree of divorce is granted. See, Clampitt v. Johnson, 359 P. 2d 588 (Okla. 1961), and Turk v. Coryell, 419 P. 2d 555 (Okla. 1966). In accordance with this legal principle, either party may choose to petition the Oklahoma court to modify or enforce its divorce decree. In fact, appellee did file such a petition in Oklahoma in February, 1979, after she was awarded temporary custody and when appellant removed Toby from the State of Oklahoma. Of course, appellant defeated appellee’s attempt to enforce the Oklahoma court’s order by going to Canada and then to Arkansas. Appellant’s actions are exactly the type of conduct the Uniform Child Custody Jurisdiction Act is designed to prevent or counteract. The record before us clearly reflects that Oklahoma obtained jurisdiction, which is continuing over the appellant and appellee, and the jurisdiction exercised by the Oklahoma court is clearly in conformity with our Uniform Act, a prerequisite to be met under Ark. Stat. Ann. § 34-2706(a) above before our court will defer jurisdiction to another state.
Once a custody decree has been rendered by another state, as the Oklahoma court did here, we must then determine whether the Arkansas court should exercise jurisdiction under § 34-2708. See, 9 Uniform Laws Annotated, Uniform Child Custody Jurisdiction Act, § 6, Commissioner’s Note. Paragraph (b) of § 34-2708 provides:
(b) Unless required in the intrest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provisions of a custody decree of another state, the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.
Appellant contends that the interests of Toby require that the Arkansas trial court permit him to present evidence which he argues shows appellee to be an unfit mother. Most of the evidence offered by appellant and excluded by the court concerned allegations that appellee lived in Oklahoma with a rather unsavory man without the benefit of holy matrimony and she had been seen frequenting taverns. There were additional allegations that appellee used obscenities on the telephone when speaking with appellant’s mother and that she also threatened to kill appellant’s father.
We do agree with appellant that under § 34-2708(b) the Arkansas court could exercise jurisdiction irrespective of the prior Oklahoma decree if Toby’s interests so warranted. However, in the case of an improper removal or retention under § 34-2708(b), the refusal of jurisdiction is mandatory unless the harm done to the child by a denial of jurisdiction outweighs the parental misconduct. See, 9 Uniform Laws Annotated, Uniform Child Custody Jurisdiction Act, § 8, Commissioner’s Note. The misconduct attributed to appellant in the instant case is not limited to his surreptitious removal of Toby to Canada and Arkansas. Upon filing his custody action in Arkansas in February, 1980, appellant intentionally misrepresented to the court that he did not know the whereabouts of appellee and that her last known address was 519 East Center, Alva, Oklahoma, the residence of appellant’s aunt and úncele. Appellant admitted that appellee had never lived with his aunt and uncle. In this same custody action, he also failed to give the court information required by Ark. Stat. Ann. § 34-2709 and in so doing, failed to inform the court of the prior Oklahoma custody action and the addresses where and the persons with whom Toby had lived in the past five years.
As to the issue of what harm might come to Toby if we affirm the trial court’s decision to decline jurisdiction, we see little merit in appellant’s argument. Appellant admits that most of his witnesses concerning appellee’s alleged unfitness are located in Oklahoma. The parties were residents of Oklahoma when appellant filed for divorce. The Arkansas trial court determined. from the testimony of appellant and appellee that evidence to be presented by each was more readily available in Oklahoma. It is only because appellant improperly departed from Oklahoma in the first place that Arkansas has any contacts which could result in any relevant evidence to the parties’ quest for custody of Toby. We also find it significant that there was no evidence, including that offered by appellant and excluded by the trial court, which would indicate any immediate danger to Toby. In so finding, we do not mean to in any way countenance the misconduct or misdeeds of appellee if they are true. Because appellant charges this misconduct of appellee occurred in Oklahoma, the Oklahoma court is in a much better position to obtain the facts which bear on the fitness of the parties and the best interests of the child. We agree with appellant and hold accordingly that the trial court has a duty under the Uniform Child Custody Jurisdiction Act, including § 34-2708 (b), to consider the interests of the child and not automatically defer to a prior sister state order or decree. From the record, we conclude the court did consider Toby’s interests and correctly determined they can best be protected by the court in Oklahoma.
Appellant’s last contention concerns the trial court’s dismissal of appellee’s petition for writ of habeas corpus and enforcement of the Oklahoma decree. The appellee filed a certified and authenticated copy of the Oklahoma decree with the clerk of the trial court below. After an extended hearing, specific findings were made by the court, and the court recognized and enforced the Oklahoma decree pursuant to § 34-2713. The chancellor’s findings, enforcement of the Oklahoma decree and dismissal of appellee’s petition were all included in the trial court’s order entered on September 22, 1980. Appellant contends the trial court erred in taking judicial notice of the law of Oklahoma in determining if it is in substantial conformity with Arkansas law, a requirement under the Uniform Child Custody Jurisdiction Act. Appellant cites the case of Wallis v. Mrs. Smith’s Pie Company, 261 Ark. 623, 550 S.W. 2d 453(1977), wherein the court stated, “Arkansas courts are required to take judicial notice of the statutory laws of other states and... it is only necessary to. plead foreign law, not prove it.” Accordingly, appellant argues appellee did not plead Oklahoma law, and for this reason, the court should not have considered it. We disagree. Throughout the petition of appellee, she pled that the Arkansas court should give full faith and credit to the prior Oklahoma decree, and it is clear from the pleading that Oklahoma law was in issue. The Uniform Child Custody Jurisdiction Act does not require a party to plead a sister state’s law. Even in cases where Arkansas law requires a party to give notice in his pleading if he intends to rely on another state’s law, our courts have held that no such specific notice is required if this inference can be found from the party’s pleading. See, Yarbrough v. Prentice Lee Tractor Company, 252 Ark. 349, 479 S.W. 2d 549 (1972); Rule 44.1, Arkansas Rules of Civil Procedure.
Affirmed.
34-2703. Jurisdiction. — (a) A court of this State which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) this State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) it is in the best interest of the child that a court of this State assume jurisdiction because (i) the child and his parents, or the child and at least one [1] contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(3) the child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4) (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
(b) Except under paragraphs (3) and (4) of subsection (a), physical presence in this State of the child, or of the child and one [1] of the contestants, is not alone sufficient to confer jurisdiction on a court of this State to make a child custody determination.
(c) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. [Acts 1979, No. 91, § 3, p. —]
Oklahoma adopted the Uniform Child Custody Jurisdiction Act (10 Okla. St. Ann. § 1601 et seq.) which became effective October 1, 1980, nine days after entering of the parties’ Oklahoma divorce decree.
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George K. Cracraft, Judge.
The appellant brings this appeal from an order of the Circuit Court of Jefferson County, granting appellee’s motion for summary judgment and dismissing appellant’s complaint. He contends that there was a material issue of fact to be determined and that it was error to grant the summary judgment.
The appellant, Curley Woodell, brought this action in the Circuit Court for personal injuries against the appellee, Brown & Root, Inc., alleging that during a “preemployment physical” examination the appellant was negligently injured by a technician or nurse employed by the appellee who, while “acting within the scope of his employment in making the examinaion,” acutely hyperextended him, severely re-injuring a former injury to his lower back.
The appellee answered that at the time the injury occurred the appellant was its employee and that the injury arose out of and in the course of that employment, pleading the exclusive remedy provisions of Arkansas Workers’ Compensation Act as a complete defense.
Thereafter the appellee filed a motion for summary judgment pursuant to Rule 56, Rules of Civil Procedure [Ark. Stat. Ann. vol. 3A (Repl. 1979)]. Attached to the motion was an affidavit of the employer’s safety supervisor, in which it was asserted that the work records of the appellee company showed that on the date of the injury the appellant worked for the appellee ten hours and was paid for his labor on that date the sum of @41.94. He further stated that on the date on which the injury occurred the appellant was an employee of appellee.
The appellant responded, asserting that the injury resulted from appellee’s negligent attempt to provide medical service, which was outside of the employer/employee relationship, and that the action was brought to recover damages for the negligent manner in which the medical service was performed. Appellant filed no supporting affidavits with his answer. The trial court ruled that the appellant was an employee of appellee on the date in question and was in the course and scope of his employment when the injury was sustained, and ordered that the motion for summary judgment be granted and the complaint dismissed.
In a proper case a summary judgment is a useful device for avoiding unnecessary trials where there is no real material issue of fact to be decided, and when the pleadings,. depositions, answers to interrogatories and admissions on file, together with supporting affidavits show that there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law. Hughes Western World v. Westmoor Manufacturing Company, 269 Ark. 300, 601 S.W. 2d 826 (1980); Deam v. O. L. Puryear & Sons, 244 Ark. 18, 423 S.W. 2d 554. The theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Hence the trial court views the evidence in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party. Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963).
Ark. Stat. Ann. § 81-1304 (Supp. 1979) provides that the rights granted an employee by the Workers’ Compensation Act shall be his exclusive remedy against his employer. If the injury is one covered by the Workers’ Compensation Act, the employee is restricted to the remedies provided in that act against his employer and may not bring an action on the same facts in tort. On this summary motion it was incumbent upon the moving party to establish that there was no genuine issue of fact as to whether or not the appellant would be entitled to the benefits of the Workers’ Compensation Act.
It is well established that in order for a worker to receive benefits under that act, he has the burden of proving both that the relationship of employer/employee existed and the injury arose out of and in the scope of that employment. Ark. Stat. Ann. § 81-1302(d) (Repl. 1976); Williams v. Arkansas Nursing Home, 255 Ark. 880, 503 S.W. 2d 474 (1974); Duke v. Pekin Wood Products Company, 223 Ark. 182, 264 S.W. 2d 834; Bunny Bread v. Shipman, 267 Ark. 926, 591 S.W. 2d 692 (1979). Conversely, for the exclusive remedy provided by § 81-1304 to be available to the employer on summary motion it must show that there is no material issue of fact to be determined as to either of those elements of entitlement to the worker.
The appellant argues that the court erred in granting the motion for summary judgment because the affidavit did not establish that the injury arose out of appellant’s employment and, as the physical examination was deemed a preemployment one, there was a material issue of fact as to whether the appellant was at the time of the injury in the employ of the appellee.
In considering a motion for summary judgment the trial court examines the pleadings, depositions and admissions as well as affidavits, to determine if there is a general issue as to the material facts involved. Rule 56(c), Rules of Civil Procedure [Ark. Stat. Ann. vol. 3A (Repl. 1979)]; Deam v. O. L. Puryear & Sons, supra.
The complaint alleges that appellant was an employee of appellee when injured on the job during the course of his employment with appellee on April 30, 1979. It alleges that he was subsequently released to return to work for the appellee, but prior to his return to work the employer conducted a physical examination on him which was negligently conducted and caused his re-injury. The allegations clearly indicate that the examination was required for the benefit of the employer and was conducted by one of its employees acting within the scope of his authority. In the complaint the examination is referred to as a “preemployment.” physical and that it was required “prior to reemployment.” It was appellant’s contention that as the examination occurred prior to his reemployment, his injury was sustained before the employer/employee relationship was established. When the issues were joined, whether or not he was an employee within the meaning of the Workers’ Compensation Act was a disputed issue of fact.
However, the affidavits filed with the appellee’s motion for summary judgment establish that on the date in question the payroll records of the employer show that appellant worked ten hours that day and was paid at his usual rate for that work. The affidavit further established that he was an employee of appellee on that date. No counteraffidavits were submitted in appellant’s answer. He relied then and now on his allegation that this was a preemployment examination and hence the relief should not have been given.
Appellant’s argument that summary motion should not have been granted because there was no connection between it and the actual employment of appellant must fail for two reasons. Examinations of the type in issue are wholly for the benefit of the employer and under his direction and control. The employee conducting the examination was stated to have been an employee of appellee, acting within the scope of his employment. Workers who are injured as the result of examinations so required and conducted are entitled to the protection of the Act. Lotspeich v. Chance Vought Aircraft, 369 S.W. 2d 705 (Tex. Civ. App.).
Appellant relies upon Albert Pike Hotel v. Tratner, 240 Ark. 958, 403 S.W. 2d 73. In Tratner the injured party had been offered a job to commence two days later, provided she could obtain a health card. She was injured while on the premises of the City Health Department seeking to obtain the card. There the examination was not done under the supervision of the employer and the injury occurred two days before the employment was to commence. It is clearly distinguishable from the facts now before the court.
Secondly, there was no material issue of fact as to whether appellant’s employment had commenced at the time he underwent the required examination by appellee’s employee. Appellee’s supporting affidavits established that he was so employed at the time and was paid for his work at his customary rate.
The appellant did not file a counteraffidavit or in any way contradict the affidavit by appellee that the status of employer/employee existed at the time. As he did not controvert that affidavit, he may not now rely upon and argue with reference to the allegation in his answer to that motion that the employer/employee relationship did not exist nor rely upon the statements in his complaint which were the subject of the appellee’s affidavit. It is well established that when the movant for summary judgment makes a prima facie showing of entitlement to a summary judgment, the respondent must discard the shield and cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World v. Westmoor Manufacturing Company, supra. Appellee established the employer/employee relationship by affidavit which was not contradicted. The, appellant himself alleged that the examination resulting in the injury was had in connection with his reemployment, and that the person causing the re-injury was an employee of appellee acting within the scope of his employment.
It is not necessary on a Workers’ Compensation claim that the employee be injured while performing the specific task for which he has been employed. It has been held that he is equally covered if he is injured while performing some task other than that assigned to him, if it be in connection with his employment and required by his employer. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S.W. 2d 113.
We find no error in the action of the Circuit Court.
Affirmed.
Mayfield, C.J., and Cooper, J., dissent.
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JOHN F. Stroud, Jr., Judge.
Appellant, Esther Greenberg, applied for unemployment compensation benefits after she was discharged by her employer, Checkbureau, Inc., for poor job performance. The Arkansas Employment Security Department determined that appellant was entitled to benefits under Ark. Code Ann. §11-10-514 (Supp. 1995) because she was discharged from her last work for reasons other than misconduct. Checkbureau appealed that determination to the Arkansas Appeal Tribunal, which affirmed the Department’s finding. Checkbureau then appealed the Tribunal’s decision to the Board of Review, and the Board reversed the Tribunal’s findings and found that appellant was disqualified for benefits because she was guilty of misconduct connected with her work. We reverse.
A person is disqualified from benefits if she is discharged from her last work for misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Supp. 1995). “Misconduct,” for purposes of unemployment compensation, involves: (1) disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee’s duties and obligations to his employer. George’s, Inc. v. Director, 50 Ark. App. 77, 900 S.W.2d 590 (1995). There is an element of intent associated with a determination of misconduct. Id. In Willis Johnson Co. v. Daniels, 269 Ark. 795, 601 S.W.2d 890 (Ark. App. 1980), this Court stated that:
Mere inefficiency, unsatisfactory conduct, failure of good performance as the result of inability or incapacity, inadvertencies, ordinary negligence or good faith errors in judgment or discretion are not considered misconduct for unemployment insurance purposes unless it is of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of an employer’s interests or an employee’s duties and obligations. [Citation omitted.]
Whether the employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. George’s, Inc., supra.
On appeal, the findings of fact of the Board of Review are conclusive if they are supported by substantial evidence. Id. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. This Court will determine whether the Board could reasonably reach its results upon the evidence before it, but will not replace its judgment for that of the Board even though this Court might have reached a different conclusion based upon the same evidence the Board considered. Sadler v. Stiles, 22 Ark. App. 117, 735 S.W.2d 708 (1987). However, we are not at liberty to ignore our responsibility to determine whether the standard of review has been met. Riceland Foods, Inc. v. Director, 38 Ark. App. 269, 832 S.W.2d 295 (1992). When the Board’s decision is not supported by substantial evidence, this court will reverse. Sadler, supra.
After reviewing the evidence in the present case, we cannot conclude that the Board’s finding is supported by substantial evidence. The employer stated that appellant was discharged for poor job performance, and the evidence showed that appellant was incompetent as a legal secretary. She failed to properly spell check documents, failed to mark dates on her employer’s calendar, and failed to include important documents with a letter sent to an opposing party. In addition, the employer had documented instances of absenteeism and tardiness.
The Board found that appellant’s failure to mark her employer’s calendar on at least two occasions and her failure to include certain documents in a letter sent to an insurance company indicated an intentional disregard of the employer’s interests. We hold that a reasonable mind would not accept this evidence as adequate to support the conclusion that appellant’s conduct was of such a degree or recurrence as to manifest culpability, wrongful intent, evil design, or an intentional or substantial disregard of her employer’s interests or her duties and obligations. The case is reversed and remanded to the Board for such further proceedings as may be necessary to determine the appellant’s eligibility for benefits and the amount and duration of those benefits.
Reversed and remanded.
Mayfield, Neal, and Griffen, JJ., agree.
Pittman and Cooper, JJ., dissent.
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John E. Jennings, Chief Judge.
On March 27, 1996, we handed down an opinion in this case which reversed the decision of the circuit court. It was a panel decision with Judge Neal writing the opinion. Judges Mayfield and Jennings were also on the panel.
On April 10, 1996, Church Mutual filed a petition for rehearing en banc. Under Ark. Code Ann. § 16-12-113 (Repl. 1994) and the corresponding internal rules of this court, an additional three-judge panel (division) was assigned to participate in the rehearing. The additional panel was composed of Judges Cooper, Stroud, and Griffen.
Judge Griffen promptly recused and at this point Judge Neal realized he was disqualified and recused.
On April 22, Church Mutual filed a “Motion to Supplement Petition for Rehearing En Banc” asking that Judge Neal recuse on the basis that his wife is presently being represented in civil litigation by the firm of Wright, Lindsay and Jennings, which also represented the appellants in the case at bar. By the time of the filing of the “Motion to Supplement,” Judge Neal had already recused.
Under rules of this court Judges Pittman and Rogers were designated to take the places of Judges Neal and Griffen in considering the petition for rehearing. Both Judges Pittman and Rogers have recused for unrelated reasons.
We have given considerable thought to what our proper course of action should be in light of the decision of the supreme court in Johnson Timber Corp. v. Sturdivant, 295 Ark. 663-B, 758 S.W.2d 415 (1988), which involved a somewhat similar situation. In Sturdivant, the justice who authored the original opinion later determined that he should have disqualified, even though his failure to do so was inadvertent. Although there are differences between Sturdivant and the case at bar, including the fact that the supreme court sits en banc in every case while we function primarily in three-judge divisions, we have concluded that the remaining judges on the court should also disqualify, that the opinion previously delivered in this case should be vacated, and that we should ask the chief justice of the supreme court to assign three special judges to hear the case anew. As the supreme court noted in Sturdivant this course of action is not absolutely required by United States Supreme Court decisions and furthermore is a decision that rests with each individual judge. Judges Mayfield and Jennings were in the original panel that decided the case. While the remaining three judges available to consider the petition for rehearing, Judges Cooper, Stroud, and Robbins, did not participate in the original decision, they did participate in the approval of the opinion and the vote on publication.
We sincerely regret the delay that this course of action will entail but believe that this is our best choice under the circumstances.
Our previous decision is set aside.
Mayfield, Cooper, Stroud, and Robbins, JJ„ agree.
Neal, Griffen, Pittman, and Rogers, JJ., not participating.
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John B. Robbins, Judge.
Appellant James River Corporation appeals from a decision of the Workers’ Compensation Commission which awarded appellee Terry Walters benefits as the result of a work-related injury. Appellant contends on appeal that the Commission erred in finding that it had failed to meet the second part of the Shippers Transport defense to this claim. We find no error and affirm.
In Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979), the court adopted the rule that a false representation as to one’s physical condition on an employment application will bar recovery under our Workers’ Compensation Act if the employer meets the following three-part test. The employer must show that:
1) the employee knowingly and wilfully made a false representation as to his physical condition;
2) the employer relied on his false representation, which reliance was a substantial factor in the employment; and
3) there was a causal connection between the false representation and the injury.
Shippers Transport, 265 Ark. at 369, 578 S.W.2d at 234.
In the present case the Commission held that the appellant failed to prove by a preponderance of the evidence that it relied upon false representations made by appellee in deciding to hire the appellee. The appellant argues on appeal that the Commission erred in finding that it failed to prove reliance on these false representations, essentially contending that the Commission’s opinion is not supported by substantial evidence.
The evidence before the Commission showed that the appel-lee sustained a work-related injury to his back on June 29, 1993, which appellant initially accepted as compensable. The appellant later denied the claim contending that appellee had a long history of back problems that pre-dated his employment with appellant. Appellant contended that, because appellee falsified information on his employment application, the Shippers Transport defense barred his claim.
The evidence presented to the Commission showed that the appellee filled out an employment application with the appellant on May 14, 1987, and was hired on May 18, 1987. The Commission found that several tacit false representations were made on the application. However, the appellant was not sent to the company physician for a pre-placement health examination until September 21, 1987. Three documents, which the appellant claims were either completed by the appellee or by someone else at his direction, were introduced into evidence. Those documents were: the employment application dated May 14, 1987, and signed by the appellee; a personal history form dated September 21, 1987, which was not signed by appellee; and the pre-placement health examination form. The Commission found that each document was in a different handwriting from the others, and that the personal history and pre-placement documents were not completed by the appellee. Appellee testified that when he was hired in May 1987, the personal history and pre-placement examination documents were not part of his employment application. Appellee admitted that the personal history form contained incorrect information, but stated that he did not fill out this document.
Appellant’s personnel department representative, Jonathan Wright, testified that the appellant relied on the false representations contained in the health questionnaires, but failed to state that it relied on the appellee’s employment application at all. The Commission found it difficult to believe that, when appellant hired appellee in May, it relied on falsehoods in the personal history and pre-placement examination forms because these documents were not filled out until four months after appellee had been hired. Had the appellant presented proof that the appellee had indeed filled out these forms, and that they were completed in May 1987, the Commission may well have decided differently.
Where the sufficiency of the evidence is challenged on appeal in a workers’ compensation case, this court reviews the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission, and will affirm if those findings are supported by substantial evidence. New-some v. Union 16 Truck Stop, 34 Ark. App. 35, 805 S.W.2d 98 (1991). The issue on appeal is not whether the evidence would support findings contrary to those made by the Commission or whether we would have reached a different result had we tried the case on its merits; if reasonable minds could arrive at the conclusion reached by the Commission, we must affirm. College Club Dairy v. Carr, 25 Ark. App. 215, 756 S.W.2d 128 (1988). It is well established that the credibility of witnesses and the weight to be given to their testimony are matters exclusively within the province of the Commission. Wade v. Mr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989).
The appellant failed to present testimony that it relied on the false representations contained in the appellee’s employment application and only presented testimony that it relied on documents which, as the Commission found, appear to have been filled out by someone other than the appellee some four months after the appellee was hired. Appellee admitted that two documents contained incorrect information but denied that he filled out these documents and denied that they were part of his employment application. The Commission’s finding that appellant failed to prove that it relied on false representations made by the appellee when it decided to hire him is supported by substantial evidence. As the Commission pointed out, how could the appellant have relied on these false representations when the documents indicate that they were filled out four months after the appellee was hired. There is substantial evidence that appellant failed to prove that it was entitled to rely on the Shippers Transport defense.
Affirmed.
Cooper and Stroud, JJ., agree.
A question on the appellant’s application form states, “Do you have any physical condition that may limit your ability to perform the job applied for?” This same question was held to be too broad and general to support the Shippers Transport defense in Knight v. Industrial Electric Co., 28 Ark. App. 224, 771 S.W.2d 797 (1989).
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John F. Stroud, Jr., Judge.
On November 8, 1993, Mon-trevel Billings pleaded guilty to conspiracy to deliver cocaine, a Class A felony, and possession of drug paraphernalia, a Class C felony. The court sentenced him to twenty years in the Arkansas Department of Correction with fifteen years suspended on the first felony and ten years with five years suspended on the second. The conditions of the suspension ordered that he not possess or use any controlled substance, and that he not violate any federal, state, or municipal law. Appellant was incarcerated, released on parole, and subsequently arrested for possession of cocaine with intent to deliver. The State filed a petition to revoke the suspended sentences, and the parole board revoked his parole. At the revocation hearing, the suspended sentences were revoked by the circuit judge. Appellant was later tried and acquitted of the charge of possession of cocaine with intent to deliver. Appellant raises four points on appeal. We find no error and affirm.
Appellant filed two motions with the court before the revocation hearing. First, he asked that the petition to revoke be dismissed as a double jeopardy violation because he already had been rein-carcerated for his parole violation. He also asked the court to require the State to disclose the name of the confidential informant, stating that the Confrontation Clause of the United States Constitution and its counterpart in the Arkansas constitution entitled him to subpoena the person for the hearing. Both motions were denied.
Detective Dennis Alexander of the narcotics unit of the Fort Smith Police Department gave the only testimony at the hearing. He testified that he had assisted in the preparation of an affidavit for a warrant to search room 11 at the Holiday Motel and a 1981 maroon Oldsmobile Cutlass bearing Oklahoma plates. A copy of the affidavit was introduced into evidence.
The affidavit referred to information from a confidential informant who had previously provided information about illicit drug traffic in Fort Smith and whose information had led to six arrests for possession or sale of crack cocaine. The confidential informant told police that appellant was dealing in crack cocaine and that the informant was in the motel room with appellant during the late night hours of July 25, 1994. He observed several sales of crack cocaine, observed appellant take some of the money and place it under the seat of a 1981 maroon Oldsmobile Cutlass parked in front of room 8, and observed a further quantity of crack cocaine being offered for sale by appellant. Police investigation and surveillance of the motel revealed that room 11 was registered to Tom Benton of 505 North 19th Street, Fort Smith, and that appellant, on his last arrest report, had listed his address as 505 North 19th and his mother’s name as Maggie Benton.
Detective Alexander testified that he had participated in the execution of the search warrant at 6:00 a.m. on July 26, 1994. Appellant, who had been sleeping and was the only person in the room, opened the door for the police when they could not force it. Neither the police nor their drug-sniffing dog found any drugs in the room. The police opened the car door with a key found in the room in a pair of pants. The detective testified that the appellant said the pants belonged to him. Initially the police did not find drugs in the automobile; the dog, however, alerted to the dash around the stereo system. Officers partially dismantled the dash and disassembled a fuse or junction box beneath and to the left of the brake pedal. There they found a paper towel which held three rocks of cocaine.
Under cross-examination, Detective Alexander said that no officers were outside the room when the confidential informant was there but that officers constantly drove by to keep surveillance from the time the informant left the room until the warrant was served. Appellant was not observed leaving the room during the surveillance. Detective Alexander also testified that the affidavit or reports referred to a second person in the room with Billings who had participated in the sales. Appellant’s counsel asked the name of the second person, but the court sustained the State’s objection on the grounds of relevancy. Appellant’s counsel said he was attempting to show that the person in possession of the drugs was the other person in the room. The court appropriately noted that no drugs were found in the room.
Appellant moved to dismiss after the State rested, stating that nothing showed that the vehicle belonged to him, no evidence connected him with the vehicle, and the car keys could have belonged to the other man in the room the previous night. He stated that he would like to have the other man present to testify about ownership of the car. The trial judge denied the motion and found that the State had proven its case by a preponderance of the evidence, noting that the keys were found in the pants and that the cocaine was found in a vehicle over which appellant obviously had control.
Appellant’s first point on appeal is that the evidence was insufficient to support the finding that he violated the terms of his suspended sentence. On appeal of a revocation, the evidence must be viewed in the light most favorable to the State. Reese v. State, 26 Ark. App. 42, 44, 759 S.W.2d 576 (1988). Evidence that is insuffi cient to support a criminal conviction may be sufficient to support a probation revocation. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). On appeal, we will not reverse unless the trial court’s findings are clearly against the preponderance of the evidence, giving due regard to the trial court’s superior position to determine credibility of the witnesses and the weight to be given their testimony. Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).
The issue here is similar to that in Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980), a revocation case where police executing a warrant to search found marijuana on top of the refrigerator and under the couch in Mr. Harris’s apartment. Mr. Harris argued on appeal that the trial court’s finding that he had violated his probation was against the preponderance of the evidence because there was no evidence linking him to the contraband. This court rejected his argument, stating that “[t]he evidence adduced at trial may not have been sufficient to convict one charged with possession of a controlled substance, but it was sufficient for the trial judge to determine that appellant had violated the terms of his probation.” Harris v. State, 270 Ark. at 636. In the case now before us, the evidence viewed in the light most favorable to the State showed that appellant possessed a key to an automobile in which police found cocaine upon executing a warrant to search. We hold that the trial court’s decision to revoke appellant’s suspended sentence was not clearly against the preponderance of the evidence.
As his second and third points, appellant asserts that the trial court erred in refusing to require disclosure of the confidential informant and of the other person who was present when the drug sale occurred. Appellant contends that he was denied the right to confront the confidential informant, whose information in the affidavit might have been considered by the court as evidence that appellant possessed cocaine. The abstract of the court’s findings and ruling, however, clearly shows that appellant’s suspended sentence was revoked because he had the keys to a vehicle in which cocaine was found. Our supreme court has stated that disclosure of an informant’s identity is not required where the defendant was charged only with possession and the informant merely supplied information leading to the issuance of the search warrant. Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994). In the case now before us, where appellant’s suspended sentences were revoked and the informant merely supplied information used in the affidavit supporting the warrant to search, there was no requirement to disclose the identity of the informant.
Similarly, appellant’s request for the identity of another person allegedly present in the room was not relevant to appellant’s violation of conditions of his suspended sentences. He argues that testimony by this other person could have shown that it was not appellant, but this person, who had access to the keys and ownership of the drugs. His bare assertions, however, are insufficient to preserve a challenge on appeal to the trial court’s discretionary power to exclude evidence. Cf. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993) (where defendant wanted to convince the jury that another person might have committed the crime for which he was being tried, evidence of commission of a similar crime in another state was insufficient without more to warrant admission).
As his final point, appellant states that the revocations of both his parole and his suspended sentence for the same conduct constituted a violation of the doctrines of double jeopardy and due process. Because he presents no argument or authority as to the due process claim, we address only the double jeopardy argument, dismissing the due process claim as speculative and not supported by any reasonable argument or authority. See Milholland v. State, 319 Ark. 604, 893 S.W.2d 327 (1995).
Appellant’s argument that the revocation of his parole and suspended sentence for the same behavior violates double jeopardy is without merit. The revocation of appellant’s parole and the revocation of his suspended sentence resulted in appellant’s being punished for his original offenses; neither proceeding imposed a separate punishment for the behavior that was the catalyst for the revocation proceedings. Neither parole revocation nor suspended sentence revocation is a stage of a criminal prosecution, see Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992) (citing Gagnon v. Scarpelli, 411 U.S. 788 (1973); and Pyland v. State, 302 Ark. 444, 790 S.W.2d 178 (1990)). The Double Jeopardy Clause protects defendants in criminal proceedings only against multiple punishments or repeated prosecutions for the same offense. Lawrence, supra, (citing United States v. Dinitz, 424 U.S. 600 (1976)). Thus, appellant has no valid double jeopardy claim.
Affirmed.
Cooper and Robbins, JJ., agree.
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John B. Robbins, Judge.
Appellants Jackie S. Williams and Thomas L. Williams entered conditional pleas of guilty to the manufacture of marijuana, possession of a controlled substance, and possession of drug paraphernalia pursuant to Rule 24.3(b) of the Arkansas Rules of Criminal Procedure. Both Mr. Williams and Mrs. Williams received two years’ probation and were fined $2,000.00. They have filed a single appeal, in which they assert that the trial court erroneously refused to suppress the incriminating evidence that the police seized from their home. We find no error and affirm.
The evidence shows that Officer Earl Hyatt interviewed Alan Hudson after Mr. Hudson was arrested on July 8, 1992. Officer Hyatt testified that Mr. Hudson told him that he had been living with Mr. Williams and that some marijuana plants were growing on the second floor of the residence. Based on this information, Officer Hyatt and Officer Archie Rousey proceeded to the Williams’ home for observation. The officers stopped on the highway in front of their house and used binoculars to look through an upstairs window, but were unable to identify anything that resembled marijuana.
On the following morning, Officers Hyatt and Rousey returned to the highway in front of the Williams’ property. They again attempted to locate contraband by looking into the upstairs window through binoculars. This time the officers were able to see a plant inside the window, but could not determine whether it was a marijuana plant. In order to get a closer look, the officers moved to what Officer Hyatt described as “a common driveway that appeared to be shared by three residences off Highway 412, including the Williams’ residence.” However, upon further observation from this location, they were still unable to identify the plant.
While on the “common driveway,” Officer Hyatt noticed someone looking at him from another window of the Williams’ residence. At this time, he decided to approach the house and attempt to speak with this person. Upon arriving at the front door, Officer Hyatt was met by the Williams’ fifteen-year-old son, Patrick. He asked Patrick whether his parents were growing marijuana upstairs and Patrick replied that he did not know because he was not allowed to go there. The officers expressed doubt about this and again asked if Patrick was aware of any marijuana in the house. This time, Patrick looked down, nodded his head, and admitted that two or three marijuana plants were growing in the upstairs area of the house.
Based on the above information, Officer Rousey left to obtain a search warrant. Another officer was called to the scene while Officer Rousey was away, and he and Officer Hyatt watched over Patrick during this two-hour period. Officer Rousey testified that he was with Patrick on the porch, and that he followed him inside and sat beside him on the couch while Patrick watched television. Patrick would occasionally get up and go into the kitchen and get something to drink. Officer Hyatt followed and watched him on these occasions. Based on an affidavit prepared by Officer Rousey, Officer Rousey obtained a search warrant, and upon returning to the Williams’ home a search was executed. During the search, the officers seized four marijuana plants, a pipe, and some poppies believed to belong to the opiate family.
For reversal, the appellants argue that the incriminating evidence was seized pursuant to an unreasonable search and that it should have been suppressed. The appellants specifically contend that it was unreasonable for the officers to look through the upstairs window with binoculars; that the officers’ warrantless search of the house was not justified; and that the officers’ entry into the house was unlawful. The appellants further assert that the search warrant was based on illegally obtained information, and thus all items seized were inadmissible as the fruits of a poisonous tree.
When this court reviews a trial court’s ruling on a motion to suppress evidence, we make an independent determination based on the totality of the circumstances. Freeman v. State, 34 Ark. App. 63, 806 S.W.2d 12 (1991). We will reverse a trial court in this regard only if the ruling was clearly erroneous. Id.
Initially, we find that any asserted impropriety regarding the officers’ use of binoculars has not been preserved for our review. This is because, at the suppression hearing, the appellants never raised this issue as a ground on which to suppress the evidence. It is well established that we will not address arguments raised for the first time on appeal. Oliver v. State, 322 Ark. 8, 907 S.W.2d 706 (1995). The appellants contend that this issue was raised before the trial court, but in light of our review of the record we cannot agree. The appellants also assert that it was not necessary to raise this argument in the trial court because, as our supreme court stated in Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982), “it is elementary that the State must prove that a warrandess intrusion. . .was not in violation of the Fourth Amendment.” Even in light of the above standard we believe that, in order to preserve its argument for review, the appellants were required at least to inform the trial court of its contention that the officers’ use of the binoculars constituted a search or intrusion.
We next address the appellants’ assertion that the officers conducted an unlawful search when they entered the Williams’ home to keep Patrick under observation and ensure that no evidence was destroyed. We hold that, even if the officers’ entry into the home was without consent, this would not warrant suppression of any evidence because the officers never conducted any search or discovered any contraband until Officer Rousey returned with the search warrant and a search was conducted pursuant to the warrant. Probable cause for the issuance of the search warrant was premised on evidence obtained prior to the officers’ entry into the home, and thus the entry was wholly unrelated to information upon which the search was based. See Segura v. United State, 468 U.S. 796 (1984). The appellants have failed to demonstrate that any harm resulted from the officers’ warrantless entry, and we find that the trial court did not err in refusing to suppress evidence on this basis.
From our review of the record, we hold that the police officers in the instant case acted lawfully with regard to all remaining aspects of the search in question. The appellants concede in their brief that the officers had the right to enter the common driveway in front of the house. After doing so, the officers noticed someone looking at them through a window, and met this person at the front door. Upon discovering that he was the Williams’ son, the police informed him that they had information regarding illegal activities at the house, and Patrick admitted as much. We cannot find that these steps taken by the police were unreasonable.
Once Officer Hyatt obtained the incriminating admission from Patrick, Officer Rousey used this information, along with the accusation by Mr. Hudson and the officers’ observation of the plants, in order to obtain a search warrant. The above information constituted probable cause to support the warrant, and thus the warrant was properly issued and executed.
We find that the trial court’s failure to suppress the contested evidence was not clearly against the preponderance of the evidence. Therefore, we affirm.
Affirmed.
Cooper and Stroud, JJ., agree.
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JAMES R. Cooper, Judge.
The appellant was convicted in a jury trial of battery in the first degree and sentenced to seven years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in failing to give jury instructions AMCI 2d 704 on the use of physical force in defense of a person and AMCI 2d 705 on the use of deadly physical force in defense of a person. We disagree and affirm.
The appellant admitted that he had stabbed the victim, Ferbia Allen, a correctional officer at the Tucker Maximum Security Unit. The appellant testified, however, that he was defending himself from unlawful actions of the correctional officers. At the close of the evidence, the appellant proffered the instructions on the justification defenses. The trial court found that the testimony was insufficient to warrant the giving of either instruction.
The victim, Sergeant Allen, testified that he had gone to the appellant’s cell in punitive isolation on the day of the incident to question the appellant about throwing something on Officer Coleman, a correctional officer under Sergeant Allen’s supervision. After going to the appellant’s cell, Sergeant Allen discovered that it was flooded and needed to be cleaned. Sergeant Allen testified that he handcuffed the appellant and brought him out of his cell. He further testified that while he and the appellant were standing in the hallway, he heard a noise in the control room and stepped away from the appellant to investigate. The appellant then slipped out of his handcuffs and stabbed Sergeant Allen in the side with a homemade knife or shank. Sergeant Allen testified that the appellant then ran back into his cell, got the broom the porter was using, and began swinging it. Although he had been stabbed, Sergeant Allen managed to kick the appellant’s cell door closed. He testified that he was not armed with a night stick at the time of the stabbing. He further testified that he had not had any problems with the appellant prior to the stabbing.
The appellant testified that he and the victim had a number of problems prior to the incident. He testified that the victim used abusive language, failed to feed him, failed to give him exercise yard call, and failed to release him from his restraints so that he could use the restroom.
The appellant testified that on the day of the incident he was unable to turn the water off in his cell and that Officer Coleman refused to turn it off for him. He stated that he subsequently threw some of his food on Officer Coleman’s shirt. The appellant testified that Sergeant Allen eventually came to his cell and turned his water off. The appellant testified that Sergeant Allen handcuffed him and brought him out of the cell and that the two of them stood outside the cell while Officer Coleman was at a nearby control booth.
The appellant testified that he and Officer Coleman began to exchange words and that Officer Coleman subsequently came out of the control booth armed with a night stick. The appellant testified that Officer Coleman said, “It’s dying time,” and raised his night stick. The appellant explained that he then slipped from his handcuffs, raised his knife and told the officers to get away from him. He stated that he stabbed Sergeant Allen when he came toward him because he thought Sergeant Allen was going to hit him with his night stick. The appellant acknowledged, however, that Sergeant Allen did not come toward him with his night stick until he had pulled out his knife. He further testified that he pulled the knife to keep Officer Coleman from hitting him when he came out of the control booth. He testified that he retreated to his cell and used a broom to fight off the advances of the correctional officers. The appellant testified that he was eventually able to close the gate to his cell to prevent the officers from entering.
An inmate, Revis Leon Hamilton, testified that he overheard Sergeant Allen threaten to “bust his [appellant’s] head the first chance he got.” He also testified that the officers were armed with night sticks.
Another inmate, Danny Floyd, testified that he was in a cell near the appellant’s on the day of the incident. He testified that he witnessed Officer Coleman run out of the control booth with his night stick, heard a scream and then witnessed the officers run back into the control booth. He stated that Sergeant Allen was “holding his gut.”
AMCI 2d 704 is based on the defense provided by Arkansas Code Annotated § 5-2-606 (Repl. 1993), which states:
(a) A person is justified in using physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force that he reasonably believes to be necessary. However, he may not use deadly physical force except as provided in § 5-2-607.
Arkansas Code Annotated 5-2-607 provides:
(a) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is:
(2) Using or about to use unlawful deadly physical force.
Where the defendant has offered sufficient evidence to raise a question of fact concerning a defense, the instructions must fully and fairly declare the law applicable to that defense. Lair v. State, 19 Ark. App. 172, 718 S.W.2d 467 (1986). However, there is no error in refusing to give a jury instruction where there is no basis in the evidence to support the giving of the instruction. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991).
Here, we find that the evidence does not warrant the giving of either instruction. The instruction on the use of physical force in self-defense was not appropriate because there was no evidence from which the jury could have found that the appellant responded with anything other than deadly force since he admitted to stabbing the victim with a knife. Moreover, the appellant testified that the victim did not advance toward him with his night stick until he had slipped out of his handcuffs and brandished his knife. Once the appellant threatened him, Sergeant Allen could lawfully use non-deadly physical force against the appellant. See Ark. Code Ann. § 5-2-605(2) (Repl. 1993). Thus, the giving of the instruction on the use of deadly physical force in self-defense was not warranted because the evidence did not show that the appellant reasonably believed that Sergeant Allen was using or about to use unlawful deadly physical force.
Affirmed.
Pittman and Rogers, JJ., agree.
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Melvin Mayfield, Judge.
This is an appeal from an order of the Workers’ Compensation Commission which affirmed and adopted the administrative law judge’s decision. The law judge found that the appebee proved by a preponderance of the evidence that she sustained a compensable injury to her right shoulder on October 8, 1993, and that she was temporarily totally disabled from October 9, 1993, to February 14, 1994. The law judge also found that the appellant failed to prove by a preponderance of the evidence that the appellee misrepresented her physical condition when applying for employment.
The appellee is a twenty-nine-year-old nurse. On October 8, 1993, she went into a patient’s room to lower the bed with the electric button, but the bed did not go down. She reached under the bed, in a squatting position reaching forward with her right arm, to find a lever to lower the bed, and her right shoulder dislocated. The appellee testified that, because she is a medical person and knew what to do, she put the shoulder back in place. The appebee worked about two more hours and then, because of the pain, went to the emergency room.
The appellee testified that in the past she had problems with her right shoulder. In August 1992, her shoulder dislocated while she was skydiving, and she had to go to the emergency room to have it put back in place. Ten days later she was fine, and a week later she was not having any real problems with her shoulder. In January 1993, the appellee’s shoulder dislocated again when a man with whom she was country dancing grabbed her and yanked her shoulder out. The appellee put it back in and was fine a few days later.
The appellee testified that she had no problems with her shoulder from a week after the 1992 incident until January 1993; that she never had any problems with her shoulder between April and June 1993 in her duties as a housekeeper; and that she had no problems between June 1993, when she began working at Doctors Hospital and later at St. Vincent, up through October 8, 1993. The appellee testified further that in June 1993 her shoulder was not a concern; it had never really hindered her life. The appellee testified that the incident at St. Vincent was much more painful than the previous incidents and that, on a scale from one to ten, the previous incidents rated a two or three, but the October incident was an eight or nine.
Appellant’s first two arguments contend that the appellee’s injury is not compensable. Appellant argues that the appellee’s injury is not compensable because it does not meet the definition of a compensable injury as defined by Act 796 of 1993, codified as Ark. Code Ann. § 11-9-102 (Supp. 1995), which must be “strictly” construed, Ark. Code Ann. § 11-9-704(c)(3) (Supp. 1995), and because the incident only made her pre-existing condition symptomatic.
Appellant contends that the incident at work caused no physical harm to the appellee’s body; that the incident did not change the underlying shoulder condition; and that it was merely coincidental that the injury occurred at work. Appellant says the appellee had a pre-existing condition making her shoulder apt to dislocate at any time.
When reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission and affirm that decision if it is supported by substantial evidence. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979). The issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Bearden Lumber Company v. Bond, 1 Ark. App. 65, 644 S.W.2d 321 (1983).
Arkansas Code Annotated § 11-9-102 (Supp. 1995) provides:
(5) (A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body . . . arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is “accidental” only if it is caused by a specific incident and is identifiable by time and place or occurrence [.]
Here, there is evidence that the appellee dislocated her shoulder on October 8, 1993, while reaching under a patient’s bed. The appellee continued to work for no more than two hours and then went to the emergency room where she was given medicine for pain and a sling. The appellee testified that the pain from the dislocation was 8 or 9 on a scale of 10. Although appellee had other episodes in her past when her shoulder popped out, the employer “takes the employee as he finds him,” and employment circumstances that aggravate pre-existing conditions are compensable. Public Employee Claims Division v. Tiner, 37 Ark. App. 23, 822 S.W.2d 400 (1992).
In discussing the compensability of the appellee’s injury the law judge stated:
Had respondent shown that claimant was continuously symptomatic from January 1993 until October 1993 or that she received medical care on several occasions between these dates, I might be inclined to find that the October 8, 1993, incident was a recurrence of a non-compensable, preexisting condition stemming from the August 1992 or January 1993 injuries. No such evidence was introduced, however. The case therefore appears to be one in which a claimant with a pre-existing infirmity is injured as a result of employment activities that probably would not have caused injury to someone without the pre-existing disorder. Such injuries remain compensable under Arkansas’s new workers’ compensation law.
Based on the evidence and considering the new law, we think the Commission’s decision is supported by substantial evidence.
Appellant also argues that the appellee is not entided to workers’ compensation benefits because she misrepresented her physical condition on her employment application, and her claim for benefits is therefore barred by the rule of law adopted in Shippers Transport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). The appellant argues that the appellee revealed her complete medical history except her right shoulder problem and that Marilyn Mas-ingill, who made the decision to hire the appellee, testified that had she been aware of appellee’s shoulder problem, she would not have hired her if accommodations could not have been made for the appellee to meet her job requirements.
In Shippers our supreme court held that a false representation on a employment application bars recovery under our workers’ compensation law when three factors are established: (1) the employee must have knowingly and wilfully made a false representation as to her physical condition; (2) the employer must have relied upon the false representation, and this reliance must have been a substantial factor in the hiring; and (3) there must have been a causal connection between the false representation and the injury.
Here, the medical history form which was completed by the appellee asked:
5. Have you had any serious injuries, including broken bones, head injuries, back strain or recurring pain in back or neck? If “Yes,” explain, giving approximate date of onset and recurrences.
7. Do you have any physical limitations in regard to movement of fingers, hands, arms, legs, back? Have you ever worn a back brace? Have you worn a knee brace?
In response to question 5, the appellee disclosed that she had ruptured her flexor tendon on the right hand and had sustained a wrist injury, both of which required surgery. Question 7 was answered in the negative.
The appellee testified that the document did not specifically ask anything about a shoulder injury and that at the time she filled out the application she was not having any problems with her shoulder. She testified that after the first incident in 1992 she had no problems until January 1993 and that she experienced no problems with her shoulder between April and October 1993. She said she did not believe that her shoulder was really a concern and that it had never really hindered her life. The appellee testified further that, to her, a serious injury requires surgery, hospitalization and/or extensive rehabilitation. She said that when she was interviewed by Marilyn Masingill her physical condition was not the focus of any part of the verbal interview and she was .not asked about any shoulder problems.
The administrative law judge, in an opinion which was affirmed and adopted by the foil Commission, held that the evidence did not prove that the appellee knowingly and wilfully made a false representation on the employment application with respect to her physical condition.
We cannot conclude that reasonable minds, with the same evidence before them, could not reach the Commission’s conclusion.
Affirmed.
Stroud and Neal, JJ., agree.
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Judith Rogers, Judge.
The appellant, Reola Hancock, has appealed from a summary judgment in favor of appellee, First Stuttgart Bank and Trust Co., in which it was held that appellant’s complaint for the tort of outrage was barred under the doctrine of res judicata. For reversal, appellant contends that the application of that doctrine was improper under the circumstances of this case. Because the specific argument raised by appellant is without merit, we affirm.
In February of 1994, appellant filed suit against appellee in federal court pursuant to 15 U.S.C.A. § 1691, the Equal Credit Opportunity Act (ECOA). She alleged that appellee had violated her right to be accorded equal credit opportunity in that appellee had rejected her request for a home mortgage loan because she was employed by the owner of Orbit Fluid Power Company. Appellant also complained that appellee’s conduct was outrageous, malicious, and willful, and had caused her humiliation, degradation and emotional distress. She requested compensatory and punitive damages.
Appellee responded to this complaint by filing a motion to dismiss the federal cause of action pursuant to Fed. R. Civ. P. 12(b)(6), contending that the ECOA does not bar discrimination on the basis of an applicant’s place of employment. By order of March 31, 1994, the district court dismissed appellant’s complaint under the ECOA. The court agreed with appellee’s assertion that an applicant’s place of employment was not a protected category within the meaning of the Act.
On May 23, 1994, appellant initiated the present action, alleging essentially identical facts to those alleged in the federal court complaint. Appellant again alleged outrageous conduct on the part of appellee and demanded compensatory and punitive damages.
Appellee raised the affirmative defense of res judicata in its answer and in a motion for summary judgment. In support of its motion for summary judgment, appellee submitted copies of appellant’s complaint in federal court, the federal district judge’s order setting out his findings, and the judgment dismissing appellant’s complaint. In opposition to the motion for summary judgment, appellant argued that the federal court dismissal was not res judicata to this action because her state law tort claim had not proceeded to trial. Appellant argued that the only issue decided by the federal court was whether she was entitled to relief under the ECOA and that she had not had a full and fair opportunity to litigate her claim of outrageous conduct. The trial court entered summary judgment for appellee on June 21, 1994. This appeal followed.
On appeal, appellant directs our attention to the decision in Swofford v. Stafford, 295 Ark. 433, 748 S.W.2d 660 (1988), where the supreme court stated:
The claim preclusion part of the doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies.
Id. at 434, 748 S.W.2d at 661. In her brief, appellant concedes that the first suit resulted in a judgment on the merits; that the first suit was based upon proper jurisdiction; and, that both suits involved the same parties. Appellant’s argument on appeal is directed only toward the third and fourth prongs of the test. Appellant maintains that the federal order of dismissal did not address her tort claim and that, as a consequence, that claim was not litigated in federal court. She then argues that the tort claim was not “fully contested in good faith” in federal court because appellee did not file an answer responding to the tort claim. She argues that appellee’s failure to answer resulted in that issue not being joined, thereby depriving her of the opportunity to litigate that claim in the federal court.
The argument raised by appellant is a narrow one. It is premised on the assertion that appellee’s failure to file an answer prevented litigation of the tort claim in federal court. We cannot agree that appellant was left without the opportunity to litigate the tort claim in federal court for the reason advanced by appellant. In the first place, appellant has cited no authority and has provided no meaningful argument for the proposition that a party’s failure to answer works as an impediment to obtaining relief on a claim. We will not address arguments unsupported by convincing argument or authority. Hicks v. Madden, 322 Ark. 223, 908 S.W.2d 90 (1995). Secondly, and more significandy, a federal court has the authority to entertain supplemental jurisdiction over pendent state claims even though it dismisses the claims over which it has original jurisdiction. 28 U.S.C.A. § 1367. It is recognized that pendent jurisdiction may continue even after the federal claims upon which jurisdiction is based have been dismissed or rendered moot. Baker v. Farmers Elec. Co-Op., Inc., 34 F.3d 274 (5th Cir. 1994). While pendent jurisdiction is a matter of discretion, Wright v. Associated Ins. Companies, Inc., 29 F.3d 1244 (7th Cir. 1994), district courts enjoy wide discretion in determining whether to retain supplemental jurisdiction over a state claim once all federal claims are dismissed. Noble v. White, 996 F.2d 797 (5th Cir. 1993). It thus cannot be said that appellant could not have proceeded with her claim in federal court.
The federal court’s order of dismissal was silent with regard to the state court claim. The dissent seizes upon this fact and maintains that the “could have been litigated” requirement was not met in this case because the federal court failed to take any action on the state tort claim. The dissent reasons that, when the basis of the first court’s exercise of jurisdiction is discretionary, then the “could have been litigated” requirement is met only if the first court does take some action on the claim. That, however, is not an argument that was raised below, nor is it one that is advanced in this appeal. As so amply demonstrated by the dissenting opinion’s quotation of appellant’s argument, it is her sole contention that it was the appellee’s failure to answer the claim that precluded litigation of the claim, not the inaction of the federal court. As we have said, and as indicated by the dissenting opinion itself, appellant states her argument for reversal in very narrow terms. Under long-standing procedure, this court is to consider only the arguments raised by the parties, and we are not to consider reversing a trial court for unargued reasons. Schmidt v. McIlroy Bank & Trust, 306 Ark. 28, 811 S.W.2d 281 (1991). We choose the better practice to confine our review to the issues raised and to not delve into matters which could have been argued, but were not. Contrary then to the dis sent’s suggestion, our unwillingness to broaden the scope of the argument presented is not a matter of refusing to conduct further, in-depth research, but rather it is a question of reviewing the case in the manner in which it has been argued.
Moreover, the dissent has failed to demonstrate how a court’s failure to act on a claim, particularly when it does not appear that the court was ever asked to address it, necessarily leads to a conclusion that the claim could not have been litigated in that forum. The cases cited by the dissent as being supportive of its view are factually distinguishable from the case at bar and, therefore, provide no compelling authority for deciding such an issue, even if the argument were before us. In Johnson v. State, 631 N.Y.S.2d 795 (Ct. Cl. 1995), the issue before the court was whether the claimant’s cause of action in negligence was precluded by a summary judgment obtained by the defendants in federal court, when the negligence claim was not stated as a basis for relief in the federal case. In Andujar v. National Property and Casualty Underwriters, 659 So. 2d 1214 (Fla. App. 1995), the issue to be decided was whether the plaintiff’s statutory claim of discrimination under state law was barred by principles of res judicata when the defendant had prevailed in federal court in an action brought under Title VII of the Civil Rights Act of 1964. As in Johnson v. State, supra, the state law claim in Andujar was never joined in the federal lawsuit. Of course, here, the state tort claim was brought in the federal court suit. Neither Johnson nor Andujar then stand for the proposition that the “could have been litigated” prong is not satisfied when the first court fails to act. Neither court was presented with that issue, and for that matter neither are we, because it is not an argument that has been raised.
Also, implicit in the dissent’s citation to Seaboard Finance Co. v. Wright, 223 Ark. 351, 266 S.W.2d 70 (1994), is the alternative idea that the federal court dismissed all claims without prejudice. We quickly point out that whether a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is with or without prejudice is a question governed by federal law, not Arkansas law. And again, the dissent touches upon an argument that is not made by the parties to this appeal. In simple truth, the effect of the federal court’s dismissal on the state court claim is not an issue that is before us, and we are unwilling to assume, particularly without benefit of argument from either party, that the federal court, by its silence, dismissed appellant’s state court claim without prejudice.
Affirmed.
Jennings, C.J., Bullion, Sp. J., Pittman, and Robbins, JJ., agree.
Mayfield, J., dissents.
COOPER, J., not participating.
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] |
Sam Bird, Judge.
Howard Davis was convicted in Rock-port City Court for driving while intoxicated, second offense, and for failing to dim lights. He appealed to the Hot Spring County Circuit Court and was tried without a jury. The trial judge found him not guilty of failing to dim lights but found him guilty of the DWI charge. Davis was sentenced to seven days in jail and a fine of $1,135, his driver’s license was suspended for six months, and he was ordered to attend driver-safety school and AA meetings. On appeal Davis contends that the trial court deprived him of his right to a jury trial; the State concedes error. We reverse and remand for a new trial.
The following colloquy occurred at the beginning of Davis’s trial in the Hot Spring County Circuit Court.
The Court: All right. Are y’all going to work on a plea agreement or are you ready to try it?
Mr. Walthall (Prosecutor): I thought we were here to try it. Am I right?
Ms. Lemons (Defense Counsel): Yeah.
The Court: Everyone who is going to testify then, raise your right hands.
(All witnesses were sworn by the Court.)
The Court: Have a seat at the counsel table. Mr. Walthall, you may call your first witness.
The Sixth Amendment to the United States Constitution provides that a criminal defendant has the right to a trial by jury. The right of trial by jury is also preserved by Ark. Const, art. 2, § 10, which states that the right remains inviolate and extends to all cases at law. Article 2, section 7, of the Arkansas Constitution further directs that a jury trial may be waived by the parties in all cases in the manner prescribed by law.
A criminal defendant bears no burden of demanding a trial by jury under our constitution and law. Calnan v. State, 310 Ark. 744, 841 S.W.2d 593 (1992), quoting Elmore v. State, 305 Ark. 426, 809 S.W.2d 370 (1991) (holding that there was “no need for Elmore to demand or move for a trial by jury, much less obtain a ruling on the issue”). This assures that the jury-trial right is not forfeited by inaction on the part of a defendant, and the contemporaneous-objection rule is inapplicable to this circumstance. Id. It is the trial court’s burden to ensure that if there is a waiver of the right to trial by jury, the defendant waives the right in accordance with the Arkansas Rules of Criminal Procedure. Grinning v. City of Pine Bluff, 322 Ark. 45, 907 S.W.2d 690 (1995); Maxwell v. State, 73 Ark. App. 45, 41 S.W.3d 402 (2001). Although there are no jury trials in municipal court, all appeals from judgments in municipal court are de novo to circuit court in order that the right of trial by jury remains inviolate. Ark. Code Ann. § 16-17-703 (Repl. 1999).
Rule 31.1 of the Arkansas Rules of Criminal Procedure states that a defendant in a criminal case may not waive a trial by jury unless the waiver is assented to by the prosecuting attorney and approved by the court. Additionally, Rule 31.2 specifies the following:
Waiver of trial by jury: personal request.
Should a defendant desire to waive his right to trial by jury, he may do so either (1) personally in writing or in open court, or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.
Pursuant to the constitution and these two rules, a defendant is entitled to be tried by a jury without even making a motion: this holding is the common-sense reading of the constitution and the rules of criminal procedure. Winkle v. State, 310 Ark. 713, 841 S.W.2d 589 (1992).
In Reaser v. State, 47 Ark. App. 7, 883 S.W.2d 851 (1994), we voiced our concern that the holdings in Calnan and Winkle could lead to an abuse of the criminal-justice system, noting that this construction of the Arkansas Constitution and Rules of Criminal Procedure could encourage a defendant to sit silently through a non-jury trial, wait to see if he might obtain a favorable decision, and only raise the jury-trial issue later if the non-jury trial resulted in a conviction. In Reasor we stopped short of holding that such an abuse had occurred, concluding that the judicial system perhaps must pay this price to ensure that a defendant is not deprived of the fundamental constitutional right to trial by jury.
Again, in the case at bar, we are concerned about what may be abuse of the criminal-justice system. While a defendant in a criminal case shall be afforded the right to a jury trial in every instance, it does not follow that an attorney representing such a defendant is relieved of the responsibilities imposed upon him or her by the Model Rules of Professional Conduct. For example, Rule 3.3 requires lawyers to be candid toward the tribunal. A comment to that rule provides, in part, that “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” Commentary, Model R. Prof’l Conduct 3.3. Rule 3.1 prohibits lawyers from bringing or defending a claim unless there is a non-frivolous basis for doing so. While a lawyer has a duty to use legal procedure to the fullest benefit of his client, the lawyer also has a duty “not to abuse legal procedure.” Commentary, Model R. Prof’l Conduct 3.1.
In Reaser, when the court inquired whether the parties were ready for trial, defense counsel informed the court that his client desired a jury trial, but the court denied the request because counsel had failed to notify the court forty-eight hours before the trial, as required by a written notice that the court had earlier provided to defense counsel. In the present case, however, when the court inquired as to whether the parties were ready for trial, defense counsel simply replied, “Yeah,” making no mention of her client’s desire for or right to. a jury trial.
Counsel’s simple statement to the trial court that her client desired a jury trial would have saved the time devoted to the non-jury trial by the trial court, prosecuting attorney, defense counsel, witnesses, and court reporter; the time devoted by the court reporter to the preparation of an appeal transcript, and the expense related thereto; the time and expense of defense counsel to abstract the record and prepare a brief; the time and expense of the attorney general’s office to respond; the time expended by deputy clerks of this court who received and filed all the documents; and the time devoted by three judges of this court to read the briefs and prepare an opinion on an issue so well settled that the State concedes error.
Of course, we are not permitted to assume that defense counsel knew, when the trial judge inquired if the parties were ready for trial, that her client wanted a jury trial. Consequently, as in Reaser, we refrain from concluding that defense counsel in this case has abused the system. On the other hand, if counsel did know of her client’s desire for a jury trial, we wonder how her failure to so advise the court does not violate the lawyer’s responsibility to exercise candor toward the court and to refrain from abusing legal procedure as required by the Model Rules of Professional Conduct.
Nonetheless, our supreme court has made it abundantly clear that it is the duty of the trial court either to afford the defendant the right to a jury trial whether the defendant demands it or not, or to ensure that the defendant has properly waived this right. As the record contains no evidence that Davis was informed by the court of his right to be tried by a jury, or that he executed a knowing, voluntary, and intelligent waiver of this right, we hold that he was deprived of his constitutional right to trial by jury. We therefore reverse and remand for a new trial.
Reversed and remanded.
Vaught and Baker, JJ., agree.
The record indicates that defense counsel is court appointed. Consequently, all the expense related to this appeal, including attorney fees, is borne by the State.
It is possible that appellant’s desire for a jury trial developed and was communicated to his counsel only after his conviction and sentencing at the bench trial.
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Andree Layton Roaf, Judge.
Following a bench trial, James S. McClellan was convicted of rape and was sentenced to fifteen years in the Arkansas Department of Correction. On appeal, McClellan’s sole argument is that the trial court erred by admitting the victim’s medical records into evidence as business records because they were prepared in anticipation of criminal litigation. We affirm.
Appellant, James S. McClellan, was convicted of rape on April 22, 2002. The details of the rape are irrelevant for purposes of this appeal; however, the assault was especially violent and resulted in injuries to the victim, T.P. McClellan appeals only the admission of T.P.’s medical records into evidence as business records.
At trial, Candi Aston, the triage nurse who initially treated T.P. at Rebsamen Medical Center, testified that T.P. was upset when she arrived at the hospital. Aston helped lay the foundation for the admission of State’s Exhibit 4, which is the evidence at issue in this appeal. The State’s next witness was Tina Miles, who was the treating nurse at Rebsamen Medical Center. Miles testified about T.P’s condition and injuries, and she also helped lay the foundation for admission of State’s Exhibit 4. The defense counsel objected to the admission of State’s Exhibit 4 as follows:
Mr. Suddeth: The defense at this time would object to the admission as under the exception of business records. I believe that exception will apply unless there are some details about the exhibit that call into question its trustworthiness, and I believe we are, in the State’s exhibits, there are a number of people who have not testified today and some of these pages aren’t even signed. So I think it calls into question the trustworthiness of some of these pages that we would object to.
The State contended that the records qualified as business records under Arkansas Rule of Evidence 803(6), and the trial court agreed, admitting the evidence over appellant’s objection.
McClellan argues on appeal that the trial court erred in allowing State’s Exhibit 4 into evidence as business records under Ark. R. Evid. 803(6). The State contends that McClellan’s point is not preserved for appellate review, and even if it is preserved for appellate review, McClellan failed to show that the trial court abused its discretion by admitting the records.
On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001); Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996).
Generally, one who offers evidence has the burden of showing its admissibility. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Benson v. Shuler Drilling Co., Inc., 316 Ark. 101, 871 S.W.2d 552 (1994). Arkansas Rule of Evidence 803(6) provides an exception to the hearsay rule for the admission of business records. That exception has seven requirements: (1) a record or other compilation, (2) of acts or events, (3) made at or near the time the act or event occurred, (4) by a person with knowledge, or from information transmitted by a person with knowledge, (5) kept in the course of regularly conducted business, (6) which has a regular practice of recording such information, (7) all as known by the testimony of the custodian or other qualified witness. Benson v. Shuler Drilling Co., Inc., supra, (citing Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992)). Rule 803(6) further provides that business records will not be admitted if the source of information or the method of circumstances of preparation indicate lack of trustworthiness. Id. Medical records may be admissible under the business-records exception. See Terry v. State, supra.
McClellan also argues that State’s Exhibit 4 should not have been admitted because it was not trustworthy. However, the State contends that McClellan did not properly preserve this point for appellate review. The State is correct in asserting that arguments not raised in the circuit court will not be addressed for the first time on appeal. E.g., Cook v. State, 76 Ark. App. 447, 453, 68 S.W.3d 308, 313 (2002). Further, on appeal, a party is bound by the scope and nature of the arguments made in the circuit court. E.g., Hutcherson v. State, 74 Ark. App. 72, 76, 47 S.W.3d 267, 270 (2001). During the objection to the evidence at trial, defense counsel argued that there were a number of people who had not testified as well as several unsigned documents in State’s Exhibit 4, and specifically called into question the trustworthiness of this portion of the records. We conclude that the objection to the trustworthiness of the evidence was sufficient to preserve the issue for appeal.
We must next consider whether the trial court abused its discretion in finding the evidence admissible. This court has stated that the trial judge has wide discretion in determining quali fication of a witness and trustworthiness of a document; we do not reverse absent a showing of the trial judge’s abuse of discretion in making these initial determinations of fact concerning business records. Wildwood Contractors v. Thompson-Holloway Real Estate, 17 Ark. App. 169, 705 S.W.2d 897 (1986). McClellan argues that the medical records were “prepared in anticipation of a criminal proceeding,” and to that end incorporated information given to the hospital personnel by the victim. McClellan further argues that the records were not prepared in the normal course of business, i.e., T.P.’s routine medical checkups.
Medical records may be admitted into evidence as business records. E.g., Edwards v. Stills, supra.; Terry v. State, supra at 69, 826 S.W.2d at 820 (1992) (appellant's medical records containing information about treatment for a sexual disease were not made in anticipation of litigation). McClellan conceded at trial that the records would be admissible if they were trustworthy. He now argues that the records were not trustworthy because the victim gave the information in the records and because they were made in anticipation of litigation. However, McClellan’s argument that the records were untrustworthy is merely conclusory and goes to the weight of the evidence and not to its admissibility. See Wildwood Contractors v. Thompson-Holloway Real Estate Agency, supra, (personal knowledge of the sponsoring witness regarding preparation of business records goes to weight rather than admissibility of record).
The State asserts that medical decisions are made from such records, and these decisions are the business of hospitals. Cf. Terry v. State, supra. We agree, and this necessarily includes decisions regarding the treatment of victims of rape and other criminal events. It is the fact that regularly kept business records are relied upon for business decisions that makes them trustworthy enough to be admissible as an exception to the hearsay rule. See Wildwood Contractors v. Thompson-Holloway Real Estate Agency, supra.; E. Cleary, McCormick On Evidence, Section 306 (3d ed. 1984). Moreover, while McClellan questioned at trial the trustworthiness of “some of these pages” of the medical records, he did not specify the pages to which he objected or request that they be excised. To the extent his objection was directed at portions of the records containing information provided by the victim, we note that the victim’s testimony at trial concerning the assault and rape was not in conflict with information she provided to medical personnel during her examination and treatment, and was much more extensive, graphic, and detailed. Thus, the information contained in the medical records was merely cumulative of her trial testimony.
Affirmed.
Stroud, C.J., and Griffen, J., agree.
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John F. Stroud, Jr., Chief Judge.
Kenneth Marbley was convicted by a Pulaski County Circuit Court jury of the offenses of rape and kidnapping. He was sentenced to the Arkansas Department of Correction for twenty-five years on the rape conviction and fifteen years on the kidnapping conviction, with the sentences to be served consecutively. His sole point on appeal is that the trial court erred in denying his motions for directed verdict on the offense of kidnapping because there was insufficient evidence of nonconsensual restraint for the purpose of kidnapping. We affirm.
The victim, A.R., testified that on January 8, 2001, she was on her way to a friend’s house when appellant pulled up beside her in his car and asked her name. She gave him a false name, because although she had seen him before in the neighborhood, she did not know him. Appellant told her that his name was Kenneth and offered her a ride to her friend’s house. A.R. asked him if he was going to hurt her, and appellant told her no, that he was just going to take her where she needed to go. A.R. asked if appellant could take her to the store; he agreed to take her to the store and then to her friend’s house. A.R. willingly got into appellant’s car, went to the store, purchased a soft drink, and then got back into the car with appellant. When she got back into the car, appellant told her to put her seatbelt on, and he drove her to her friend’s house. A.R. testified that when they arrived at her friend’s house and she started to get out of the car, appellant pulled a gun wrapped in a blue Wal-Mart bag from the back seat and pressed it to her thigh. Appellant told A.R. to lean back and place her hands under her thighs; he then drove from Litde Rock to Mayflower, Arkansas. During the drive, appellant asked A.R. if she was “clean,” just in case they decided to have sex. A.R. testified that she knew when appellant asked her that “that something was gonna happen that I did not want to happen.”
A.R. said that appellant took her to his house, told her to take off her clothes, and raped her. She said that appellant told her that as long as she did what he told her to do, he would take her home. She did not try to run away because she knew he had a gun and she thought he might catch her and hurt her. After appellant initially raped A.R., he made her perform oral sex on him, and when she gagged, he raped her a second time. After that, he gave A.R. her clothes and took her outside to the bathroom to “make sure the evidence was gone.” He waited while she used the bathroom and then the two of them got back into appellant’s car. They stopped in North Little Rock at a gas station; appellant pumped gas and then went inside to pay. A.R. testified that she did not try to run away at that point because appellant was going to take her home. Appellant did take A.R. almost all of the way home, dropping her off a couple of blocks from her house. After arriving home, A.R. told her mother what had happened, called the police, and was taken to the hospital for an examination.
At the close of the State’s case, appellant’s counsel made the following motion for directed verdict:
Your Honor, we make our motion for directed verdict specifically as to the kidnapping. The State must prove that there was restraint without consent. There was at least one period of time where the victim could have left and didn’t. . . . [S]he may be able to say she did not choose to leave, nonetheless, she was not restrained at that period of time.
This motion was denied; appellant called no witnesses and renewed his motion for directed verdict, which was again denied.
On appeal, appellant argues that he did not restrain A.R. without consent other than the restraint that was incidental to the rape. The State contends that appellant did not make this argument below and is therefore now barred from making this argument on appeal. We agree. A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Although both arguments concern the issue of nonconsensual restraint, appellant’s argument to the trial court was that A.R. was not restrained without consent because there were at least two times that she could have left and did not do so. On appeal, he does not challenge his rape conviction, but instead argues that he did not use any more restraint on A.R. than was necessarily incidental to the rape. Because this argument was not made to the trial court in appellant’s motion for directed verdict, appellant cannot now make this argument on appeal, and his conviction for kidnapping is affirmed.
Nevertheless, even if we were to address the merits of appellant’s argument, we hold that there is sufficient evidence to support his conviction for kidnapping. For purposes of this case, the relevant portion of the kidnapping statute is Ark. Code Ann. § 5-ll-102(a)(4) (Repl. 1997), which provides, “A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty for the purpose of inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him.” “Restraint without consent” is defined as “restraint by physical force, threat, or deception.” Ark. Code Ann. § 5-11-101(2) (Repl. 1997).
In Summerlin v. State, 296 Ark. 347, 350, 756 S.W.2d 908, 910 (1988), our supreme court held that “it is only when the restraint exceeds that normally incidental to the crime that the rapist (or robber) should also be subject to prosecution for kidnapping.” In that case, the appellant grabbed his victim as she jogged past him and a struggle ensued. The victim screamed for the appellant to let her go as he was ripping her shorts. Although the appellant was able to get on top of his victim, she was able to get away from him and escape. Our supreme court affirmed the conviction for attempted rape but reversed the kidnapping conviction, holding that the restraint employed on the victim was no greater than that which the State was required to prove on the attempted rape charge and therefore could not form the basis for the separate crime of kidnapping.
In Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991), our supreme court again reversed and dismissed a kidnapping charge while affirming the conviction for rape. In that case, the victim and the appellant were to go on a dinner date; instead, they went to a liquor store and purchased some whiskey. Then, on the pretense of purchasing “a part,” appellant drove the victim to a remote camp site, where they listened to music. When the appellant asked the victim if he could kiss her, she said no, and he told her that he could just “blow her head off” and no one would find her. The victim began to walk down the road, but she got back into the truck after appellant followed her and apologized. Appellant then drove to a dead-end and told the victim to get out of the truck; he then pulled a gun on her and raped her. In reversing the kidnapping conviction, the supreme court held that there was no substantial interference with the victim’s liberty to warrant a separate conviction for kidnapping because by the victim’s own testimony her actions were consensual until appellant pulled a gun and forced her to take off her clothes.
■ Appellant relies on the above cases in his argument and urges this court to find that the facts and circumstances in his case are analogous. He also cites Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); however, we find that the facts of that case are inapplicable to appellant’s case. Furthermore, we hold that the circumstances in the present case are more analogous to those in Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993), than the facts found in Summerlin or Shaw.
In Thomas, the victim was waiting for her school bus when the appellant, with his son and nephew in the car, offered her a ride to school. The victim accepted the ride, but the appellant did not take her to school; instead, he took her down a dirt road. Appellant told the victim that he would kill her if she did not stop hitting him and kicking him. Appellant got the victim out of the car, took her clothes off, threatened her with a knife, and then raped her. The supreme court distinguished Shaw, stating that while the victims both voluntarily entered the vehicles, the victim in Shaw continued to consent to her rapist’s actions when he deviated from the agreed-upon destination whereas the victim in Thomas began to revoke her consent as soon as it became apparent that the appellant was not taking her to the agreed-upon destination — school. In affirming, the supreme court held:
In reaching our conclusion, we emphasize the fact that appellant continued to remove the victim from the point of their initial contact after she expressed a desire to be returned to the agreed-upon destination. Appellant did not rape the victim at the point of initial contact as was the case in Summerlin, 296 Ark. 347, 756 S.W.2d 908, nor at the point where the victim revoked her consent to appellant’s actions as was the case in Shaw, 304 Ark. 381, 802 S.W.2d 468.
311 Ark. at 612, 846 S.W.2d at 170.
In the present case, appellant did not rape A.R. at the point of initial contact; therefore, this case is distinguishable from Summerlin. Although appellant took A.R. to her friend’s house, he did not let her out; rather, he placed a gun to her leg and told her to lean back and place her hands under her thighs. We hold that A.R. revoked her consent at that time. However, appellant did not rape A.R. until after he drove her to Mayflower; therefore, Shaw is also distinguishable. In the case at bar, although the victim willingly entered appellant’s car, appellant restrained her liberty without her consent prior to the rape by forcing her at gunpoint to go with him to his home in Mayflower rather than letting her get out of his car at her friend’s house. This restraint was not incidental to the rape and is sufficient to satisfy the “restraint without consent” element of the offense of kidnapping. Appellant’s kidnapping conviction is affirmed.
Affirmed.
Neal and Vaught, JJ., agree.
Marbley does not appeal his rape conviction.
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Sam Bird, Judge.
In this slip-and-fall case, Judi Tomlin filed a negligence complaint against Wal-Mart Stores, Inc., regarding the presence of a strapping band in the aisle of a Wal-Mart store at Camp Robinson. The case proceeded to trial, and the jury returned a verdict against Wal-Mart in the amount of $51,500. The trial court subsequently granted a motion by Wal-Mart for judgment notwithstanding the verdict. Ms. Tomlin raises two points of appeal, contending that the trial court erred in granting the motion for judgment notwithstanding the verdict and in refusing to instruct the jury on spoliation of evidence. For the reasons discussed hereunder, we affirm.
We briefly set forth the facts of the case. In the late afternoon of January 22, 1998, Ms. Tomlin entered the Camp Robinson store to return merchandise at the customer service desk. She tripped and fell in the aisle after completing her transaction, and assistant manager Mike Wasson was called to the front of the store where the accident occurred. His incident report stated that Ms. Tomlin slipped and fell because her foot “caught on a plastic string,” and that she bruised her knee. Ms. Tomlin received medical treatment and eventually underwent knee surgery.
3. Whether the trial court erred in granting Wal-Mart’s motion for judgment notwithstanding the verdict.
A trial court may grant a motion for judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict and the moving party is entitled to judgment as a matter of law. Fayetteville Diagnostic Clinic v. Turner, 344 Ark. 490, 42 S.W.3d 420 (2001). Substantial evidence is evidence of sufficient force and character that it will compel a conclusion one way or another; it must force the mind beyond mere suspicion or conjecture. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999). On appeal we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment notwithstanding the verdict was rendered. Id. Possible causes of a fall, as opposed to probable causes, do not constitute substantial evidence of negligence. Safeway Stores, Inc. v. Willmon, 289 Ark. 14, 709 S.W.2d 623 (1986).
Mike Wasson, the store’s assistant manager on the date in question, testified that Ruth Doyle called him to the front of the store and told him that someone claimed to have fallen. He testified that he could remember only that the fall was supposedly caused by a clear plastic strapping band, about an eighth of an inch thick; that he thought the strapping band was found in the vestibule; and that he did not remember picking it up. He stated that Ms. Doyle “might have showed it, held it out there”; that he was uncertain about the location, Ms. Doyle’s holding the band, and whether the band was broken or was a hoop.
Mr. Wasson further testified that inventory for Wal-Mart is sometimes delivered with strapping bands around multiple items of the same product, that the bands were of “the same type of material that I saw,” that personnel ordinarily removed the bands before putting products on shelves or unboxing them, and that he could not remember a product being displayed with strapping bands on it. He said that he had no idea how the strapping band in question came to be on the floor, but that it might have been blown in from outside or have been tracked in on someone’s shoe. He said that the strapping was also used inside of packages, that he had seen customers open packages before leaving the store, that he had seen customers return merchandise with packages ripped open and packing material out, and that a customer could drop packaging on the floor and never know it.
Judi Tomlin testified that her fall occurred near the exit doors, in an area near the service desk and check-out counter. She said that she felt a narrow article across her foot— an item like a strapping band or wire. She said that Wasson also tripped when he came around the end of the counter, that he bent down and picked up a white or clear plastic strapping band, and that he threw it into the trash. She remembered commenting at the time, “That’s what I tripped on.” She testified that she had shopped at Wal-Mart for years, that she had seen packages with strapping bands toward the back of the store but not in the front, and that she had never seen a customer wrestling a band off of a package on display. She testified that there were no return registers set up at the time of her fall, and that customers were lined up at the service desk within a foot or two of the location of the strapping band.
Roger Doyle testified that he was a former assistant manager at the Camp Robinson store. He testified that he frequently had seen customers come in the store’s exit door in January when a lot of returns were being made to “return registers” one through four, and he opined that it was an “above average” possibility that the strapping band in question had been dropped by a customer rather than by store personnel. Mr. Doyle testified that the store was constantly being restocked, that employees removed big boxes from boxes with strapping bands on them, and that the majority of stocking took place between 5:00 a.m. and 3:00 p.m.
Mr. Doyle further testified that magazines and other goods with strapping bands on them were brought into the store; and that vendors had to remove the bands, which were usually clear or white. He said that magazines’ bands were cut in the back of the store in receiving. He said that vendors cleaned up after themselves, that managers were supposed to check the area as well, that the service desk was responsible for making sure that nothing ended up on the floor, and that personnel were trained to pick up items lying in the main exit aisle. He said that customers sometimes removed strapping bands from large boxes. He testified that items packaged in large boxes were located in sporting goods, which was about ten aisles from the center and at the back of the store; in lawn and garden, all the way to the right from front checkout; where the safes were sold, about five aisles from the front of the store; and in housewares; approximately two aisles past the safes.
The principles that govern slip-and-fall cases are set against the general backdrop that an owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Fayetteville Diagnostic Clinic v. Turner, supra. To establish a violation of that duty, a plaintiff must prove either that the presence of a substance upon the floor was the result of the defendant’s negligence, or that the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Id. The mere fact that a person slips and falls does not give rise to an inference of negligence. Id.
In Wal-Mart Stores v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991), the supreme court held that there was substantial evidence from which the jury could readily infer that water had collected inside the building on the floor for an undue period of time, and that failure to warn of its presence or to wipe the floor clean constituted a breach of ordinary care. The court noted testimony that the day in question;was rainy, that a ceiling tile was missing and that water had dripped onto someone’s face, that there was water on the store’s floor between the counter and the exit door, that employees entered through the exit door, and that there were foot tracks through the water.
In Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991), the plaintiff slipped and fell when she entered the bank a few minutes after it opened on a rainy morning. The plaintiff testified that she did not see the substance that caused her fall but believed it was accumulated water from the clothes or shoes of a customer or employee. The supreme court held that this evidence was speculative and insufficient to show that the substance was on the floor due to the Bank’s negligence, and that the evidence was also found to be insufficient to establish that a substance had been on the lobby floor for such a substantial period that employees knew or should have known of its existence. The case was distinguished from Wal-mart Stores, Inc. v. Kelton, supra, in that the few minutes’ time in which the Bank of Malvern had been opened left very little time to notice water possibly brought in by customers or employees, there was no evidence of foot tracks indicating that employees had walked through the water and ignored the danger, and there was no evidence of a leak in the ceiling.
In Fayetteville Diagnostic Clinic v. Turner, supra, the supreme court affirmed the trial court’s denial of the clinic’s motion for judgment notwithstanding the verdict. In that case the plaintiff slipped and fell in water in the hallway of the clinic where she had an appointment. She testified that her doctor there told her after-wards that he was aware of the slippery condition in the area where she fell. The Turner court held that this was substantial testimony from which the jury reasonably could have inferred that the doctor, as one of the owners of the clinic, was aware of the condition that caused the plaintiff s fall, that the slippery condition had existed for such a length of time that the owner knew of its presence, and that he failed to take ordinary care to correct it.
Wal-Mart Stores, Inc. v. Regions Bank Trust Dept., 347 Ark. 826, 69 S.W.3d 20 (2002) (in which the trial court was reversed on other grounds), was another case in which the supreme court found the evidence sufficient to sustain a jury verdict in a negligence suit against Wal-Mart. The plaintiff in that case slipped and fell on the store’s floor where a puddle of liquid apparently had come from a broken snow globe in a Christmas display. The supreme court found that there was sufficient evidence that Wal-Mart knew or should have known of the presence of the substance on the floor. The evidence included testimony of another shopper who saw the plaintiff fall and minutes earlier had noticed a “puddle of stuff” having a “milky color like when wax gets wet and then it starts to dry”; based on her experience working in hotels, she opined that the discoloration indicated that the liquid had been on the floor for some time. The supreme court also noted the expert testimony of a chemist that the substance inside the snow globe was primarily water with some dissolved solids, and that it would take at least twenty-four hours for the liquid to even begin to dry; and the concession of a Wal-Mart employee that the liquid may have been on the floor for up to a day.
In Safeway Stores, Inc. v. Willmon, supra, where the plaintiff slipped on a liquid substance and fell while pushing a shopping cart down an aisle, witnesses said that the water might have been brought from the water fountain, that someone could have spilled a soft- drink cup filled with ice, and that jugs of distilled water were shelved nearby. The supreme court held that there was only sheer speculation and rank conjecture that the water was on the floor as a result of negligence, and held that the trial court erred in submitting the issue of negligence to the jury. Similarly, where the evidence showed that the aisle had been swept an hour and fifteen minutes before the fall and that employees had been up and down the aisle in the intervening time until the fall, there was no proof that the water had been on the floor for such a length of time that the storekeeper knew, or should have known of its presence and failed to use ordinary care to remove it.
In the present case, the evidence viewed in the light most favorable to the jury’s verdict is as follows. Strapping bands were brought into the store on a wide variety of products, and employees handled the strapping bands daily in the receiving and stocking of merchandise. Ms. Tomlin felt a narrow band across her foot when she fell after returning merchandise at the customer service desk, and when shown the strapping tape immediately afterwards she said, “That’s what I tripped on.” Magazines were sold near the area where Ms. Tomlin fell, magazines were brought into the store in bundles bound with strapping bands similar to the one she described, and nearly all products that were displayed with strapping bands intact were located some distance from the customer service desk and the main exit. The store manager at the time of Ms. Tomlin’s fall could not remember a product being displayed with the strapping bands on it. Managers were responsible for insuring that areas restocked by outside vendors were safe for shoppers, and strapping bands returned with return merchandise were the responsibility of store employees. Ms. Tomlin had shopped at Wal-Mart for years and had never seen a customer remove a strapping band from a package on display.
Ms. Tomlin’s complaint alleged that negligence by WalMart or its employees resulted in the presence of the strapping band on the floor, or that Wal-Mart had been negligent in failing to remove the band from the floor within a reasonable period of time and had failed to act reasonably to ensure that foreign objects did not remain on the floor so as to pose a danger to customers. We hold that the evidence was insufficient to prove these allegations. Although several possibilities were presented, there was no testimony or other evidence from which the jury could have determined without speculation or conjecture how the strapping band came to be on the floor or how long it remained there prior to the accident. Thus, we hold that the trial court did not err in granting Wal-Mart’s motion for judgment notwithstanding the verdict.
The dissenting opinion suggests that there was “an abundance of circumstantial evidence” from which Wal-Mart’s negligence could properly be inferred, such as proof that Wal-Mart employees are responsible for removing the strapping bands from shipments of merchandise, and that the bands are not generally accessible to the public. While it is true that negligence-can be inferred from circumstantial evidence, the examples of circumstantial evidence mentioned in the dissenting opinion offer no clue, absent speculation and conjecture, as to how the strapping band upon which Ms. Tomlin tripped migrated from the merchandise or warehouse area of the store, where the evidence established that the straps were removed, and came to be located near the service desk where Ms. Tomlin fell, or how long the strap had been there. There was no evidence presented from which a jury could infer that such migration resulted from the negligence of Wal-Mart or its employees.
2. Whether the trial court erred in refusing to instruct the jury on spoliation of evidence.
Spoliation is the intentional destruction of evidence; when it is established, the fact-finder may draw an infer ence that the evidence destroyed was unfavorable to the party responsible for its spoliation. Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000), citing Black’s Law Dictionary 1401 (6th ed. 1990). An aggrieved party can request that a jury be instructed to draw a negative inference against the spoliator. Id.
At trial, Ms. Tomlin requested that the jury be given a spoliation instruction regarding both the strapping band that was thrown into the trash and any video surveillance tapes of events at issue. She contends that the strapping tape may have reflected partial shoe prints and may have been discolored, which evidence the jury could have used to find that the band belonged to Wal-Mart and that it had been on the floor for a long time. She also contends that surveillance tapes may have shown that a Wal-Mart employee dropped the strapping band, or that the band had lain on the floor for an unreasonably long period of time.
Ms. Tomlin contends that without access to evidence within the control of the proprietor, it is nearly impossible under Arkansas law for an injured party to prove negligence in slip-and-fall cases; therefore, she contends that it is imperative that property owners suffer sanction for destroying pieces of evidence critical to the plaintiffs case. She notes that other jurisdictions have shifted the burden of proof in slip-and-fall cases, specifically requiring a premises owner to overcome a presumption of negligence once the plaintiff establishes a prima facie case by showing that a foreign substance was present, that the fall was on account of that substance, and that he was injured as a result of the fall. Ms. Tomlin argues that Wal-Mart directs its managers on what items to save according to its own pecuniary and best interest. She notes that although Mike Wasson was required to report whether the injured person commented about suing or about medical bills, he was not instructed to preserve the foreign object involved. Regarding the strapping band, she points to testimony by Roger Doyle that items involved in customer incidents are likely to be thrown away rather than taken as evidence, that Wal-Mart’s policy is to preserve such objects only in a products liability case, and that discarding the strapping band was not contrary to any policy of Wal-Mart. Regarding the surveillance tapes, she notes Mr. Doyle’s testimony that the entrance, exit, and service desk were always under surveillance or within a camera’s view; that tapes were changed out and stored each morning; that the tapes were held from two weeks up to thirty days before being reused, but Mr. Doyle had taken tapes out of the rotation and secured them only in instances of internal theft; and that in the case of a customer accident, Wal-Mart had no policy of checking and securing a tape to see if the accident had been recorded.
The trial court, speaking from the bench, set forth it’s reasons for refusing to give the spoliation instruction on the strapping band:
[T]he idea is that if the defendant does some spoiling or losing or intentionally discarding evidence in the case, there ought to be some inference that it was bad evidence. I think it doesn’t reach that point in this case. ... It didn’t reach that level to me that Wal-Mart had this policy, or even in this case, that they had intentionally destroyed evidence. She wasn’t even sure that was what she had stepped on.
Regarding the surveillance tapes, the court stated, “They did that in a routine manner. There has been no evidence that they went in and erased the tape. They said they do that routinely, keeping them two weeks to a month.”
In Rodgers v. C.W.R. Construction, Inc., 343 Ark. 126, 33 S.W.3d 506 (2000), the plaintiffs requested a spoliation instruction regarding evidence that was lost or had never been received; they insisted that the record clearly revealed that the appellee physically possessed and controlled certain pre-demolition safety reports and a pipe, clamp, and bolt involved in the accident at issue. Although viewing these pieces of evidence as unquestionably important, the supreme court held that the trial court’s refusal to give the instructions was not error for the following reasons:
First, the trial court specifically found that the evidence was not intentionally lost or destroyed. Second, the trial court permitted counsel to argue the same points to the jury even though it elected not to submit the instructions. Third, and most importantly, the evidence was available in appellee’s office shortly after the accident, but no meaningful discovery commenced until five years following the accident. In the absence of any intentional misconduct, we cannot say that the trial court abused its discretion by failing to give the jury an instruction on spoliation of evidence.
A party is entitled to a jury instruction when it is a correct statement of the law, and there is some basis in the evidence to support the giving of the instruction; moreover, a trial court’s refusal to give a properjury instruction will not be reversed absent an abuse of discretion. Coca-Cola Bottling Co. v. Priddy, 328 Ark. 666, 945 S.W.2d 355 (1997). Here, the trial court found that there was no indication that the evidence was “bad,” that Wal-Mart had destroyed it in other than a routine manner, or even that it was intentionally destroyed. There was no evidence that anyone at Wal-Mart knew that the surveillance tape actually showed the presence of the strapping band on the floor, how it got there, or how long it had been there. Neither was there any indication that the store manager who allegedly disposed of the strapping band knew at the time that it was potentially helpful to the plaintiff. Therefore, we hold that the trial court did not err in refusing to give the spoliation instruction.
Affirmed.
Vaught, Crabtree, and Roaf, JJ., agree.
Pittman and Hart, JJ., dissent.
Appellant relies in part upon Fitzgerald v. Gulf Intern. Cinema Corp., 489 So.2d 306 (La. Ct. App. 1986), and Simoneaux v. Humedicenters, Inc., 642 So.2d 318 (La. Ct. App. 1994).
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John B. Robbins, Judge.
This appeal arose from a bench-trial criminal conviction of appellant, Robert Stephen Hill, in Lonoke County, following a purported conditional plea of guilty to the charge of possession of controlled substance, methamphetamine, a Class C felony. Appellant argues that (1) the arresting officers lacked the requisite suspicion to detain him, as established by Ark. R. Crim. P. 3.1 and Ark. Code Ann. § 16-81-203, (2) the arresting officers exceeded the scope of a Terry frisk and Ark. R. Crim. P. 3.4, (3) that appellant did not consent to the search of his person, and (4) that the denial of his motion to suppress was reversible error. Because appellant’s purported conditional guilty plea did not conform with Ark. R. Crim. P. 24.3(b) (2002), we dismiss the appeal for lack of jurisdiction.
On January 29, 2002, the trial court held a suppression hearing pursuant to appellant’s motion to suppress. During that hearing, the following facts developed in testimony. On September 5, 2000, England police officer Todd Brown received a dispatch to the home of Judy Holladay. When he arrived at that home, Hol-laday informed him that there had been a disturbance involving drugs. She told the officer that the suspects, a male and a female, were in a blue S-10 pickup truck. Holladay also stated that the suspects had crystal meth “on them.” Brown relayed that information to his chief. Brown testified that he “believed the suspect would be in possession of drugs after talking with Ms. Holladay.” Chief Cook later testified that he “would not characterize the stop as being for the sole purpose of finding drugs,” but that it was a stop conducted in response to a disturbance call. However, Cook also stated that there “were allegations of drugs being in the vehicle,” that he was “familiar with the people who made the complaint,” that this “was not an anonymous tip,” that there “were previous drug problems in that area and at that residence,” and that his department “had never used the informant before and [he] did not know if she has ever lied to [him].”
Chief Cook was the first to stop appellant’s vehicle based on the information thus received. Officer Brown arrived second. Appellant was the driver of the truck. Cook informed them of the reason for the stop. According to Cook’s testimony, he asked appellant out of the truck and conducted a “protective pat-down for weapons and found none.” After that, Cook checked appellant’s papers. Cook testified that he conducts pat-down searches as a matter of policy “whenever there is a possible narcotics or a disturbance involved or where there is a weapon present, whether it is reported or unreported.” However, Cook also testified that appellant had done nothing in his presence that would have led Cook to believe that appellant had weapons.
Appellant then gave verbal permission for the officers to search the truck. The officers did not find drugs or other contraband inside the vehicle. However, Chief Cook had noticed, and felt during the pat-down, a bulge in appellant’s right front jeans pocket. Thus, after completing the search of the vehicle, Chief Cook asked appellant “if he would mind showing [him] what he had in his right-hand front pocket.” Cook testified later that at that point he suspected that the item in appellant’s pocket might be a pill bottle often used in narcotics crimes. Appellant testified that Cook “stayed at [his] pocket and kept squeezing from the outside of [his] pants,” but that Cook never reached into the pocket. Appellant “complied” with the officer’s request and handed over a plastic bottle without a label — according to Cook, he did so “immediately, without hesitation.” Apparently, though, appellant at first just pulled out a lighter, upon which Cook specifically requested that he wanted to see the “round object” in appellant’s pocket. Cook specifically testified that he did not himself remove the item from appellant’s pocket because appellant then was not yet under arrest. When Cook asked appellant what was in the bottle, appellant claimed that he did not know. Appellant later testified that he believed the substance to be Tylenol because the bottle was a Tylenol bottle. Appellant also stated that he never looked into the botde, but that he had received it for headaches at the home of Berniece Holladay, Judy Holladay’s mother and a friend of his female passenger, where they had stopped earlier. Cook saw a white, powdery substance in the bottle. At that point, the officers arrested appellant and his passenger. Both arrestees received their Miranda readings at that time.
Because Chief Cook’s police car did not have a police camera and Officer Brown’s patrol unit arrived behind Cook’s patrol car, Brown did not use his police camera in the incident at issue.
Appellant testified that he did not know Judy Holladay, that he had not been at her house, and that he had not smoked drugs with her. He stated — when Chief Cook informed him of the reason for the stop — that his female passenger told him that “some girl had a problem with her.” The passenger later testified that Judy Holladay did not like her.
Toward the end of the hearing, counsel for appellant argued that the holding of Terry v. Ohio, 392 U.S. 1 (1968), required a conclusion that a Terry search was not warranted. Furthermore, counsel for appellant specifically argued that Ark. R. Crim. P. 11.1 requires a finding that consent cannot be the product of actual or implied duress or coercion, and that an officer asking a defendant to remove the items from his pocket would be more in the form of an order than a request. The trial court found that there was a conflict in testimony regarding whether the officer asked to see the contents of the pocket or whether he ordered appellant to empty his pockets. After hearing the State’s closing argument, the trial court denied the motion to suppress the evidence.
On March 20, 2002, less than two months after the suppression hearing, appellant entered what he asserts to be a conditional plea of guilty to the charge of possession of controlled substance, methamphetamine, a Class C felony. Appellant received a sentence of 60 months’ imprisonment, with 30 months suspended. From this, he brings the current appeal.
Lack of Jurisdiction to Hear Appeal
Notably, the State does not argue that appellant’s attempted conditional guilty plea fails to comply with the require ments of Ark. R. Crim. P. 24.3(b) (2002). However, whether a defendant has complied with Rule 24.3(b) is a jurisdictional question, see Ray v. State, 328 Ark. 176, 941 S.W.2d 427 (1997), and as such, we must raise the issue sua sponte. When a defendant pleads guilty to a charge, he or she waives the right to appeal that conviction. Green v. State, 334 Ark. 484, 978 S.W.2d 300 (1998). For relevant purposes before us, only a conditional plea pursuant to Rule 24.3(b) enables a defendant to retain the right to appeal an adverse suppression ruling. Ark. R. App. P. — Crim. 1(a) (2002); Barnett v. State, 336 Ark. 165, 984 S.W.2d 444 (1999).
Rule 24.3(b) states:
With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to review of an adverse determination of a pretrial motion to suppress evidence. If the defendant prevails on appeal, he shall be allowed to withdraw his plea.
Our supreme court has interpreted Rule 24.3(b) to require strict compliance with the requirement that the right to appeal be reserved in writing. Barnett v. State, supra. This is so even when there has been an attempt to enter a conditional plea below. Ray v. State, supra. In addition, the writing must be contemporaneous with the defendant reserving his or her right to appeal. Tabor v. State, 326 Ark. 51, 930 S.W.2d 319 (1996). We also look for an indication that the conditional plea was entered with the approval of the trial court and the consent of the prosecuting attorney. Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993).
In the present case, the record contains a writing entitled “GUILTY PLEA AGREEMENT,” with the handwritten word “Conditional” appearing above it. The document is signed by the prosecuting attorney, appellant’s attorney, and appellant, with a handwritten date of March 20, 2002, and a court file stamp of the same date. The document contains the following pre-typed list of rights:
I understand that I have the following rights:
(a) The right to remain silent and make no statements.
(b) The right to be represented by an attorney.
(c) The right to a speedy, public trial by a jury which must unanimously find me guilty beyond a reasonable doubt on each element of any charge.
(d) The right to be found guilty of a lesser charge and/or punishment than the original charge.
(e) The right to personally confront and cross-examine every witness, and the right to call witnesses to testify for me.
(f) [Illegible.]
(g) The right to question all facts, circumstances and evidence, and the right to confront and raise all legal issues, rights and theories.
(h) To file a petition within 30 days that my attorney was ineffective, and my right to appeal be thus extended 30 days past a hearing on this motion.
I understand that if I plead guilty I give up and waive all my rights, and if the plea is accepted by the Court, it cannot be changed nor the punishment reduced.
By pleading-guilty I will lose my right to vote and the right to possess firearms. I may also incur employment and various other indirect problems from this conviction.
Each prior or later conviction can increase the time of punishment required before parole eligibility [sic].
No one has threatened me nor promised me anything that has caused me to plead guilty.
I understand the Prosecuting Attorney will make a sentence recommendation to the Court based on our plea agreement, but if the plea agreement is not accepted, my guilty plea will be withdrawn and the statements herein will not be held or used against
I hereby plead guilty to having committed the above stated crime(s), and understand by doing so I give up all my rights.
Appellant hand-initialed every enumerated item quoted above, from (a) to (h), except (f), by marking them with “RSH” on the left hand margin. Item (f) has been marked out to the point of being illegible.
Applying Barnett v. State, supra, to the instant case, we hold that appellant failed to strictly comply with Rule 24.3(b). The document does not specifically state that appellant reserves his right to appeal the outcome of the suppression hearing. Rather, the document contains language to the effect that if he pleads guilty, he gives up and waives all his rights. Moreover, the document fails to demonstrate that the trial court approved a conditional plea. Therefore, we lack jurisdiction and dismiss the appeal.
Appeal dismissed.
Bird, J., agrees
Griffen, J., concurs.
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Larry D. Vaught, Judge.
Appellants Howard Curry and his wife Linda, sued appellees William Thornsberry and his wife Delores, the builder and original seller of appellants’ home, for damages allegedly caused by appellees during construction. The trial court directed a verdict against appellants at the close of their proof, finding insufficient evidence of fraudulent concealment so as to toll the statute of limitations. The trial court also awarded appellees a portion of their attorney fees under Ark. Code Ann. § 16-22-308 (1999). Appellants bring this appeal challenging both rulings. We affirm.
Appellee William Thornsberry was the owner-developer and contractor of the Lakehill Subdivision in Pope County . The bill of assurance for the subdivision was filed of record on November 6, 1986. The lot at issue, Lot 11, was sold by appellees to Gary and Linda Harris by warranty deed dated May 13, 1987. The Harrises conveyed the property back to appellees on August 31, 1988. The property was then conveyed to Richard Rigby on March 21, 1989. A foreclosure then ensued, and appellants purchased the property from the Secretary of Housing and Urban Development (HUD) by deed dated June 17, 1991.
On March 17, 1995, appellants filed suit alleging that appellees were negligent in the construction of the home by failing to properly determine the type of soil on which the house was built that allowed the house to settle and crack its foundation. The complaint alleged that the subdivision was on top of “Enders soil,” a type of soil that expands and contracts with moisture. Appellants alleged that appellees were aware of this type of soil because a 1981 Pope County soil survey had been published and was available to those in the construction industry. Appellants also alleged that appellees breached the implied warranties of fitness, habitation, and merchantability.
Appellees admitted certain undisputed factual allegations in the complaint but denied that they were negligent or that they breached any warranties. Because the suit was filed seven years after the completion of the construction, appellees asserted the five-year limitations period of Ark. Code Ann. § 16-56-112 (Supp. 2001) in their answer.
William Hegeman, a contractor who had known appellee for twenty years, testified that he worked on some of the houses in the Lakehill subdivision, including appellants’. He testified that he put in the footings for appellants’ house, with feathered corners instead of square corners. He also testified that he, after consultation with appellee and Taylor, made repairs to cracks in the foundation approximately two years after the original construction by caulking and covering the cracks but not painting them. He testified that the cracks would not be visible to a person who did not know that repairs had been made. He also testified that, in 1988, the grout sloped out one-half inch and estimated that, at time of trial, it had come out another inch.
Appellee William Thornsberry testified that he was notified by the Harrises that there was a crack in the foundation and that he directed Taylor and Hegeman to make repairs but not to paint over the repairs. Appellee testified that, when the property was conveyed to Rigby in March 1989, he disclosed the defects to Rigby and allowed him a credit for appellees’ not making repairs.
Appellant Howard Curry testified that, when he inspected the house with a realtor prior to purchasing it in 1991, he noticed grout in the foundation blocks and cracks along mortar joints and in the sheetrock. He testified that the foundation on the northeast corner cracked and part of it fell to the ground. He testified that, in 1994, he had a conversation concerning the house with appel-lee during which appellee stated that he (appellee) had no further obligation. Appellant testified that, in his 1996 deposition, he admitted that he had no evidence that anything was done to conceal the defects.
Appellees made an oral motion for directed verdict at the close of appellants’ case, stating that the statute of limitations in section 16-56-112 had run and that there was no fraudulent concealment. The trial court ruled that there was insufficient evidence that appellees fraudulently concealed the defects in the house. After the verdict was directed, appellees made a motion for attorney’s fees and the trial court awarded appellees $9,000 in attorney’s fees and $740 in costs. This appeal followed. Appellants raise two points: first, that the trial court erred in directing the verdict against them and, second, that the trial court erred in awarding attorney’s fees and costs.
Appellants’ first point is that the trial court erred in granting appellees’ motion for directed verdict. In determining the correctness of the trial court’s ruling, we view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. City of Little Rock v. Cameron, 320 Ark. 444, 897 S.W.2d 562 (1995). A motion for directed verdict should not be granted if there is any substantial evidence that tends to establish an issue in favor of that party. Minor v. Failla, 329 Ark. 274, 946 S.W.2d 954 (1997); Scott Truck & Tractor Co. v. Alma Tractor & Equip., Inc., 72 Ark. App. 79, 35 S.W.3d 815 (2000). Evidence is insubstantial when it is not of sufficient force or character to compel a conclusion one way or the other or if it does not force a conclusion to pass beyond suspicion or conjecture. Cameron, supra.
In directing the verdict, the trial court found no evidence of fraudulent concealment that would toll the statute of limitations found in Ark. Code Ann. § 16-56-112(a), which provides that “[n]o action in contract ... to recover damages caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repair of any improvement to real property . . . shall be brought against any person . . . more than five (5) years after substantial completion of the improvement.” Section 16-56-112(d) contains an exception for fraudulent concealment. Section 16-56-112 is a statute of repose and cannot be used to extend what would otherwise be a three-year statute of limitations period under Ark. Code Ann. § 16-56-105 (1987) for negligence or for implied contracts. East Poinsett County Sch. Dist. No. 14 v. Union Std. Ins. Co., 304 Ark. 32, 800 S.W.2d 415 (1990).
The supreme court recently addressed what constitutes fraudulent concealment:
In order to toll the statute of limitations, 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 secredy executed as to keep the plaintiffs cause of action concealed, or perpetrated in a way that it conceals itself.”
Shelton v. Fiser, 340 Ark. 89, 96, 8 S.W.3d 557, 562 (2000) (quoting Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999)). Accordingly, it is clear from our case law that not only must there be fraud but the fraud must be furtively planned and secretly executed so as to keep the fraud concealed.
Most of the evidence presented goes to whether appellees were negligent in the construction of the house and the damages suffered by appellants. Here, we are not concerned with the merits of the appellants’ underlying claims, but instead we address whether their complaint was timely filed. See Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998). The arguments made by appellants basically assert that appellee and his partner Taylor fraudulently concealed the condition of the house by budding the house with knowledge that the property was on “Enders soil” without taking countermeasures to keep the soil from expanding and contracting. Even if this could be called concealment, it was “discovered” when the Harrises discovered cracks in the foundation between May 1987 and August 1988. Appellants also contend that Hegeman’s repairing the cracks constituted another concealment that would toll the limitations period. However, when appellees conveyed the property to Rigby in March 1989, they disclosed the defects to Rigby and allowed him a credit for appellees’ not making repairs. The notice of a prior purchaser of defects in the construction of the house is imputed to the subsequent purchaser and bars the subsequent purchaser’s action for negligence or breach of implied warranties. Briggs v. Riversound Ltd. P’ship, 942 S.W.2d 529 (Tenn. Ct. App. 1996) (collecting cases). Appellant testified that, in his 1996 deposition, he admitted that he had no evidence that anything was done to conceal the defects. Further, appellant testified that, when he inspected the house with a realtor prior to purchasing it in 1991, he noticed grout in the foundation blocks and cracks along mortar joints and in the sheetrock. Appellant argues that appellee concealed the fraud when he (appellee) met with appellant in 1994 to discuss drainage problems appellant was experiencing. According to appellant, appellee denied that he built the house and that this constituted fraudulent concealment. This is not concealment because appellant, by his own testimony, shows that he was aware of problems with the construction of the house when he met with appellee. If the problem was serious enough for appellant to meet and discuss the problem with appellee, it was sufficient knowledge to commence the running of the statute of limitations. See First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992).
For their second point, appellants argue that the trial court erred in awarding attorney’s fees to appellees because appellants’ action was not based on a contract but, instead, was based in tort or on an implied contract. After the trial court directed the verdict in favor of appellees, appellees filed a motion seeking attorney’s fees of $13,110 and costs of $1,256. A detailed invoice was attached to the motion. The trial court entered an order granting appellees $9,000 in attorney’s fees and $740 in costs, after deleting certain time entries for work for appellees in other similar cases then pending.
Arkansas Code Annotated section 16-22-308 (1999) provides that “[i]n any civil action to recover on . . . [a] breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.” A trial court is not required to award attorney’s fees and, because of the trial judge’s intimate acquaintance with the trial proceedings and the quality of service rendered by the prevailing party’s counsel, appellate courts usuaEy recognize the superior perspective of the trial judge in determining whether to award attorney’s fees. Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000); Chrisco v. Sun Indus. Inc., 304 Ark. 227, 800 S.W.2d 717 (1990). The decision to award attorney’s fees and the amount to award are discretionary determinations that will be reversed only if the appellant can demonstrate that the trial court abused its discretion. Nelson v. River Valley Bank & Trust, 334 Ark. 172, 971 S.W.2d 111 (1998); Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). A grant of attorney’s fees is an issue within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Chrisco, supra.
Appellants alleged in their complaint that appellees were negligent in the construction of the subdivision and that they breached the implied warranties of fitness and habitability. There is some overlap in the proof required for each cause of action. Briggs, supra. Appellants argue that, because their cause of action was based in tort and on a duty imposed by an implied contract, section 16-22-308 does not authorize an award of fees.
There is an implied warranty of habitability in the sale of a new house in Arkansas. Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970). An action alleging a breach of the warranty of habitability is an action on the contract that authorizes the recovery of fees pursuant to an attorney fee provision in the agreement or by statute. Fairchild v. Park, 90 Cal. App. 4th 919, 109 Cal. Rptr. 2d 442 (2001); Cabal v. Donnelly, 302 Or. 115, 727 P.2d 111 (1986); Brickler v. Myers Constr. Inc., 92 Wash. App. 269, 966 P.2d 335 (1998). In Rogers v. Mallory, 328 Ark. 116, 941 S.W.2d 421 (1997), the supreme court assumed, but did not decide, that an action for breach of an implied warranty was a contract action.
Further, whether an action is based on contract or tort depends upon the nature of the right sued upon, not the form of the pleading or relief demanded. Bankston v. Pulaski County Sch. Dist., 281 Ark. 476, 665 S.W.2d 859 (1984). If based on breach of promise it is contractual; if based on breach of a non-contractual duty it is tortious. L.L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). In the final analysis we look to the pleadings to determine the nature of plaintiffs claim. Id.
In Bankston, the supreme court noted that breach of warranty actions are often hybrids of tort and contract. The court held that the complaint was primarily for tort but that it also stated a cause of action for breach of the implied warranty of fitness for habitation where it alleged the installation of a defective septic system and sought damages for the repair of the defect. The court also said that, in ascertaining whether the action is for tort or for contract, one can look to the type of damages sought. In the present case, there are allegations that appellees breached the implied warranty because the home’s foundation was defective due to the soil properties and sought damages in the amount of repairs made by appellants. Therefore, the present case was a contract action, providing the trial court with a basis to award fees under section 16-22-308.
As noted above, an attorney’s fee determination is a discretionary decision for the trial court. Here, the trial court exercised its discretion by reducing the amount of hours claimed by appellees for work on other, similar cases then pending against appellees. The trial court found that, with the elimination of these hours, the hours claimed and fees charged were reasonable. Appellants do not challenge the fees except to argue that they should have been allowed to cross-examine appellees’ attorney to determine whether there was still duplicative work in the fees that were awarded. It has been held that it is not even necessary that the trial court hold a hearing on the amount of attorney’s fees, because, having presided over the proceeding, he is familiar with the services rendered by the attorney. See Potter v. Potter, 280 Ark. 38, 655 S.W.2d 382 (1983); Lytle v. Lytle, 266 Ark. 124, 583 S.W.2d 1 (1979). We cannot say that the trial court abused its discretion.
Affirmed.
Stroud, C.J., and Neal, J., agree.
Appellee had a partner, Lee Taylor, involved in the development of the subdivision. Title to the property was solely in appellee’s name, and Taylor was not made a party to this suit.
The original complaint was nonsuited on August 13, 2001, and refiled on August 14, 2001.
The statute was amended in 2001. However, the amendment is not germane to this appeal.
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Robert J. Gladwin, Judge.
Appellant, Ann Stouffer, purchased- a home from Francis Brody in 2000. The listing agent was appellee, Kralicek Realty Company. After her purchase, appellant discovered problems with the foundation of the home, and she subsequently sued Brody and Kralicek for fraud in falsely representing the condition of the house. Kralicek filed a motion for summary judgment, which was granted by the trial court. Appellant now appeals that ruling. For the reasons explained hereafter, we dismiss the appeal.
Although the trial court granted summary judgment to Kralicek, it did not resolve or otherwise dispose of appellant’s claim against Brody. When a trial court fails to dispose of all claims against all parties, the court has not entered a final, appealable order. Ark. R. Civ. P. 54(b)(1). Recognizing this, appellant obtained a Rule 54(b) certificate, which allows a trial court to certify what would ordinarily be a nonappealable order. FIowever, we conclude that the certificate executed by the trial court in this case is insufficient to accomplish its intended purpose.
Rule 54(b) provides that, when multiple parties are involved in a case, the trial court may direct the entry of final judgment as to one of the parties “only upon an express determination, supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” If the court makes such a determination, it must execute a certificate “which shall appear immediately after the court’s signature on the judgment, and which shall set forth the factual findings upon which the determination to enter the judgment as final is based.” Ark. R. Civ. P. 54(b)(1) (2002) (emphasis added). The rule contains the following form for the certificate:
Rule 54(b) Certificate
With respect to the issues determined by the above judgment, the court finds:
[Set forth specific factual findings]
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
Certified this_day of_,_.
Judge
(Emphasis added.) In the absence of the above certificate, an order adjudicating claims against fewer than all the parties does not terminate the action. See Ark. R. Civ. P. 54(b)(2).
The Rule 54(b) certificate in this case reads as follows:
On March 12, 2002, this Court entered its Order granting Summary Judgment in favor of separate Defendant Kralicek Realty Company, Inc. That Order contained specific factual findings which the Court made and upon which the Court based its decision. Those findings are specifically incorporated here by reference as if set out herein word-for-word.
Upon the basis of the factual findings in the March 12, 2002 Order, the Court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the Court has and does hereby direct that the judgment shall be a final judgment for all purposes.
The certificate does not appear after the court’s signature on the judgment, as required by the rule, but is contained in a sepa rate document. However, the more important flaw is the lack of a specific factual finding as to why an appeal should proceed at this point. The certificate contains no findings or statements as to the trial court’s reason for entry of a final order, although it does refer to the specific factual findings in the court’s prior order. However, those findings pertain to the merits of the summary judgment, not to the reasons for the entry of a final judgment.
Because the Rule 54(b) certificate executed in this case does not contain specific factual findings upon which the decision to enter a final judgment was based, it does not conform to the requirements of the rule and is therefore ineffective to certify the appeal. Accordingly, we dismiss the appeal without prejudice to re-file upon entry of an order that complies with Rule 54(b).
Appeal dismissed.
Pittman, J., agrees.
Hart, J., concurs.
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Adree Layton Roaf, Judge.
Lee Roy Davis was charged with possession of a controlled substance with intent to deliver and possession of drug paraphernalia. After the trial court denied his motion to suppress the cocaine and crack pipe that were found in a pat-down search of his person by police. Davis entered a conditional guilty plea, reserving his right to appeal the denial of the motion to suppress. On appeal, Davis argues that the trial court erred in denying his motion to suppress because the detention, questioning, and search of his person violated the Fourth and Fourteenth Amendments and Arkansas Rules of Criminal Procedure 3.1 and Rule 3.4. We agree, and we reverse and remand.
Lieutenant Billy White and Sergeant Brandon Ivy were on bicycle patrol in a “troubled” area of El Dorado. White observed five men in the yard of a vacant house, two of whom, Davis and another man, were standing together. When the two men observed the officers, they turned and walked away quickly. Ivy stopped the men and requested that Davis state his name and date of birth. Ivy relayed to the Arkansas Crime Information Center (ACIC) the name and date of birth that Davis gave to him. ACIC returned no record for such name and birth date. When Ivy requested consent to search, Davis responded with an inquiry into the basis of Ivy’s probable cause. Davis then told Ivy that he would “give you my sh**” and reached into his pocket. Ivy told him that he would get it and then pulled a crack pipe from Davis’s pocket.
Officer White testified that the southeast area of El Dorado, near Detroit and Roosevelt Streets, was an area known for drug activity. He testified that he observed five persons in the front yard of a vacant house near this intersection, that two of them were standing side by side next to the house, and that it appeared as if they were exchanging something. Officer White admitted that he “did not see them exchange anything. They just gave the appearance as though they were exchanging something. One of them actually had his hands out as though he was receiving or giving something to the other. I didn’t see anything actually being handed back and forth.” He further testified that when these two individuals saw the officers, they “hurriedly walk[ed] away.”
Sergeant Brandon Ivy testified that he observed Davis and another person immediately separate. He stated that he intended to stop and detain Davis in order to identify him. He told Davis that he had detained him becaüse he had been seen making a hand-to-hand transaction. Upon request for his name, Davis incorrectly told Ivy that his name was John Davis and gave an incorrect birth date. Ivy testified that ACIC returned no record of such a person.
In reviewing the denial of a motion to suppress evidence, we make an independent examination based upon the totality of the circumstances and reverse only if the decision is clearly against the preponderance of the evidence. Brunson v. State, 327 Ark. 567, 940 S.W.2d 440 (1997); State v. Osborn, 263 Ark. 554, 566 S.W.2d 139 (1978); McDaniel v. State, 65 Ark. App. 41, 985 S.W.2d 320 (1999).
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain for no more than a few minutes any person whom he reasonably suspects is committing, has committed, or is about to commit a felony or a misdemeanor involving danger of forcible injury to persons or appropriation of or damage to property. See Ark. R. Crim. P. 3.1. The justification for the investigative stop depends upon whether, under the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating that the person may be involved in criminal activity. Hill v. State, 275 Ark. 71, 628 S.W.2d 284, cert. denied, 459 U.S. 882 (1982). Reasonable suspicion is defined as suspicion based upon facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. Ark. R. Civ. P. 2.1; Stewart v. State, 332 Ark. 138, 964 S.W.2d 793 (1998).
Additionally, Ark. Code Ann. § 16-81-203 (Repl. 1999) sets forth a list of factors to be considered in determining whether an officer has grounds for reasonable suspicion. Among these factors are the gait and manner of the suspect; whether the suspect is carrying anything; time of the day or night the suspect is observed; the particular streets and areas involved; any information received from third persons, whether they are known or unknown; whether the suspect is consorting with others whose conduct is “reasonably suspect”; the suspect’s proximity to known criminal conduct; incidence of crime in the immediate neighbor hood; and the apparent effort of the suspect-to avoid identification or confrontation by the police. Ark. Code Ann. § 16-81-203.
This court recently considered a case involving the propriety of an initial detention in Jefferson v. State, 76 Ark. App. 300, 64 S.W.3d 791 (2002), and reversed the conviction based on the illegality of the initial detention. In Jefferson, officers stopped the appellant after observing him walking from between two mobile homes and crossing the street; the officers became suspicious of him because of the time of night, and turned their patrol car headlights on him. When Jefferson saw the headlights, he quickly changed direction and went back to the other side of the street. The officers then ordered Jefferson to stop. As Jefferson approached the officers, he pulled something out of his pocket and dropped it on the ground. The officers later retrieved the object, which contained cocaine. This court found that the initial stop was improper as the officers were not investigating a particular crime as required by Ark. R. Crim. P. 2.2.
The Arkansas Supreme Court likewise reversed a denial of a motion to suppress in another case involving facts similar to the instant case. In Stewart v. State, 332 Ark. 138, 864 S.W.2d 793 (1998), an officer was patrolling a known drug-trafficking area when he observed the defendant standing on the street corner. Given the late hour (almost 2 a.m.), the fact that the area was known for drug activity, and that the officer had personally made numerous arrests in that area, he suspected Stewart may have been dealing narcotics. Stewart v. State, supra. The officer approached Stewart, asked her what she was doing, and asked her to remove her hands from her jacket pockets. When Stewart kept trying to place her right hand back into her jacket pocket, the officer performed a pat-down search for weapons and felt a bulge in her pocket. The officer removed the bulge, which turned out to be $135 and a matchbox containing crack cocaine. The supreme court held that the initial encounter with Stewart was impermissible under Ark. R. Crim. P. 2.2 and 3.1 because the officer lacked reasonable suspicion to stop Stewart.
In the case at bar, the officers simply saw two men standing side by side in an alleged high-crime area. The officers did not observe any criminal activity, nor did they observe a suspicious transaction. The officers did not have reasonable suspicion as defined by Rule 2.1, and they were not investigating a particular crime as required by Rule 2.2. Consequently, they failed to comply with Rule 3.1 because they lacked reasonable suspicion to stop and detain Davis.
The officers further attempted to justify the stop by showing the existence of other factors that arose afterwards, see Arkansas Code Annotated. § 16-81-203, supra, i.e. Davis’s attempt to conceal his identity, as well as his “fidgety” behavior when questioned. However, this evidence is not relevant to the determination of whether the initial stop was reasonable because it was not known at the time the officers decided that a stop was warranted. See Ornelas v. United States, 517 U.S. 690 (1996) (holding that denial of motions to suppress evidence obtained in warrantless searches should be reviewed de novo, including a determination of the historical facts leading up to the stop or search)(emphasis added). The only factors known prior to the stop were the time of day, 2:30 p.m., and the incidence of crime in the neighborhood. Even if Davis’s effort to avoid the police by turning away when they approached is considered, the information known to the officers at the time they decided to detain Davis is insufficient to supply the requisite reasonable suspicion to stop.
Reversed and remanded.
Robbins and Baker, JJ., agree.
Bird and Neal JJ., concur.
Pittman, J., dissents.
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Wendell L. Griffen, Judge.
The case arises from the rescission of a support deed. Donna Gilbert appeals through her guardian, Tracey Roberts, Gilbert’s daughter. Gilbert appeals from a chancery order rescinding a deed for real property given to her by her mother, Inez Rainey (Rainey), appellee, in exchange for Gilbert’s promise to provide Rainey care and support for life. Because Gilbert is now incapacitated, the chancellor rescinded the deed based upon the failure of consideration. Gilbert argues that the evidence was insufficient to prove that the deed was a support deed and that the chancellor erred in admitting parol evidence to explain the consideration underlying the deed. We disagree and affirm.
On April 6, 1978, Rainey and Gilbert entered into an agreement whereby the parties agreed that when Rainey became unable to care for herself in the manner to which she had grown accustomed, Gilbert would provide that level of care and comfort. Gilbert also agreed to consult with her brothers, James and Charles Rainey, with respect to major decisions concerning Rainey’s care. The consideration recited was “past and future love and affection which has been and will continue from my mother to me for due consideration in mother’s will and for other good and valuable consideration.” Gilbert maintained daily contact with her mother beginning in 1988, when Rainey began experiencing confusion and began forgetting where she placed common household items such as keys or her purse. On January 6, 1994, Rainey’s attorney drafted a quitclaim, deed on Lot 2, Block 23, Park Hill Addition to North Little Rock, under which all of Rainey’s right, title, and interest in the real estate was given to Gilbert.
This deed recited that “for and in consideration of the sum of ten and no/100 Dollars ($10.00) and other good and valuable consideration to me in hand paid by Donna Gilbert, Grantee, the receipt of which is hereby acknowledged . . . Gilbert paid Rainey one dollar and the deed was executed. After this deed was executed, Gilbert managed Rainey’s bank account and investments; painted Rainey’s home; repaired a television and bought a new television; added a carport; and built a fence in the back yard. Gilbert moved in with Rainey for a short period in 1998 but moved out in October 1998, when she moved in with her boyfriend.
In January 1999, Gilbert suffered brain damage from anoxic encephalopathy. Later that same year, Gilbert subsequently broke her hip, and her daughter, Roberts, was appointed as the permanent guardian of Gilbert’s person and estate. Roberts thereafter made some effort to look after her grandmother by having Rainey’s air conditioner serviced. However, Rainey and Roberts do not get along, and in May 1999, a mutual restraining order was issued against both parties.
On July 6, 1999, Rainey filed a complaint in chancery court seeking to set aside, rescind, and cancel the 1994 quitclaim deed. Rainey first alleged that Gilbert obtained the deed by fraud, undue influence, duress, temporary lack of capacity, and failure of consideration. However, she later amended her complaint and proceeded solely on the theory of failure of consideration. Rainey then filed a motion for summary judgment, which the court denied without a hearing. The case was tried on July 25, 2000, and August 18, 2000.
At the July hearing, over Gilbert’s objection, the chancellor admitted parol evidence regarding the consideration for the 1994 quitclaim deed. At the conclusion of this hearing, Gilbert moved for a directed verdict. The chancellor denied the motion. At the conclusion of the evidence on August 18, 2000, Gilbert moved to amend her pleadings in conformity with the proof and sought alternative relief for compensation for $9,500.63 that she testified she spent in reliance on the 1994 deed.
The chancellor found that the deed was a support deed given in exchange for Gilbert supplying for life the comforts and necessities to which Rainey had become accustomed. Because of Gilbert’s subsequent disability, the chancellor found there had been a failure of consideration. The chancellor determined that because the subject deed was a support deed, the true consideration of the deed may be proven by parol evidence. She noted that Roberts attempted to satisfy the obligations of support and caregiving to Rainey, but matters deteriorated to the point where a mutual restraining order was issued between them. The chancellor determined that the deed should be rescinded for failure of consideration, but asked the parties to find the evidence in the transcript of costs paid by Gilbert and to provide the information within ten days.
In a subsequent telephone conference with the parties’ attorneys, the chancellor awarded Gilbert $127 for a ceiling fan that she paid for and installed. She found that Gilbert did not prove that the other improvements came from her personal funds as opposed to the funds of Rainey to which she had access, or that the improvements made enhanced the value of the residence. Therefore, the chancellor rescinded the deed. Gilbert appeals from this order. We affirm.
I. Failure of Consideration
Gilbert first argues that the chancellor erred in determining that the deed was a support deed subject to rescission for failure of consideration. We review chancery decisions de novo on the record and will not reverse unless the chancellor’s findings are clearly erroneous or clearly against the preponderance of the evidence. See Ark. R. Civ. P. 52(a); Jennings v. Buford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A finding is clearly erroneous if, although there is evidence to support the trial court’s findings, on the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. See Balletti v. Muldoon, 67 Ark. App. 25, 991 S.W.2d 33 (1999); Guess v. Going, 62 Ark. App. 19, 966 S.W.2d 930 (1998). Moreover, we give due regard to the trial court’s judgment regarding the credibility of witnesses. See Ark. R. Civ. P. 52(a); First State Bank v. Phillips, 13 Ark. App. 157, 681 S.W.2d 408 (1984).
Support deeds, by which property is granted in exchange for a promise by the grantee to care for the grantor for life, are valid in Arkansas. See Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). When a deed is executed in consideration of future support and maintenance and the grantee fails to fulfill the provisions of the deed, the grantor may sue at law for damages, or may sue in equity to cancel the deed for failure of consideration. See Wood v. Swift, 244 Ark. 929, 428 S.W.2d 77 (1968); Welch v. Brewer, 267 Ark. 763, 590 S.W.2d 325 (Ark. App. 1979). Evidence of failure of consideration to justify setting aside of a deed must be clear, cogent, and convincing. See Bryant v. Bryant, 239 Ark. 61, 387 S.W.2d 322 (1965).
Gilbert argues that Rainey was not required to deed the house to her in exchange for a promise to provide future personal services, because they had an agreement in place to that effect since 1978; and therefore, the chancellor erred in finding that the deed was a support deed. She further argues that in order to show entitlement to rescission of a support deed, the grantor must show that it was the grantee’s intent to defraud the grantor from the outset. See id. Gilbert notes that the deed recites on its face that the consideration is ten dollars and other good and valuable consideration paid to Rainey; therefore, she asserts that the deed acknowledges that all of the consideration has been paid. Alternatively, she argues that there was no proof of failure of consideration because there was no evidence that she intentionally failed to support her mother, or intended to defraud her mother.
We hold that the chancellor did not err in finding that the deed was a support deed and that there had been a failure of consideration warranting rescission. Gilbert’s argument that the 1978 agreement was a support agreement would be more compelling had she lived with her mother since that time. However, that was not the case, and the 1978 agreement notwithstanding, the evidence demonstrates that the deed was a support deed.
Gilbert and Rainey testified that the 1994 deed was given in exchange for Gilbert’s promise to take care of Rainey. Charles Rainey, Gilbert’s brother, testified that Gilbert told him after she became sick that she wanted to give the house back to Rainey because she (Gilbert) was hospitalized and could no longer care for Rainey. Gilbert also testified by deposition that she wished to give the house back to her mother, although she recanted this testimony during the actual hearing. Further, the evidence demonstrates that Gilbert provided support to Rainey and lived with her for a brief period during 1998.
Further, the testimony regarding the failure of consideration is also clear. Gilbert is now unable to care for herself and lives with Roberts, who is her legal guardian. Roberts testified that Gilbert is unable to perform simple tasks such as showering herself or brushing her teeth and that she (Roberts) cares for her full-time.
Moreover, despite Gilbert’s argument to the contrary, it is not necessary for the grantor to show that the grantee intended to defraud the grantor. While a grantee’s intentional failure to support is grounds for rescission based on fraud, see Millwee v. Wilburn, 6 Ark. App. 280, 640 S.W.2d 813 (1982), the grantor is not required to show that the failure to support was intentional in order to obtain a rescission based on failure of consideration. See, e.g., Welch v. Brewer, supra (affirming a chancery order rescinding support deed where the grantees thought they were only obligated to care for the grantor for as long as they were able); see, e.g., Euin v. Faubus, 217 Ark. 238, 229 S.W.2d 244 (1950) (reversing and remanding for rescission where the grantee remarried after the support deed was given and could not thereafter continue to support her mother-in-law due to inadequate finances). Giving due deference to the chancellor’s superior position to assess the evidence and weigh the credibility of the witnesses, we hold that the evidence in this case was sufficient to support a finding that the deed was a support deed and that the deed was properly rescinded due to Gilbert’s inability to care for her mother. See Euin v. Faubus, supra.
II. Parol Evidence
Appellant further asserts that parol evidence may not be used to show that the deed was without consideration and that the failure of consideration alone is not sufficient to cancel a dded. See Bryant v. Bryant, 239 Ark. 61, 387 S.W.2d 322 (1965). Again, we find no error.
Here, the chancellor initially sustained Gilbert’s objection to the introduction of parol evidence to prove the basis for the consideration to the deed. In reversing its initial ruling, the court stated that it would admit the parol evidence to establish that additional consideration was given that was not recited in the deed. Charles Rainey thereafter testified that when Gilbert was hospitalized with her broken hip, she told him that she wanted to give the house back to Rainey, because she was no longer able to care for Rainey.
Gilbert maintains this testimony was improper because testimony tending to alter, vary, or contradict a written contract is only admissible if it tends to prove a term of the agreement about which the written agreement is silent. See Cate v. Irvin, 44 Ark. App. 39, 866 S.W.2d 423 (1993). She notes that the deed did not recite future support as consideration, but stated that the consideration had been paid in full; therefore, she asserts, the deed was not silent with regard to consideration. Finally, she asserts that parol evidence cannot be used to disprove consideration recited on the face of the deed, for the purpose of defeating the conveyance, unless fraud is alleged, and here, no fraud has been alleged. See Bryant v. Bryant, supra.
Appellant’s reliance on Bryant, supra and Cate, supra is misplaced. It is true that where a conveyance is voluntary and absolute on its face, the question of the adequacy of consideration is not grounds for setting aside a voluntary conveyance. See Millwee v. Wilburn, supra. However, that is not the issue in this case. Further, the parol evidence in this case was not used to disprove the consideration cited on the face of the deed; therefore, no finding of fraud was necessary in order for the chancellor to find that rescission was proper.
While parol evidence may not be used to contradict recitals of consideration in a deed, it may be allowed to show that the consideration has not been paid as recited or to establish that other consideration not recited in the deed was agreed to be paid if it does not contradict the terms of the writing. See Bryant v. Bryant, supra. Our courts have allowed parol evidence to be admitted to specifically prove that a deed was given in exchange for support for the duration of the grantor’s life where the deed contained no language to that effect. See, e.g., Welch v. Brewer, supra.
As in Brewer, here the parol evidence was not proffered to vary or contradict the consideration recited on the face of the deed. Rather, it was offered to prove that Rainey gave the deed to Gilbert in exchange for a promise to provide care and support to Rainey for the remainder of her life. Therefore, we hold that the chancellor did not err in admitting the parol evidence in this case.
III. Reliance Expenditures
Gilbert’s final argument is that the trial court erred in its determination that she was only entitled to be reimbursed $127. She maintains the evidence demonstrates that she spent $9,500.63 between November 1994 and September 1998 to provide for Rainey and in maintaining and improving the property on which she lived. Gilbert provided receipts for this amount and maintains that it is unrefuted that the money was spent on Rainey’s property. Gilbert also testified that she personally paid for all of the expenditures and she notes there was no proof the money came from any other source.
We hold that the chancellor did not err in finding that Gilbert was only entitled to be reimbursed $127. A simple review of the receipts offered at the hearing supports the chancellor’s finding that she was unable to determine which expenditures were made from Gilbert’s personal funds as opposed to being taken from Rainey’s funds to which Gilbert had access. There are receipts in both Rainey’s name and Gilbert’s name, but there is no indication as to where the money came from that was used to pay for the expenditures. Even after the chancellor gave Gilbert additional time to prove that she personally incurred these expenses, the only proof offered was Gilbert’s testimony that she paid for these expenses herself. The chancellor was not required to believe her testimony, particularly in light of the fact that she had difficulty remembering certain events, due to the brain damage she suffered as a result of her illness, and given that she recanted her testimony that she wished to give the house back to Rainey.
Further, it is not clear that all of these purchases were made for Rainey’s benefit. For example, the chancellor noted that the television that was purchased can be removed as personal property. In addition, Roberts testified that Gilbert built the fence because she needed a place to keep her dogs. Moreover, Rainey already had a garage, and she testified that Gilbert built the carport and that “Tracey [Roberts] did that for herself.” Finally, the chancellor found there was no evidence by which she could determine whether the improvements enhanced the value of the home, which would evince an intent to act for Rainey’s benefit.
The chancellor stated: “I looked at the evidence that had been presented in this case and I don’t think it’s the role of the Court to try and fill in the amounts and try and determine how much something was worth ... I really don’t have that evidence in the record.” She further stated that “[t]he only thing that I saw that I could reasonably find that [Gilbert] should be entitled to, would be $127.00 to hang the ceiling fans because obviously somebody hung ceiling fans that are there in the house now and they’re still there in her mother’s house.”
Given the dearth of evidence concerning the source of funds from which the improvements were made and again deferring to the chancellor’s superior position to weigh the evidence and assess the credibility of the witnesses, we cannot say that we are left with a definite and firm conviction that the chancellor erred in only awarding Gilbert $127.
Affirmed.
Stroud, C.J., and Jennings, J., agree.
Appellee does not challenge Gilbert’s competency to testify.
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Josephine Linker Hart, Judge.
Appellant, Anthony Arnez Nelson, was sentenced to a total of fifty years’ imprisonment after a Pulaski County jury found him guilty of aggravated robbery, theft of property, and kidnapping. On appeal, he contends that he was not timely brought to trial, and therefore, his convictions should be reversed and dismissed. We agree with his argument and reverse and dismiss.
On November 13, 1999, appellant was arrested in Conway, Faulkner County, for fleeing, robbery, terroristic threatening, and theft by receiving. The arrest for theft by receiving, however, was based on allegations that a car, a 1995 Chrysler LeBaron owned by Fiona Mitchell, had been stolen in Little Rock. In fact, Conway police stopped and arrested appellant for theft by receiving after determining that the vehicle appellant was driving was reported stolen by Little Rock police. On November 15, 1999, Conway police notified Little Rock authorities that they had arrested appellant on various charges, including the theft-by-receiving charge, and he was held for Pulaski County.
Appellant was convicted of the Faulkner County charges on May 12, 2000, and sentenced to a total of fifty years’ imprisonment. He was arrested that same day by Pulaski County authorities for the crimes of aggravated robbery, kidnapping, and theft of property, all crimes that allegedly occurred on November 13, 1999, in Pulaski County; an arrest warrant had been issued for appellant on November 22, 1999. On June 13, 2000, an information was filed in Pulaski County charging appellant by information with the three crimes. The information stated that the victim of the aggravated robbery and the kidnapping was Teresa Witt. The property alleged to have been stolen was the vehicle owned by Fiona Mitchell.
On January 17, 2001, appellant filed a motion to dismiss the charges filed in Pulaski County. He contended that the State was required to bring him to trial on these charges within one year from the date of his arrest, and further, his arrest in Faulkner County on the charge of theft by receiving on November 13, 1999, began the running of the time for speedy trial. Thus, he concluded that the time for bringing him to trial had passed. The trial court denied the motion, and appellant was ultimately convicted of all three counts. However, in sentencing appellant, the court calculated appellant’s jail-time credit from the November 13, 1999, arrest. Appellant raises this same argument on appeal.
In determining whether appellant was timely brought to trial on the Pulaski County charge, we observe that
[a] ny defendant charged ... in circuit court and held to bail. . . shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
Ark. R. Crim. P. 28.1(c). Further, we note that the time for trial begins to run
from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody ... to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest. . . .
Ark. R. Crim. P. 28.2(a). The periods excluded in computing the time for trial, however, include the period of delay “resulting from other proceedings concerning the defendant, including . . . trials of other charges against the defendant.” Ark. R. Crim. P. 28.3(a).
Appellant remained in the custody of Faulkner County after his arrest on November 13, 1999, until his conviction and then remained in the custody of Pulaski County, so we must determine whether from November 13, 1999, appellant was “continuously held in custody. . . to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode.” (emphasis added). If so, then the time for trial on the Pulaski County charges commenced running from his November 13, 1999, arrest in Faulkner County on the charge of theft by receiving, and the time for trial on the Pulaski County charges would have run by the time appellant filed his speedy-trial motion on January 17, 2001.
The evidence presented at the Pulaski County trial revealed that on November 13, 1999, Witt was sitting in the passenger seat of Mitchell’s car at an E-Z Mart in Little Rock. The driver, Mitchell, went into the store, leaving the engine running and the driver’s side door unlocked. Appellant then entered the car and told Witt that he would shoot her if she yelled or moved. As he started backing the car out onto the street, Witt jumped out of the car, and appellant continued backing into the street and drove away.
These acts formed the basis for the Pulaski County convictions for aggravated robbery, kidnapping, and theft of property and the basis of the arrest on the theft-by-receiving charge in Faulkner County. In our view, the basis of both the theft-by-receiving arrest in Faulkner County and the theft-of-property conviction in Pulaski County was appellant’s “control” of Mitchell’s car. See Ark. Code Ann. § 5-36-103(a)(l) (Supp. 2001) (requiring proof of “unauthorized control” of the property to establish the crime of theft of property); Ark. Code Ann. § 5-36-106(b) (Repl. 1997)(defining “receiving” in part as “control”). Thus, we conclude that appellant’s conduct that led to the theft-by-receiving arrest in Faulkner County was the “same offense” or “same conduct” that was the basis of his conviction for theft of property in Pulaski County.
We further note that our statutes provide that “[a] criminal charge of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the indictment or information,” lending further support for the conclusion that both the arrest and the conviction involved the “same offense” or “same conduct.” See Ark. Code Ann. § 5-36-102(a)(2) (Repl. 1997). We also note that “[w]hen the same conduct of a defendant may establish the commission of more than one (1) offense, the defendant may be prosecuted for each such offense.” Ark. Code Ann. § 5-l-110(a) (Repl. 1997). Appellant’s acts in Pulaski County would have supported either a theft-of-property or a theft-by-receiving charge. Because the arrest and the conviction involved the “same offense” or “same conduct,” we conclude that the time for trial on the Pulaski County charge of theft of property began to run from the date he was arrested for theft by receiving in Faulkner County, November, 13, 1999, and that he was untimely brought to trial on the theft-of-property charge. Consequently, we must reverse and dismiss his conviction for theft of property.
We also conclude that the aggravated-robbery conviction and the kidnapping conviction arose from the “same criminal episode” as the theft-by-receiving arrest, and thus, the time for trial on these charges also ran from November 13, 1999, the date of appellant’s arrest in Faulkner County on the theft-by-receiving charge. In support of this conclusion, we observe that in Johnson v. State, 337 Ark. 477, 485-86, 989 S.W.2d 525, 529 (1999), the Arkansas Supreme Court concluded that for the purposes of Rule 28.2, a capital murder conviction and a conspiracy to commit aggravated robbery were the “same criminal episode” when the victim was murdered during the aggravated robbery. Further, the Arkansas Supreme Court has defined the same or a single criminal episode broadly when interpreting that phrase in the area of joinder and severance of offenses. For instance, in Ruiz v. State, 273 Ark. 94, 97-99, 617 S.W.2d 6, 8-9 (1981), the court concluded that two murders in separate areas at different times were part of the same criminal episode. See also McMillan v. Donovan, 301 Ark. 393, 784 S.W.2d 752 (1990) (involving first-degree murder and conspiracy to commit theft of property); Parker v. State, 292 Ark. 421, 433, 731 S.W.2d 756, 762 (1987)(involving two counts of capital felony murder, two counts of attempted first-degree murder, two counts of burglary, one count of kidnapping, and one count of attempted capital murder); Johnson v. State, 290 Ark. 166, 168-69, 717 S.W.2d 805, 806-07 (1986)(involving the raping of two persons); Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986)(involving a rape and kidnapping in separate counties); Jones v. State, 282 Ark. 56, 59, 665 S.W.2d 876, 878-79 (1984)(involv-ing the first-degree battery of one person and the aggravated robbery of another). Given that the aggravated robbery and kidnapping occurred at the same time as the theft of property, we conclude that they were all part of the same criminal episode.
Finally, the State notes that the periods excluded in computing the time for trial include the period of delay “resulting from other proceedings concerning the defendant, including . . . trials of other charges against the defendant.” Ark. R. Crim. P. 28.3(a). The State argues that even if the time for trial began to run on November 13, 1999, then pursuant to Rule 28.3(a), the time required for appellant’s trial on the Faulkner County charges should be excluded in calculating the time for trial on his Pulaski County charges. In support of its argument, the State cites two cases from the Arkansas Supreme Court that excluded for speedy-trial purposes a period of delay resulting from trial on other charges where the defendant was held in a foreign jurisdiction. The court stated that the period of delay in such cases “commences when the accused is taken to the foreign jurisdiction and ends when the trial in that jurisdiction is complete and the accused becomes available for extradition.” Patterson v. State, 318 Ark. 358, 361-62, 885 S.W.2d 667, 668-69 (1994)(citing Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988)).
We note, however, that “[o]nce the defendant has made a prima facie showing of a violation of Rule 28.1, the State bears the burden of showing that there has been no violation, in that some of the time comprising the one-year period provided in the rule is to be excluded. . . .” Burmingham v. State, 346 Ark. 78, 83-84, 57 S.W.3d 118, 122 (2001). While it is apparent that appellant was being held in Faulkner County for trial on the Faulkner County charges, the State failed to present any evidence that the period of delay in bringing him to trial on the Pulaski County charges resulted from his trial on the Faulkner County charges. Nothing in the record suggests that appellant’s Pulaski County trial could not have taken place even though he was awaiting trial on the Faulkner County charges. It is the State’s burden to establish excludable periods, and without the presentation of any evidence on this issue, we cannot conclude that this period of time was excludable. See Reed v. State, 35 Ark. App. 161, 167, 814 S.W.2d 560, 563 (1991)(holding that a failure to have speedy trial on certain charges did not result from a trial on other charges in the same county and court).
Consequently, we reverse and dismiss appellant’s convictions.
Reversed and dismissed.
Griffen, Neal, and Bailer, JJ., agree.
Jennings and Bird, JJ., dissent.
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Sam Bird, Judge.
Appellant, Pauline Hartwick, appeals from an order of the circuit court that granted a roadway across Hartwick’s land to the appellees, Bradley and Connie Hill, who own land adjacent to Hartwick’s. The Hills had petitioned the county court for the establishment of a roadway across Hart-wick’s land pursuant to Ark. Code Ann. § 27-66-401 (Repl. 1994). The county court denied this petition, finding that the Hills had failed to prove the necessity for a roadway across Hart-wick’s land because, according to the evidence, the Hills had access to their land by virtue of their permissive use of a roadway that crossed the land of another adjacent owner. The circuit court, finding that absolute necessity is not required under section 27-66-401, reversed and ordered the delivery of a clerk’s deed conveying to the Hills fee simple title to a thirty-foot strip of Hartwick’s land on which the proposed roadway would lie.
Hartwick raises several points on appeal; however, we are unable to reach the merits of her arguments due to her failure to timely appeal the circuit court’s order that she challenges. We agree with the Hills’ argument that Hartwick did not timely appeal from the February 2, 2001, order of the court that granted the roadway to the Hills. Instead, Hartwick has appealed only from the court’s May 10, 2001, order that served no purpose other than to authorize the clerk to deliver a $2,640 check to appellant for the amount of damages assessed against the appellees for the taking of the roadway. Appellees argue, and we agree, that the February 2, 2001, order was a final order for purposes of appeal. Because appellant’s notice of appeal was not filed until May 18, 2001, it was not timely to appeal the court’s February 2, 2001, order.
Whether an order is final and appealable is a matter going to the jurisdiction of the appellate court. Scherz v. Mundaca Inv. Corp., 318 Ark. 595, 886 S.W.2d 631 (1994) (dismissing the appeal as untimely when a foreclosure order was final and appealable but the party did not file the notice of appeal from this order within the thirty days from the filing of the decree). A final order is one that dismisses the parties from the court, discharges them from the action, or concludes their rights to the subject matter in controversy. Harold Ives Trucking Co. v. Pro Transp., Inc., 341 Ark. 735, 19 S.W.3d 600 (2000). A final order is one that is of such a nature as to not only decide the rights of the parties, but also to put the court’s directive into execution, ending the litigation or a separable part of it. See id. A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court that made it to place the parties in their original positions; it must be such a final determination of the issues as may be enforced by execution or in some other appropriate manner. Budget Tire & Supply Co. v. First Nat’l Bank of Fort Smith, 51 Ark. App. 188, 912 S.W.2d 938 (1995). The finality of an order is not defeated because it contemplates further action that is ministerial and in furtherance of the enforcement of the court’s decision. See Smith v. Smith, 51 Ark. App. 20, 907 S.W.2d 755 (1995).
By the order filed February 2, 2001, the trial judge accepted and adopted the report of viewers who had been earlier appointed to examine the land and lay out the location of a roadway, described the location of the road way to be granted, ordered the Hills to have a survey conducted to determine the precise acreage within the roadway, established that Hartwick would incur damages in the amount of $6,000 per acre due to the loss of the land for the roadway, and ordered that a deed containing a description of the land resulting from the survey be delivered to the Hills upon payment of the damages. Any further action contemplated by this order was collateral, ministerial, and in furtherance of the enforcement of the court’s decision. See Smith, supra.
Collateral action is action that does not make any direct step toward final disposition of the merits of a case, will not be merged in the final judgment, is not an ingredient of the cause of action, and does not require consideration with the main cause of action. Such collateral and ministerial orders need not be final for purposes of Arkansas Rule of Civil Procedure 54 or Arkansas Rule of Appellate Procedure 2. Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991), overruled on other grounds by State v. Staton, 325 Ark. 341, 942 S.W.2d 804 (1996). The entry of orders pertaining to collateral and ministerial matters does not convert a final order into an order that is not final. See id.
The future action contemplated by the February 2, 2001, order included the obtaining of a survey reflecting the precise acreage in the roadway; the application of the $6,000 per acre formula that was ordered by the court as damages in the February 2, 2001, order; and the preparation and delivery of a deed upon payment of the damages. These actions are collateral to the main issues before the court, which was whether the Hills were entitled to a roadway across Hartwick’s land pursuant to Ark. Code Ann. § 27-66-401 and the amount of damages to be paid therefor. To appeal the merits of this case, Hartwick had thirty days from February 2, 2001, in which to file an appeal. See Ark. R. App. P.— Civ. 4.
Hartwick’s appeal was filed on May 18, 2001, and'designated as the order from which the appeal was taken only the May 10, 2001, order by which the court authorized the clerk to release to Hartwick the funds that had been paid by the Hills into, the court registry as damages. Hartwick does not contend on appeal that the trial court erred in its act of releasing the funds, which was the only purpose and effect of the May 10, 2001, order. Hartwick’s arguments on appeal relate to the alleged error of the trial court in granting the roadway, in allowing the Hills to place utilities on the roadway, and ordering the transfer to the Hills of fee simple title to it. Therefore, we conclude that the appeal from the May 10, 2001, order was ineffective to bring up for appellate review the actions of the trial court that were memorialized in its February 2, 2001, order.
In reaching this conclusion, we are not unmindful that the trial court entered another order on July 9, 2001, in which it found: (1) that its February 2, 2001, order “was not a final order because it did not provide for the payment of funds to [Hart-wick]”; (2) that the “final order” from which Hartwick could appeal was the May 10, 2001, order that provided for the payment of funds to Hartwick; (3) that Hartwick’s appeal from the May 10, 2001, order was timely. To the extent that the trial court’s July 9 order was an attempt to extend' the time for appealing from the February 2 order and to determine the jurisdiction of the appellate court to entertain this appeal, it is ineffective. Whether an order of the trial court is final and appealable is a matter within the jurisdiction of the appellate court. See Capitol Life & Accident Ins. Co. v. Phelps, 11 Ark. App. 464, 37 S.W.3d 692 (2001). It is the duty of the appellate court to determine whether it has jurisdiction to entertain the appeal. Tucker v. Lakeview Sch. Dist. No. 25 of Phillips Co., 323 Ark. 693, 917 S.W.2d 530 (1996).
We are also aware that, prior to the submission of this appeal for its consideration on the merits by this division, this court, sitting en banc, denied, without written opinion, a motion by the Hills to dismiss Hartwick’s appeal, raising the same arguments that they now raise in their brief. Law or Chancery Mandate, CA01-891, entered Dec. 5, 2001; Motion to Dismiss Appeal, CA01-891, filed Nov. 1, 2001. Hartwick asserts that the Hills’ argument is now barred by the law-of-the-case doctrine. We disagree. The doctrine of the law of the case “prevents an issue raised in a prior appeal from being raised in a subsequent appeal unless the evidence materially varies between the two appeals.” Richardson v. Rogers, 334 Ark. 606, 611, 976 S.W.2d 941, 944 (1998) (quoting Vandiver v. Banks, 331 Ark. 386, 391-92, 962 S.W.2d 349, 352 (1998)). The simple answer to Hartwick’s argument is that the Hills’ earlier motion was not made in a “prior appeal,” but was made in the same appeal as that now under consideration. Although it is unusual, it is neither unheard of nor prohibited for this court to deny a presubmission motion, but to grant the motion following submission of the appeal. See Simmons v. State, 341 Ark. 251, 15 S.W.3d 344 (2000); Simmons v. State, 72 Ark. App. 238, 34 S.W.3d 768 (2000). This is because a thorough examination of the complete record on appeal and, where appropriate, the transcript of the record, provides more information for our consideration than is ordinarily made available to the court by the presubmission motions and briefs of the parties. Therefore, although the Hills’ motion to dismiss this appeal was heretofore denied, following our thorough examination of the briefs and record, we are now persuaded that the February 2, 2001, order constituted the final order from which the appeal should have been taken.
Appeal dismissed.
Vaught and Roaf, JJ., agree.
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Sam Bird, Judge.
Kendrick C. Story appeals the revocation of his suspended imposition of sentence in the Columbia County Circuit Court. He contends 1) that the trial court erred in permitting the State to reopen its case after he moved for a directed verdict, and 2) that the evidence presented before the reopening of the case was insufficient to find that he violated the terms and conditions of the suspended imposition of sentence. We affirm the revocation.
In February 1999 Story was convicted of two felony counts of theft pursuant to a negotiated plea; he was sentenced on each count to a term of imprisonment and to a suspended imposition of sentence. The State filed a petition for revocation on June 2, 2005, and an amended petition on July 1, 2005, which read in part:
Amended Petition for Revocation of Suspended Imposition of Sentence
1. That on February 25,1999, the defendant was found guilty of Theft of Property (2 Counts) and was sentenced to a term often (10) years on each count in the Department of Correction and a term of five (5) years suspended imposition of sentence on each count.
2. Since that date, it is alleged that the defendant has violated the terms and conditions of his suspended imposition of sentence as follows:
(a) The defendant has tested positive and admitted use of controlled substances on numerous occasions since his release.
(b) The defendant committed the offense of Aggravated Robbery, at gunpoint, in Magnolia, Arkansas on May 11,2004.
At a revocation hearing before the trial court on July 8, 2005, the State presented evidence that Story had violated the terms and conditions of the suspended imposition of sentence. Several witnesses testified regarding the robbery of the Sonic Drive In restaurant in Magnolia on May 11, 2004. Burt Errington, a parole/probation officer in Columbia County, testified as follows:
I have records from ’98 through the present indicating that Mr. Story has violated the terms and conditions of the S.I.S. by using controlled substances. He either admitted or was tested and/or tested positive for the use of drugs on 4-25-01, 2-24-03, 3-17-03, 5-22-03, 5-29-03, 2-2-04 and 5-12-04. Over that period of time it’s been marijuana, cocaine and methamphetamine.
The State rested its case at the conclusion of Errington’s testimony.
Story moved for a directed verdict, stating the following basis:
An essential element of the case for the prosecution would be that [Story] is in fact, still under the terms and conditions of his suspended imposition of sentence. That would have been five years. That five years would begin on the day that he was released from prison. There has been no testimony by the State of what that day was[.]
The State responded that it was incumbent upon the defense to show that he had been out of prison for five years, and Story countered that the burden was on the State to show the day of release.
After hearing further argument, the court announced that it was taking the motion for a directed verdict under advisement. Story made a second motion for a directed verdict, this time on the basis that the State had not met its burden of proving that he had committed aggravated robbery. The trial court denied the second motion. Story presented his defense, renewed both motions for a directed verdict, and asked for a ruling. Again, the trial court announced that it would take under advisement the issue regarding the date of Story’s release from prison.
On August 24, 2005, the State filed a motion to reopen the record “to enable the State to present additional testimony substantiating the fact that the State of Arkansas did file a Petition to Revoke Suspended Sentence within a time frame not exceeding five years from the date the Defendant was released on parole.” By written order of October 5, 2005, the trial court granted the motion and noted the State’s failure to establish at the earlier hearing the precise periods of time during which Story had been incarcerated.
The hearing to allow the State to present additional testimony was conducted on October 14, 2005. Officer Errington again was called by the State. He stated that he had reviewed the records from the Arkansas Department of Correction. He testified that Story “was released on parole on 3-27-01. If we were to go five years and we said that’s the date, then the Petition to Revoke on S.I.S. would have been to 3-27-06. The Petition . . . has been filed certainly within that five years.”
At the conclusion of the hearing, the court found from the additional evidence and the evidence presented at the previous hearing that Story had violated the terms and conditions of his suspended imposition of sentence by using drugs and by committing armed robbery. In a written judgment and commitment order of October 17, 2005, the trial court revoked Story’s suspended imposition of sentences on the two underlying convictions of felony theft and sentenced him to five years’ imprisonment in the Arkansas Department of Correction.
Story submits in his first point on appeal that the State should not have been permitted to correct its initial failure to establish the period of time that he was incarcerated, a deficiency of proof that he had raised in a motion for a directed verdict. We agree with the State that no error occurred.
A motion for a directed verdict allows the trial court the option of either granting the motion or allowing the prosecution to reopen its case to supply the missing proof. McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003). When specific grounds are stated in a directed-verdict motion and absent proof is pinpointed, the trial court can either grant the motion, or, if justice requires, allow the State to reopen its case and supply the missing proof. Id. (citing Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Standridge v. City of Hot Springs, 271 Ark. 754, 756, 610 S.W.2d 574 (1981)). The trial court’s power to permit the State to reopen its case after the parties have rested is discretionary, and the decision to reopen will not be reversed absent an abuse of that discretion. Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993). The reasoning behind this rule is to permit omitted or overlooked evidence to get to the fact-finder before it reaches a decision, when the defendant is not surprised by the introduction or otherwise prejudiced or placed at a disadvantage that cannot be overcome. Id.
The additional evidence that the prosecution sought to introduce included dates of Story’s sentencing and release on parole, a deficiency noted by Story in his motion for a directed verdict and an essential element of the timeliness of the State’s filing its revocation petition. We hold that the trial court did not abuse its discretion in reopening the case to allow the additional evidence. Furthermore, we agree with the State that Story cannot claim that he was surprised or prejudiced by this additional evidence, as it related to dates of which he surely was keenly aware.
Story asserts in his second point on appeal that the State failed to timely present evidence at the first hearing that he was still subject to the period of suspended imposition when the State filed its revocation petition. However, evidence on this issue was presented at the subsequent hearing when the State was allowed to present additional testimony. In light of our holding that reopening the case for the presentation of additional evidence was not in error, this point becomes moot.
Affirmed.
Baker and Roaf, JJ., agree.
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Sam Bird, Judge.
This case involves writs of garnishment that appellant Rita Burkeen Sears caused to be issued in an attempt to collect a judgment for child-support arrearages of more than $73,000.00 owed to her by appellee Michael Derwin Burkeen Sr., her ex-husband. Sears appeals an order of the Garland County Circuit Court, entered on September 8, 2005, that limited to $25,300 the amount she could recover by garnishment, which was less than the $46,017.36 of Burkeen’s money that was held by the garnishee. We hold that the Garland County Circuit Court erred in limiting the amount subject to garnishment to less than the entire amount of Burkeen’s funds held by the garnishee, and we reverse and remand.
A detailed explanation of the factually complex background of this case is necessary to an understanding of our decision. The Burkeens obtained a divorce in Chancery Court of Hardeman County, Tennessee, in the early 1990s, and Burkeen was ordered in the divorce decree to pay child support. On November 11, 1992, Burkeen was injured in an accident at Wal-Mart, which led to almost a decade of litigation, including two appeals to the Arkansas Supreme Court. See Wal-Mart Stores, Inc, v. Regions Bank Trust Dep’t, 356 Ark. 494,156 S.W.3d 249 (2004); Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t, 347 Ark. 826, 69 S.W.3d 20 (2002). In the meantime, Burkeen became delinquent in his child-support obligations, and on February 7, 2003, Sears obtained a judgment in Tennessee against him for $56,893.96 in child-support arrearages accrued through January 14, 2003, plus interest accruing thereon at the rate of 12% per annum. By a consent order dated and filed March 28, 2003, the Tennessee judgment was registered as a foreign judgment in the Garland County Circuit Court. The consent order contained a finding that, as ofMarch 24, 2003, Burkeen’s child-support arrearage was $58,352.94, including accrued interest.
On December 7, 2004, the Hardeman County, Tennessee, Chancery Court entered an “Agreed Order and Decree” that provided, in pertinent part, as follows:
Upon consideration of the pleadings, exhibits, agreement of the parties, and other matters before it, the Court FINDS, ORDERS, ADJUDGES, AND DECREES:
1. [Burkeen] shall pay directly to [Sears] the lump sum of $25,000 from the settlement proceeds in Regions Bank v. Wal-Mart Stores, Inc., No. CIV-96-314 (Circuit Court, Garland County, Arkansas), which shall be credited against his current arrearage, immediately upon receipt of the settlement proceeds.
3. [Burkeen] shall pay to [Sears] the sum of $50 per month toward his remaining arrearage and shall make such payments through the Circuit Court of Garland County, Arkansas. [Bur-keen] shall immediately make such arrangements as are necessary to make such payments through the registry of the Circuit Court of Garland County, Arkansas, and shall be responsible for any fees and costs charged by the clerk. The first payment shall be due January 1, 2005, and each subsequent payment shall be due on the first day of each month thereafter.
4. [Sears] will not take any action to cause [Burkeen’s] driving or any other license privileges to be revoked so long as [Burkeen] stricdy complies with his [sic] all of his obligations under the terms of this decree.
5. Upon payment by [Burkeen] of the sum of $25,000 pursuant to paragraph 1 and [Burkeen] notifying this court and the Garland County Circuit Court of his current address, the court will dismiss [Sears’s] petition for contempt by separate order without prejudice.
6. [Burkeen’s] motion for relief from judgment is hereby dismissed without prejudice.
7. The judgment of this court dated February 7,2003, remains in force and in place, subject to any credits that [Burkeen] receives toward his arrearages as a result of any payments he makes.
On December 10, 2004, the Probate Court of Garland County entered an order approving the compromise settlement of Burkeen’s claims against Wal-Mart and authorizing the dismissal and release of those claims in consideration ofWal-Mart’s payment of $160,000. This order also approved the payment of attorney’s fees and expenses from the settlement proceeds and authorized other disbursements, “including the child support disbursement payment [sic] to Rita Sears.” An exhibit to the order set forth the sums authorized to be distributed from the settlement proceeds, specifically including $25,000 to be distributed to Sears “under child support judgment.”
Despite the December 7, 2004 Tennessee chancery court order directing that $25,000 be paid to Sears from the Wal-Mart settlement proceeds “immediately upon receipt,” and the December 10, 2004 Garland County Probate Court order approving the settlement with Wal-Mart and authorizing the payment of $25,000 to Sears from the settlement proceeds, the $25,000 was not paid. On April 28, 2005, Sears caused writs of garnishment to be issued and thereafter served upon Burkeen’s attorney, Richard S. Muse, individually, and on his law firm, Lane, Muse, Arman & Pullen (hereinafter referred to collectively as “the garnishees”), alleging that the garnishees were indebted to Burkeen or in possession of money belonging to him.
On May 5, 2005, the garnishees moved to quash the writs of garnishment, contending that, under the Tennessee court’s December 7, 2004 Agreed Order and Decree, Sears was only entitled to $25,000 from the Wal-Mart settlement proceeds, plus $50 per month to be paid by Burkeen toward the remaining arrearage. The garnishees admitted that they held the $25,000 due to Sears “in trust.” However, they contended that they were prevented from paying it to her because the Tennessee Office of Child Support had asserted a lien on the proceeds in a Tennessee proceeding, and they contended that the Tennessee court would decide to whom they should pay the $25,000 at a hearing scheduled duringjune of2005. The garnishees also filed an answer to Sears’s writs of garnishment on May 5, 2005, acknowledging that they held $46,017.36 from the Wal-Mart settlement for the benefit of Burkeen, and again asserting that Sears’s rights to any of that money were limited by the terms of the December 7, 2004 Tennessee chancery court order.
Sears responded to the garnishees’ motions to quash her writs of garnishment, denying that the December 7, 2004 Tennessee decree constituted a compromise settlement of her child-support claims against Burkeen, arguing that the Tennessee decree contained no release or waiver of her right to collect the child- support judgment or limit her rights to undertake collateral efforts to collect the judgment, and arguing that the Tennessee decree, by its express terms, provided that Burkeen’s child-support arrearages and the judgment against him were not affected by the December 7, 2004 order.
On June 13, 2005, the Garland County Circuit Court conducted a hearing on the motion to quash the writs of garnishment. Counsel for Burkeen argued that the writ should be dismissed because a hearing to be held in July in Hardeman County, Tennessee, would resolve “this whole issue.” He explained that Sears had contacted social security disability as well as the Tennessee OCS to obtain satisfaction of the Tennessee court’s December 7, 2004 order entitling her to a portion of the settlement proceeds in the personal-injury suit. Counsel stated, “The Tennessee Office of Child Support has filed a lien and served me with notice of a lien, saying you cannot pay Mrs. Sears this sum you agreed upon. It’s illegal. You must pay us and we’ll pay her.” He argued that the December 7, 2004 order was res judicata, and that “from the standpoint of an estoppel, we settled the case against Wal-Mart on condition that we had everything resolved with Mrs. Sears. ... So we have relied, to our detriment, settled the case, everything’s worked out, it’s twenty-five grand, and then other people have been brought into this to stop us.”
Counsel for Sears noted that the December 7, 2004 agreed order specifically required “payment of a $25,000 lump sum immediately upon receipt of the settlement proceeds.” He argued that the order had no release or mention of waiver, that the original arrearage judgment from Tennessee had been registered in Arkansas, that the motion by Tennessee OCS to set aside the December 7, 2004 order was not relevant to the writ of garnishment, that the Tennessee OCS lien was not effective in Arkansas, and that the money was located in Richard Muse’s law firm. He noted that Sears currently was receiving $50 a month being withheld from Burkeen’s social security. Citing Stewart v. Norment, 328 Ark. 133, 941 S.W.2d 419 (1997), he concluded that the writ of garnishment was collateral to the issues going on in Tennessee and was cumulative to the December 2004 order.
Burkeen’s attorney responded that Sears would get her money after the matter was resolved in Tennessee. The court took the matter under advisement and announced that it would issue an opinion as soon as possible. Before the opinion was issued, further proceedings took place in Tennessee.
On July 18, 2005, a hearing was conducted in Tennessee chancery court on Sears’s petition that the Burkeens be held in contempt and on the objection of Tennessee OCS to entry of the December 7, 2004 order as void. Counsel for Mr. Burkeen stated to the court:
[T]he issue is whether or not my client, Mr. Burkeen, did what the Court instructed him to do. First of all, the Court said that you are to pay $25,000 from the settlement proceeds of this lawsuit, and that it is to be credited to what money he owes. So, we’re not alleging that he doesn’t owe more money after this $25,000 is paid. . . .
The petitioning party says, “well, they didn’t pay the $25,000.” We couldn’t, Your Honor, pay the $25,000 till the money came in. That was in December. As I understand it, the money came in after the first of the year. We received ... some sort of notice from the State OCS that went into effect I think in January of that year. . . . The money is still there. The question is, do we pay it to OCS? We think we do. We think we have to. And it does not relieve my client of the additional amount that he owes. So I think he’s not in contempt.... We know that when we get through here today that if he pays the $25,000, he’s going to owe about forty something thousand dollars additional money to the State.
Ruling from the bench, the Tennessee court stated that the agreed order did not amount to a release of the entire child-support arrearage. The court stated that the agreement was binding as between the parties but had no effect on Tennessee’s right to collect the $25,000 and any other money it could collect. The court ruled that payment of the $25,000 would constitute a showing that Burkeen was purged of contempt. The court specifically found that arrearage still existed in addition to the $25,000.
On September 8, 2005, the Garland County Circuit Court issued its written order regarding the garnishees’ motions to quash the writs of garnishment. The court found that the writs should not be quashed but that, pursuant to the December 7, 2004 agreed order and decree entered by the Tennessee chancery court, Sears’s claim against the funds under the control of the appellees was limited to $25,300. Sears was awarded judgment against the garnishees in the amount of $25,300. The appeal before us is taken from that order.
Whether the trial court correctly limited Mrs. Sears’s recovery to $25,300
The agreed order and decree of December 7, 2004 required Burkeen to “pay directly to plaintiff the lump sum of$25,000 from the settlement proceeds, . . . which shall be credited against his current arrearage, immediately upon receipt of the settlement proceeds,” as well as to pay “$50 per month toward his remaining arrearage” through the Garland County Circuit Court. Sears argues on appeal, as she did below, that she never agreed that Burkeen’s payment of the $25,000 from the Wal-Mart settlement proceeds would constitute a release or waiver of his child-support arrearage or of her right to collect the child-support judgment from the settlement proceeds. She asserts that she should be permitted to levy and execute upon any ofBurkeen’s property and money that may be found, or to exercise any other remedy at her disposal, until the full amount of his arrearage is satisfied. She asserts that the arrearage exceeded $77,000 when her reply brief was filed on March 15, 2006.
Appellees accuse Mrs. Sears of forum shopping and maneuvering “to skirt a sister state’s final ruling.” They assert that her claim of entitlement to pursue an Arkansas garnishment is not a cumulative remedy. They assert that she is estopped to assert a claim to more than $25,000 of the settlement proceeds or is precluded from doing so by her “inconsistent” position in the matter, given that the intervening lien of Tennessee OCS was foreseeable to her as a recipient of aid from Tennessee and of the state’s interest. They assert that the superior lien claim of Tennessee OCS on Sears’s award prevents Burkeen from making any direct payment of the $25,000 to her, and that intervening claims, such as this lien, justify Burkeen’s non-performance in order to prevent forfeiture or double payment. They assert that the Wal-Mart case “was settled by Burkeen in reliance upon a waiver by Sears of any further claim to the settlement proceeds and a release of her garnishment writ,” and that Sears is estopped to now claim entitlement to all of his tort recovery.
Our decision in this case follows the guidance of our supreme court in Stewart, supra:
For her sole point on appeal, Stewart argues that the chancellor was clearly erroneous in finding that the income-withholding order entered on March 6,1996, provided her with the sole and exclusive method of collecting on the judgment. In support of her argument, Stewart cites Ark. Code Ann. § 9-14-234(b) (Supp. 1995), which provides that any order that contains a provision for child-support payments shall be a final judgment subject to a writ of garnishment as to accrued installments until a party moves to set aside or modify the order.
The statutory language is clear. The General Assembly has provided that an order for child-support arrearages is a final judgment subject to garnishment or execution until the order is modified or otherwise set aside. The fact that an order also provides for income withholding to satisfy accrued support arrearages is irrelevant in'determining whether garnishment provides a viable alternative method for collecting the arrearage. This conclusion is supported by Ark. Code Ann. § 9-14-202 (Repl. 1993), which states that the remedies provided in the child-support enforcement subchapter “shall not be exclusive of other remedies presently existing” and by Ark. Code Ann. § 9-14-218(a)(l)(B) (Supp. 1995), which expressly provides that the use of income withholding in orders providing for child support “does not constitute an election of remedies and does not preclude the use of other enforcement remedies.”
328 Ark. at 136, 941 S.W.2d at 420 (emphasis added).
We reject appellees’ argument that it was impossible to pay Mrs. Sears the $25,000 as a lump sum and that Mrs. Sears should be estopped from attempting to recover the previous judgment of arrearage. Clearly, the December 7, 2004 Tennessee chancery court order contains no language to suggest that, by accepting $25,000 of the Wal-Mart settlement proceeds, Sears released the balance of the judgment or waived her right to collect it. While she could have agreed to receive only $25,000 from the Wal-Mart settlement in full satisfaction of her judgment, there is no language in the agreed order of December 7, 2004 that she did so. Nothing in the agreed order precludes her from exercising whatever legal remedies are available to judgment creditors in general for the collection ofjudgments. Sears’s right to recover the entire amount of her judgment was in no way restricted by the Tennessee court’s December 7, 2004 order, which expressly provided that the court’s February 7, 2003 judgment remained in effect, subject only to any credits applied for payments made by Burkeen.
The writs of garnishment here were nothing more than Sears’s exercise of her lawful remedy to execute on $46,017.36 of Burkeen’s money in the possession of his lawyers. Just as the withholding order in Stewart, supra, was not the payee spouse’s sole remedy, the December 7, 2004 order that Sears was entitled to $25,000 of the settlement funds did not constitute an election of remedies that precluded her use of garnishment or any other lawful remedy to collect money belonging to Burkeen, such as the $46,017.36 held in the law firm’s client trust account for his benefit. Clearly, under Arkansas law, an order for the payment of a portion of a judgment from a specific source does not prohibit the judgment creditor from also exercising other lawful means to pursue the full satisfaction of the judgment. See Stewart, supra; see also Ark. Code Ann. § 9-14-202 (Repl. 2002).
Nor are we persuaded that, because Tennessee OCS claims to have a lien against the Wal-Mart settlement proceeds, the garnishees were prevented from paying $25,000 to Sears as required by the December 7, 2004 agreed order. While it does appear from the transcript of the July 18, 2005 hearing that the Tennessee chancery court held that Tennessee OCS was not bound by the December 7, 2004 agreed order, the effect of that holding was to merely recognize that Tennessee OCS claimed a lien that was not affected by the parties’ agreement. However, other than the bare assertion by the garnishee’s attorney that the garnishees have been served by Tennessee OCS with notice of a lien, there is nothing in the record before us to indicate that Tennessee OCS has taken any action to enforce its lien in the Garland County Chancery Court, which is the court with jurisdiction over Burkeen’s funds that are the subject of Sears’s garnishment. In the absence of Tennessee OCS’s intervention in Garland County Chancery Court to enforce its lien, there is no such lien to be enforced in this proceeding.
We affirm the trial court’s denial of the motions to quash the writs of garnishment, but we reverse its ruling that Sears’s garnishment is limited to only $25,300, and we remand to the trial court for the entry of judgment in favor of Sears consistent with this opinion. Because the garnishees did not file a cross-appeal, we will not address their contention that the trial court’s order should be reversed in part to show that Burkeen is current with his $50 monthly child-support payments.
Finally, we note that Regions Bank has filed a brief in which it has renewed its motion that it be dismissed as a party to this appeal. On January 25, 2006, we denied a similar motion. However, in view of the foregoing disposition of this appeal, we agree with Regions that it has no interest whatsoever in the conflict that is the subject of this appeal, and we grant its motion.
Affirmed in part; reversed and remanded in part; motion by Regions Bank granted.
Vaught and Roaf, JJ., agree.
Throughout the lengthy history of this case, Michael Derwin Burkeen Sr. has been identified in a variety of legal proceedings, in some as a competent individual, sui juris, and in some as an incompetent ward with a duly-appointed guardian. For the purpose of simplification, throughout this opinion Michael Derwin Burkeen Sr. is denominated merely as Burkeen, whether he is being referred to in his individual capacity, in his capacity as a ward under guardianship, or to the guardianship estate.
The record on appeal contains a transcript but no written order of this Tennessee proceeding.
The personal-injury claim was brought against Wal-Mart by Linda Burkeen, individually and as guardian of the person and estate of Michael Burkeen. Regions Bank was substituted prior to trial as guardian of the estate. See Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t, 347 Ark. 826, 69 S.W.3d 20 (2002), n.1.
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Bruce T. Bullion, Special Judge.
The appellant was convicted in a jury trial of possession of a controlled substance with intent to deliver and was sentenced as an habitual offender to thirty years in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in denying his motion to suppress. We affirm.
In reviewing a trial court’s decision to deny an appellant’s motion to suppress, this Court makes an independent determination based on the totality of the circumstances and will reverse the trial court’s ruling only if it is clearly against the preponderance of the evidence. Roark v. State, 46 Ark. App. 49, 876 S.W.2d 569 (1994). As the preponderance of the evidence turns heavily on the question of credibility, we defer to the superior position of the trial court in making the determination of which evidence is to be believed. Folly v. State, 28 Ark. App. 98, 111 S.W.2d 306 (1989).
At the suppression hearing, Chris Oldham, an officer with the Little Rock Police Department, testified that on the evening of January 20, 1993, he and other officers were checking the area of 1811 Wolfe Street for reported drug activity. He testified that they had previously made numerous arrests and received nightly complaints of narcotics activity in that area. While on patrol, Officer Oldham and Officer Dennis Ball pulled in behind a brown Buick stopped in the middle of the street. The vehicle was on the wrong side of the street facing in the wrong direction. A black male, later identified as Shannon Williams, was leaning against the vehicle. As the officers pulled up, Mr. Williams quickly walked away. Officer Oldham stopped Mr. Williams and questioned him. Mr. Williams told the officer that the appellant, who was the driver of the vehicle, attempted to sell him cocaine. Officer Oldham relayed this information to Officer Ball who approached the vehicle and tried to contact the appellant. The appellant initially rolled up the windows of the car and locked the door. However, the appellant subsequently opened the door and exited the vehicle.
Two other officers had to assist in restraining the appellant after he exited the vehicle. Officer Ball testified that the appellant made repeated attempts to put his hand in his left coat pocket. He testified that for his own protection, he conducted a pat down search of the appellant. He further testified that when he did so, he felt a large bulge in the appellant’s pocket. The officer retrieved a plastic bag with fourteen rocks of cocaine from the appellant’s pocket. Officer Ball testified that he believed a narcotics transaction was occurring. He based his belief on his experience and on his observations that Williams was leaning into the driver’s side of the window and quickly left the vehicle after the officer’s arrival, that the appellant’s vehicle was stopped on the wrong side of the street facing in the wrong direction, that the area was known for drug activity, and that it was after dark.
The appellant argues that the trial court erred in failing to suppress the cocaine because the officers did not have probable cause to stop and search him. We disagree.
Arkansas Rule of Criminal Procedure 3.1 provides that a law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. “Reasonable suspicion” is defined 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. Ark. R. Crim. P. 2.1. The justification for the investigative stop depends on whether the police have a particularized, specific, and articulable reason indicating the person or vehicle may be involved in criminal activity. Folly v. State, supra. One factor that can be considered in determining whether reasonable suspicion exists is the apparent effort of a person to avoid identification or confrontation by the police. Roark v. State, supra.
Here, the officers found the appellant sitting in a car stopped in a suspicious manner. Mr. Williams was observed leaning into the window of the vehicle and was observed quickly leaving the vehicle after the officers arrived. Mr. Williams informed one of the officers that the appellant was selling cocaine. The appellant then refused to exit the vehicle or even open the door or window when approached by an officer. When he did finally exit the vehicle, he repeatedly attempted to reach for something in one of his pockets and had to be restrained by the officers. Considering the totality of the circumstances, we cannot say that the officers were not justified in reasonably suspecting that the appellant was involved in criminal activity.
Furthermore, Arkansas Rule of Criminal Procedure 3.4 provides that if a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. Given the appellant’s behavior and the fact that he had to be restrained because he repeatedly attempted to reach for something in his coat pocket, we cannot say that the officer was not justified in conducting the pat down search for protection.
Moreover, we find no error in the officer’s seizure of the cocaine. The United States Supreme Court held in Minnesota v. Dickerson, 113 S. Ct. 2130 (1993), that police officers may seize nonthreatening contraband during a protective pat down search so long as the officer’s search stays within the bounds marked by Terry v. Ohio, 392 U.S. 1 (1968). In Dickerson, the Court stated:
If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.
113 S. Ct. at 2137.
Here, the officers were justified in stopping and frisking the appellant. Officer Ball testified that, based on his experience as a law enforcement officer, it was apparent to him that what he felt in the appellant’s pocket was a bag of cocaine. Thus, the seizure did not invade the appellant’s privacy beyond that already authorized by the officer’s search for weapons. Therefore, we cannot say that the trial court’s ruling is clearly against the preponderance of the evidence and we affirm the trial court’s denial of the appellant’s motion to suppress.
The appellant also argues that his statement to officers after his arrest should have been suppressed as “fruit of the poisonous tree.” However, the appellant did not argue this to the trial court and hence it is not preserved for appeal. Walker v. State, 314 Ark. 628, 864 S.W.2d 230 (1993). We will not address an argument that was not presented to the trial court for consideration. Id.
Affirmed.
Jennings, C.J., and Rogers, J., agree.
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Judith Rogers, Judge.
We must dismiss this appeal from the Sebastian County Chancery Court because appellants, Budget Tire & Supply Co., John A. Griffin, and Stephen Griffin, failed to file a timely notice of appeal as required by Rule 4(a) of the Arkansas Rules of Appellate Procedure.
On February 14, 1994, appellants filed their notice of appeal “from the final order entered in this case on January 26, 1994.” The January 26, 1994, order, however, is simply the chancellor’s confirmation and approval of a commissioner’s report of the sale of real and personal property in foreclosure. An order approving the commissioner’s deed and a commissioner’s bill of sale were also entered on that date.
The sale of this real and personal property followed the entry of a consent decree on November 16, 1993, in an action styled First National Bank of Fort Smith, Arkansas v. Larry C. Womack, Jr., et al., which had been consolidated with appellees Greg and Donna Whitsitt’s lawsuit against appellants in the chancery court. The November 16, 1993, consent decree gave judgment in rem against real and personal property securing a debt owed appellee First National Bank by Larry and Deborah Wom-ack and appointed the clerk as commissioner to sell the property in satisfaction of the judgment. The personal property to be sold included “all equipment existing or acquired and proceeds located at business conducted at 3019 Grand Avenue and 4601 Rogers Avenue.” Ownership of a few of the items of personal property included in the consent decree was, however, also determined in a previous decision styled “Findings of Fact and Conclusions of Law” entered on April 30, 1993, wherein the chancellor determined the relative rights of appellants and the Whitsitts.
On appeal, appellants’ argument is based upon alleged errors in the April 30, 1993, decision. In order to determine whether appellants should have filed a notice of appeal within thirty days of the April 30, 1993, decision, it is first necessary to decide whether that decree was a final order.
For an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Lamb v. JFM, Inc., 311 Ark. 89, 91, 842 S.W.2d 10 (1992). For a judgment to be final, it must be of such a nature as to not only decide the rights of the parties, but to put the court’s directive into execution, ending the litigation or a separable part of it; Pledger v. Bosnick, 306 Ark. 45, 49, 811 S.W.2d 286 (1991), cert. denied, 113 S.Ct. 3034 (1993); Mid-State Homes, Inc. v. Beverly, 20 Ark. App. 213, 214, 727 S.W.2d 142 (1987); Smith v. Flash TV Sales & Serv., Inc., 17 Ark. App. 185, 188, 706 S.W.2d 184 (1986). A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original positions; it must be such a final determination of the issues as may be enforced by execution or in some other appropriate manner. Estate of Hastings v. Planters and Stockmen Bank, 296 Ark. 409, 412, 757 S.W.2d 546 (1988). Accord Pledger v. Bosnick, supra.
Arkansas Rule of Civil Procedure 54(b) provides that an order which disposes of fewer than all of the claims or all of the parties is not a final appealable order unless the court makes an express determination that there is danger of hardship or injus tice which an immediate appeal would alleviate. See Freeman v. Colonia Ins. Co., 319 Ark. 211, 213, 890 S.W.2d 270 (1995). Under Rule 54, the trial court may direct the entry of final judgment with regard to fewer than all of the claims or parties by an express determination that there is no just reason for delay. Maroney v. City of Malvern, 317 Ark. 177, 181, 876 S.W.2d 585 (1994). The fundamental policy behind Rule 54(b) is to avoid piecemeal appeals. Cortese v. Atlantic Ritchfield, 320 Ark. 639, 640, 898 S.W.2d 467 (1995). An order merely announcing the court’s determination of the rights of the parties, but contemplating further judicial action, is not appealable. Bonner v. Sikes, 20 Ark. App. 209, 213, 727 S.W.2d 144 (1987). An order dismissing certain parties but leaving other claims and parties remaining in a case is also not a final order. Otter Creek Mall v. Quinn Cos., Inc., 297 Ark. 136, 137, 759 S.W.2d 810 (1988).
In State Farm Mutual Automobile Insurance Co. v. Thomas, 312 Ark. 429, 431-32, 850 S.W.2d 4 (1993), the supreme court stated:
This court will only review final matters on appeal. Ark. R. App. P. 2(a). A judgment which adjudicates fewer than all of the claims of all of the parties does not terminate the action. Ark. R. Civ. P. 54(b). The failure to comply with Rule 54(b) by the absence of an order adjudicating the rights of all parties is a jurisdictional issue that we are obligated to raise on our own. Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992); Quality Ford, Inc. v. Faust, 307 Ark. 371, 820 S.W.2d 61 (1991). We have held in this regard that for an order to be final and appealable, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id. It is not enough to dismiss some of the parties; the order must cover all parties and all claims in order to be appealable. See Parks v. Hillhaven Nursing Home, 309 Ark. 373, 829 S.W.2d 419 (1992).
Clearly, the April 30, 1993, decision was not a final order for purposes of appeal because all of the claims in the consolidated case involving the bank’s action against the Womacks, including those relating to the items of personal property, remained for trial.
Next, it is necessary to determine whether the November 16, 1993, consent decree was final for purposes of appeal. An order determining the parties’ rights and obligations in a foreclosure action but failing to provide for execution and indicating that further judicial action would be necessary before foreclosure and execution would be ordered is not a final appealable order. Scaff v. Scaff, 5 Ark. App. 300, 302, 635 S.W.2d 292 (1982). A decree granting foreclosure and placing the court’s directive into execution is, however, final and appealable. McAdams v. Automotive Rentals. Inc., 319 Ark. 254, 256, 891 S.W.2d 52 (1995). An appeal taken from a decree granting foreclosure must be taken within thirty days from the date that order is entered. Id. A decree confirming a foreclosure sale is also a separate, final, and appealable order, and a notice of appeal must also be given within thirty days of that decree. Id. In Scherz v. Mundaca Investment Corp., 318 Ark. 595, 597, 886 S.W.2d 631 (1994), where the supreme court held that a decree was final because it placed the court’s directive into execution and no additional orders were required prior to a foreclosure sale. In Scherz, the court relied upon Alberty v. Wideman, 312 Ark. 434, 437, 850 S.W.2d 314 (1993), where the supreme court stated:
Thus, a decree that orders a judicial sale of property and places the court’s directive into execution is a final order and appealable under Ark. R. App. R 2(a)(1). When there is such an order, a certification under Rule 54(b) is not necessary. Such a rule is very practical. Under it, the parties are able to appeal an order directing a judicial sale and have a determination of the issues at that time. If it were otherwise, and there were questions about the validity of sale, prospective bidders might not bid a reasonable amount because there would be a cloud over the matter, and no one wants to buy a lawsuit. Those issues can be finally determined under our procedure. As a separate matter, any questions concerning the validity and adequacy of the bids might be heard on a later appeal from the order confirming title.
In Watanabe v. Webb, 320 Ark. 375, 379-80, 896 S.W.2d 597 (1995), the supreme court followed Scherz v. Mundaca Investment Corp., supra, and Alberty v. Wideman, supra, in dismissing an appeal from a foreclosure decree because the appellants’ notice of appeal was not filed within thirty days. The court did, however, hear that part of the appeal dealing with the trial court’s confirmation order, from which a timely notice of appeal was filed.
Rule 4(a) of the Arkansas Rules of Appellate Procedure controls the time in which an appeal must be filed and provides: “Except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from.” The failure to file a timely notice of appeal deprives this court of jurisdiction. Williams v. Hudson, 320 Ark. 635, 636, 898 S.W.2d 465 (1995); Rossi v. Rossi, 319 Ark. 373, 374, 892 S.W.2d 246 (1995).
We therefore hold that the April 30, 1993, decision was not a final order from which appellants should have filed a timely notice of appeal. However, the only issues for which a timely appeal has been taken relate to the confirmation and approval of the report of the foreclosure sale, and appellants have not alleged error in that sale. Because appellants did not file their notice of appeal within thirty days from the entry of the November 16, 1993, consent decree, which was final and appealable, this court lacks jurisdiction to hear this appeal.
Dismissed.
Mayfield, J., dissents.
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John Mauzy Pittman, Chief Judge.
Appellant was charged with committing aggravated assault and domestic battery. After a bench trial, she was found guilty of one count of aggravated assault and one count of aggravated assault on a family member. On appeal, she argues that the trial court erred in refusing to grant a directed verdict on the ground that the State failed to prove that appellant engaged in conduct that created a substantial danger of death or serious physical injury. We affirm.
A motion for directed verdict is viewed as a challenge to the sufficiency of the evidence. Henson v. State, 94 Ark. App. 163, 227 S.W.3d 450 (2006). The test for determining evidentiary sufficiency is whether there is substantial evidence to support the finding of guilt; on appeal, the court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. 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. Schwede v. State, 49 Ark. App. 87, 896 S.W.2d 454 (1995).
A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5-13-204(a)(l) (Repl. 2006). A person commits aggravated assault on a family or household member if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to a family or household member. Ark. Code Ann. § 5-26-306(a) (Repl. 2006).
Viewing the evidence in the light most favorable to the appellee, the record shows that appellant was involved in a week-long affair with Virgil Ware that resulted in the birth of a child. There had recently been acrimonious legal proceedings between appellant and Mr. Ware concerning custody of the two-year-old child. As a result, appellant was under a restraining order to avoid contact with Mr. Ware.
On June 21, 2005, appellant drove to Mr. Ware’s home, opened her car door, and shouted something about the child. Appellant then got out of her car and, using a razor, began scratching the side and back of a car belonging to Mr. Ware’s girlfriend, Danielle Utsey. When Mr. Ware attempted to intervene, appellant said that she “got something for him” and attacked Mr. Ware with a baseball bat. As they struggled, appellant struck Mr. Ware on the head with the bat, then swung at him and missed, the blow being delivered with sufficient force to break a car window.
By this time, Ms. Utsey and her sister Monica had come outside and were standing on the sidewalk by the street. Appellant then re-entered her car. Ms. Danielle Utsey described the subsequent events as follows:
[S]he backed back and then tried to ran us over. So we like ran in the ditch. And after that she pulled off. She drove her car toward me I would say about three times. When she was doing that Virgil was like beside me. Right beside me to my left, and Monica was to my right. I know she wasn’t just trying to drive off down the street because there’s a ditch. She drove off this way toward us — where the ditch is at, drove right — ran us in the ditch. She almost went in the ditch. If she went any further, she wouldn’t have been able to back up and get out of the ditch.
Ms. Monica Utsey testified that:
[Mr. Ware] wrestled her back to the car. And she just — she got in the car and I was like, Danielle, she’s going to hit us. So we come back up in the yard. And just then she ran into the ditch trying to hit us with the car.
Mr. Ware recalled the event as follows:
At that point, she jumped in her car to leave. She jumped in her car, but she didn’t leave. She tried to hit me with the car once and then when Monica and them made it to the street — when Monica and Danielle made it to the street, she tried again. Then she tried — the last time she did, she ran in the ditch and then she backed up.
Appellant’s sole argument for reversal is that, with regard to the assault convictions, the testimony that she tried to hit the victims with her car does not constitute substantial evidence that she engaged in conduct that created a substantial danger of death or serious injury to the victims. We do not agree. The fact-finder does not and need not view each fact in isolation, but rather considers the evidence as a whole. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). Here, the testimony regarding appellant’s attempt to run over the victims can be considered in light of the evidence that appellant, in violation of a no-contact order, drove to Mr. Ware’s home and engaged in various acts of violence including property damage and physical injury to Mr. Ware by hitting him over the head with a baseball bat. Nor is the fact-finder required to set aside common sense. An automobile is a massive and powerful machine, and common sense tells us that such a machine is capable of inflicting death or serious physical injury to pedestrians even at relatively low speeds. The Arkansas Supreme Court has held that, under some circumstances of use, an automobile might constitute a deadly weapon. Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976). We hold that, in light of the evidence that appellant, after engaging in a rampage, intentionally attempted to strike the victims with her vehicle, there is substantial evidence that appellant engaged in conduct that created a substantial danger of death or serious injury to the victims.
Affirmed.
Bird and Neal, JJ., agree.
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Judith Rogers, Judge.
We previously rendered an unpublished opinion in this case, Jordan v. Tyson Foods, CA 94-705 slip op. (Ark. App. June 7, 1995), reversing and remanding the case back to the Commission. In response to this opinion, Tyson Foods petitioned this court for rehearing contending that we erred in our decision to reverse the Commission’s decision. After thoroughly reviewing the case en banc, we grant Tyson’s petition for rehearing and now affirm the Commission’s decision.
On June 4, 1990, Jack Jordan sustained a compensable injury to his right shoulder while working for Tyson Foods. Compensation was paid, and Mr. Jordan was off work for thirty days. In December of 1990, Mr. Jordan voluntarily quit working for Tyson. Mr. Jordan has not been employed since that time. On April 26, 1991, Mr. Jordan claimed that while he was getting out of bed he stretched his arms and his right shoulder dislocated. Subsequently, he filed a claim for additional benefits on June 28, 1991. The Commission found that Mr. Jordan had failed to prove by a preponderance of the evidence that he remained within his healing period from April 26, 1991, through December 2, 1991.
On appeal, Mr. Jordan argues that the Commission’s finding that he failed to prove entitlement to additional benefits is not supported by substantial evidence. We disagree.
In workers’ compensation cases, the claimant has the burden of proving by a preponderance of the evidence the com- pensability of his claim. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992). Where the Commission denies a claim because of the claimant’s failure to meet his burden of proof, the substantial evidence standard of review requires that we affirm the Commission’s decision if its opinion displays a substantial basis for the denial of relief. Johnson v. American Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). In making our review, we recognize that it is the function of the Commission to determine the credibility of the witnesses and the weight to be given their testimony. The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (1989). And, the Commission has the authority to accept or reject medical opinion and the authority to determine its medical soundness and probative force. Id.
First, we note that Mr. Jordan failed to abstract any medical evidence presented in this case. The only evidence in this case that Mr. Jordan chose to abstract was a portion of his testimony and a portion of his wife’s testimony. It is well established that appellant is required to abstract all relevant material pertaining to the issues on appeal. Ark. Sup. Ct. R. 4-2(a)(6). In this case appellant has failed to adequately abstract all relevant evidence and comply with Rule 4-2(a)(6). See Rapley v. Lindsey Const. Co., 5 Ark. App. 31, 631 S.W.2d 844 (1982).
Despite Mr. Jordan’s flagrantly deficient abstract, the record indicates that there is no evidence restricting or prohibiting Mr. Jordan from working between April 26,1991, and December 2,1991. In fact, Mr. Jordan testified that he had been actively seeking employment during this time. The Commission found that Mr. Jordan offered insufficient medical evidence indicating that he remained within his healing period or that he remained totally incapacitated from working during that period of time. The Commission noted that “any indication that claimant was totally incapacitated from working comes directly from the claimant. ... Claimant’s testimony when considered in conjunction with the other evidence of the record does not constitute the preponderance of the credible evidence.” After reviewing the record, we cannot say that there is no substantial basis for the Commission’s denial of additional temporary total benefits.
Next, Mr. Jordan argues that there is no substantial evidence to support the Commission’s finding that Tyson is not liable for his additional medical expenses.
The record reveals that Mr. Jordan did not notify Tyson until after he sought medical treatment and after surgery had been performed. It is also clear that Mr. Jordan did not return to his primary treating physician who treated him at the time of his com-pensable injury. The record indicates that Mr. Jordan was treated by an unauthorized physician. The record also reveals that Mr. Jordan filed the claim for medical benefits with his wife’s insurance, then waited several months after his surgery and after he had hired an attorney to notify Tyson that he had had a recurrence of his compensable injury and was in need of treatment.
Arkansas Code Annotated § 11-9-514 (Supp. 1993) provides that treatment or services furnished or prescribed by any physician other than the ones selected according to the statute, except for emergency treatment, shall be at the claimant’s expense. The Commission found that the medical treatment received by Mr. Jordan was unauthorized and, therefore, Mr. Jordan was responsible for the costs. We cannot say that there is no substantial evidence to support the Commission’s decision based on the record before us.
Mr. Jordan also contends that the Commission failed to make findings as to whether his medical treatment was emergency treatment.
As Tyson points out in its brief and as the record displays, this argument was not raised below before the ALJ or before the Commission. Because we do not consider issues raised for the first time on appeal, we decline to address Mr. Jordan’s final point. See Mosley v. McGehee School Dist., 36 Ark. App. 11, 816 S.W.2d 891 (1991).
In conclusion we note that in the previous appeal of this case, we stated that it appeared that the April 26,1991, occurrence was related to the June 1990 injury and, therefore, compensable. This determination constituted a de novo review rather than a review of the evidence in the strongest light in favor of the Commission’s findings. We erroneously weighed the evidence at the appellate level, and perhaps inadvertently overlooked that the Commission’s findings of fact may have been based on credibility determinations that we could not make. Since a thorough review of the record has precipitated that decision, it is our conclusion to grant the petition for rehearing and reverse ourselves on matters where we may have misspoken. Our error was not one of willfulness, but was an honest attempt to reconcile the later injuries with the earlier accident. We were wrong in our review and reverse our earlier opinion. In sum, we grant the petition for rehearing and affirm the Commission’s decision denying additional temporary total benefits.
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Robert J. Gladwin, Judge.
Appellant Daniel Fields filed this appeal disputing the trial court’s order denying his motion to set aside default judgment and motion to dismiss, and granting appellee Terri Rankin Byrd’s motion to strike appellant’s amended answer and her motion to substitute parties. We reverse and dismiss.
Appellee underwent oral surgery performed by appellant on April 6, 1999, which she claims left her with a burning sensation on her tongue. After the alleged malpractice occurred, appellee executed and filed a Chapter 7 voluntary bankruptcy petition on March 24, 2000. The petition did not list or schedule her medical-malpractice claim as an asset or contingent asset of the estate. When appellee testified about her assets in bankruptcy court at the first creditors’ meeting, she denied having any claims or litigation against anyone. She never disclosed her medical-malpractice claim to the trustee. Appellee was discharged from bankruptcy on July 11, 2000. She filed her medical-malpractice claim against appellant on January 29, 2001. No answer was filed. Appellee’s motion for default judgment against appellant was filed March 20, 2001. After appellant received the motion, he filed a belated answer on April 9, 2001. The trial court granted a partial default judgment on liability in an order entered January 2, 2002. Appellant filed a motion for continuance and to set aside the default judgment and dismiss, or alternatively to give notice to the United States bankruptcy trustee of the pendency of the action on July 24, 2002. On July 31, 2002, appellant filed an amended answer. Appellee filed a motion to strike the amended answer and a motion to substitute parties, seeking to substitute Richard L. Cox, bankruptcy trustee, as the real party in interest. After a hearing on all the motions, the trial court entered an order on March 10, 2003, denying the appellant’s motion to set aside the default judgment and denying his motion to dismiss. Further, the trial court granted appellee’s motion to strike the amended answer and her motion to substitute parties. After the trial court ruled in the hearing in favor of the appellee as to liability, the appellant moved for a stay in order to appeal before the hearing on damages, and the trial court allowed it.
Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure - Civil provides that an appeal may be taken only from a final judgment, order, or decree entered by the trial court. Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999). Whether a final judgment, decree, or order exists is a jurisdictional issue that this court has the duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Id. Arkansas Rule of Civil Procedure 54(b) states that an order which disposes of fewer than all of the claims of all of the parties is not a final appealable order unless the court makes an express determination that there is a danger of hardship or injustice, which an immediate appeal would alleviate. See Freeman v. Colonial Ins. Co., 319 Ark. 211, 890 S.W.2d 270 (1995). When the trial court does not make the required certification, the order is not final for appellate purposes. Id.
Conversely, Arkansas Rule of Appellate Procedure - Civil 2(a)(4) provides that an appeal may be taken from a circuit court to the Arkansas Supreme Court from an order which strikes out an answer, or any part of an answer, or any pleading in an action. The Arkansas Supreme Court has held that the specific provision for appeal when an answer is stricken must control over the general provisions contained in Ark. R. App. P. — Civil 2(a)(1) and Ark. R. Civ. P. 54(b). Arnold Fireworks Display, Inc. v. Schmidt, 307 Ark. 316, 820 S.W.2d 444 (1991). Therefore, even though the trial court’s ruling is not a final, appealable order because damages have not been tried, the specific rule supplied in Ark. R. App. P.-Civ. 2(a)(4) controls.
Appellant’s first point on appeal is whether the trial court erred in striking appellant’s amended answer to the complaint, denying the motion to set aside default judgment and dismiss, and granting appellee’s motion to substitute parties, because appellee did not have standing and the trial court was without jurisdiction due to appellee’s failure to follow federal substantive bankruptcy law concerning pre-bankruptcy petition claims. The standard of review for denial of a motion to set aside a default judgment is whether the trial court abused its discretion. B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 830 S.W.2d 835 (1992). Appellant argues that this case is analogous to wrongful-death claims and survival claims in that, where plaintiffs fail to follow substantive procedures for filing, the complaints are a nullity and courts are without jurisdiction to consider them. Ramirez v. White County Circuit Court, 343 Ark 372, 38 S.W.3d 298 (2001).
Congress, pursuant to the United States Constitution, Article 1, Section 8, establishes uniform laws on the subject of bankruptcy. The bankruptcy trustee is the primary person responsible for marshaling the assets of the bankrupt estate and for administering the claims and debts of the debtor. 11 U.S.C. § 541(a) (1994). The debtor has the duty to schedule assets and to cooperate with the trustee in the performance of his statutory duties. 11 U.S.C. § 521(1), (3) (1994). The estate encompasses all legal or equitable interest of the debtor in property as of commencement of the case. 11 U.S.C. § 541(a)(1).
All property of the estate remains in the estate and does not vest in the interest of the debtor unless: (1) after notice and hearing the trustee abandons the property; (2) the court orders abandonment of property that is burdensome to the estate or of inconsequential value and benefit; or (3) the property is scheduled as an asset and is not otherwise administered in the bankruptcy. 11 U.S.C. § 554(a)~(c) (1994). However, unscheduled assets never vest in the debtor and the property remains in the estate even after the bankruptcy case is closed for all other purposes. 11 U.S.C. § 554(d).
When a trustee is appointed to administer the property of the estate in bankruptcy, he has the exclusive right to prosecute causes of action that are the property of the bankrupt estate. 11 U.S.C. §§ 323(a)-(b), 704(1) (1994). Causes of action that accrue prior to the filing of a petition for relief under the Bankruptcy Act are property of the estate. Bratton v. Mitchell, Williams, Selig, Jackson & Tucker, 302 Ark. 308, 788 S.W.2d 955 (1990). These claims include those that were filed by the debtor after discharge, as long as the cause of action had accrued prior to the filing of bankruptcy. U.S. ex rel. Gebert v. Transport Admin. Servs., 260 F.3d 909 (8th Cir. 2001). The cause of action must have been abandoned by the trustee in order for it to be pursued by the debtor. Bratton, supra.
Appellant argues that, like a wrongful-death action, bankruptcy law is statutory, and thereby strictly construed. Cockrum v. Fox, 359 Ark. 508, 199 S.W.3d 69 (2004). Failure to follow the proper procedures prevents the court from having jurisdiction over the claims. Ramirez, supra. Here, the claim could only have been brought by the trustee of the estate in bankruptcy. Appellee’s failure to follow federal law renders her initial complaint void ab initio. By substituting the trustee, she attempts to save her claim from being time barred. However, the Arkansas Supreme Court has held that a complaint filed by a party who did not have standing at the time the complaint was filed does not interrupt the statute of limitations, and motions to substitute the real party in interest are treated as the filing of a new suit. See St. Paul Mercury Ins. Co. v. Circuit Court of Craighead County, 348 Ark. 197, 73 S.W.3d 584 (2002); Ark-Homa Foods, Inc. v. Ward, 251 Ark. 662, 473 S.W.2d 910 (1971); Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S.W.2d 463 (1938).
The court in Floyd Plant Food Co., supra, held that because the corporation named as the plaintiff in the lawsuit had dissolved before the complaint was filed, and the Federal Chemical Company took over all its assets, including the notes that were the subject of the lawsuit, the statute of limitations was not tolled by the filing of the suit by a party with no interest. An actual party in interest cannot be substituted for one who has no cause of action at a time when the action would have been barred by limitations but for the previous institution of proceedings. Floyd Plant Food Co., supra. Further, the Eighth Circuit Court of Appeals held in U.S. ex rel. Gebert, supra, that a debtor is judicially estopped from pursuing pre-petition claims where the debtor failed to disclose the claim in the bankruptcy.
Here, the cause of action accrued on the date of the oral surgery, April 6, 1999. Appellee filed her bankruptcy petition on March 24, 2000, and obtained discharge on July 11, 2000. She did not list the alleged malpractice claim as an asset or contingent asset of the estate. Therefore, the alleged medical-malpractice claim accrued before appellee filed for bankruptcy relief and she was required to disclose the claim to the trustee. Appellee did not have standing to file the lawsuit against appellant, only the trustee did. Appellee did not petition the bankruptcy court to obtain an order abandoning the property under 11 U.S.C. § 554. When, after appellant’s objections to her standing, appellee filed a motion to substitute the bankruptcy trustee as the real party in interest, the statute of limitations for medical-malpractice claims had run. Therefore, appellee did not having standing to file the complaint, and the trial court erred in granting the motion to substitute the trustee as the real party in interest, as the statute of limitations prevents a medical-malpractice claim from being filed more than two years after the alleged wrongful act. Ark. Code Ann. § 16-114-203 (Supp. 2001). Further, the court erred in denying the appellant’s motion to set aside default judgment and dismiss based upon the appellee’s lack of standing.
Because the malpractice claim was void ab initio, this court does not address the remaining points on appeal.
We reverse and dismiss.
Pittman, C.J., and Glover, J., agree.
The trial court’s order reflects that the motion for a stay of further proceedings was granted to allow the appellant to file a petition for a writ of prohibition.
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Karen R. Baker, Judge.
This arises from the Pulaski County Circuit Court’s finding that it was without jurisdiction to review the pro se appellants Jim and Shirley Nettles’ appeal that challenged a decision by the City of Little Rock and the City of Little Rock Planning Commission, appellees. The primary issue on appeal to this court concerns the sufficiency of the Nettles’ affidavit to the trial court asserting their intent to appeal the appellees’ decision and the timeliness of the filing of the affidavit. We hold that the trial court did have jurisdiction, and we reverse and remand the matter to the trial court for proper consideration of the Nettles’ appeal.
The Nettles opposed the application by the Chenal Montessori School for a revised conditional- use permit to construct an adjacent building and enlarge its enrollment of students. This application for a revised-use permit was approved on March 17, 2005, by the Planning Commission. The Nettles then requested that the Little Rock Board of Directors rescind the Planning Commission’s decision; however, the Directors confirmed the decision, refusing to alter or rescind the issuance of the revised permit. The Nettles’ request for rescission was denied by the Directors on June 7, 2005, and on July 7, 2005, the Nettles filed an affidavit to appeal the denial. The Directors approved the minutes of the June 7, 2005 meeting on August 1, 2005. The Nettles filed an amended appeal to the circuit court attaching the approved minutes on August 15, 2005.
The affidavit stated: “Due to the time constraints wherein Pro Se Plaintiffs had but thirty (30) days to research, decide, and compose a timely filing, the City Clerk’s response to a time estimate cannot be included in this Affidavit.” The Clerk’s response on July 12, 2005 states that the clerk “will only be able to certify to the transcribed and approved minutes of the Little Rock Board of Directors Meeting,” and also states that she is in the process of transcribing those minutes. The response further states that “[o]nce they are approved by the Board of Directors, I will be able to copy and certify the transcribed minute record of that meeting.” The circuit judge dismissed the Nettles’ appeal finding that they had failed to comply with Ark. Code Ann. § 14-56-425 (Repl. 1998) which incorporates the appeal procedure found in District Court Rules 8 and 9, and that the circuit court was therefore without jurisdiction to hear the appeal. This appeal followed.
Appellants assert that we must determine whether the Directors’ decision was final at the June 7, 2005 meeting when the decision was made or was final in August when the Board approved the minutes of the meeting. Appellants argue that if the Directors decision was not final until August, their subsequent filing of the record with their amended appeal satisfied the statutory requirements for jurisdiction. In making that argument, they insist that this court must consider what actual harm occurs when an appellant properly requests the record but declines to swear that a city clerk has refused or neglected to produce that record. They argue that both the affiant and the State official would be subject “to the potential risk of unlawful activity” if the affiant submitted an affidavit swearing that an official of the State refused or neglected to perform an action they were required by law to do. They also expressed their concern regarding the proof necessary to substantiate their claim and questioned the weight of the evidence of telephone communication. It appears from their arguments that the Nettles were concerned that swearing that the clerk refused to produce the record was the same as accusing the clerk of committing an unlawful act which would subject both the Nettles and the clerk to retaliation. As the Nettles explained to the trial court: “For the City Clerk to simply notice a citizen that the record will not be available until a certain date is not in keeping with those two glaring words, neglected and refused. It is clear in the issue before this honorable Court that the City Clerk did not refuse to provide a record. She simply told Plaintiffs the truth, that she was prohibited from certifying the record until it became final.”
Appellees simply rely upon the affidavit filed on July 7, 2005, and its failure to include the recitation that the clerk refused or neglected to prepare and provide the record. They assert that without that language in the affidavit or the filing of the certified record of the proceedings before the Board, the appeal was untimely and the circuit court had no jurisdiction to hear the matter.
Because section 14-56-425 only permits appeals from final action, as a threshold matter it is necessary to determine if the June 7, 2005, decision by the Directors constituted a final action as the term is used in the statute. Our supreme court discussed the issue of finality of a decision by governing city bodies in Combs v. City of Springdale, 366 Ark. 31, 233 S.W.3d 130 (2006):
In Stromwall v. City of Springdale Planning Commission, 350 Ark. 281, 86 S.W.3d 844 (2002), this court interpreted the term “final action” found in section 14-56-425. There, we quoted with approval the United States Supreme Court’s statement in Williams County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), “[T]he finality requirement is concerned with whether the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury.” Stromwall, 350 Ark. at 846. We also said, “[F]or an order or action to be final it must terminate the action, end the litigation, and conclude the parties’ rights to the subject matter in controversy.” Id. And in the same vein, “Where further proceedings are contemplated, that do not involve merely collateral matters, the order or action is not final.” Id. In Stromwall, we held that a preliminary plat approval by the Springdale City Planning Commission was not a final action under section 14-56-425 because further actions in the matter were contemplated, and there were still outstanding issues to be determined before the plat was finally approved.
Here, no further action in the matter was contemplated, and no outstanding issues remained to be determined. The vote of the city council on April 26, which denied Combs’ request for a lot split, signified that it had arrived at a definitive position on the issue that inflicted an actual, concrete injury on Combs, and it concluded the parties’ rights to the subject matter in controversy. The April 26 vote meant that the city council had definitely determined that the appellant would not be permitted to split his lot, and the approval of the minutes on May 10 was merely a recordation of that determination. Accordingly, we hold that the vote taken on April 26, 2005, was a final action for the purposes of section 14-56-425.
As in Combs, the Directors’ approval of the minutes from the June 7, 2005 meeting were merely a recordation of the Directors’ determination with which the Nettles disagreed and challenged to the trial court. We hold that the decision was final on June 7, 2005, and the time for appeal began to run on that date. Therefore, we must decide if the affidavit filed on July 7, 2005, was sufficient to meet our statutory requirements. The appeal from the city council’s action was taken pursuant to Ark. Code Ann. § 14-56-425, which provides:
In addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.
Our supreme court has interpreted Ark. Code Ann. § 14-56-425 to incorporate the appeal procedure found in District Court Rules 8 and 9. Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003). In particular, Rule 9 provides in part:
(a) Time for Taking Appeal. All appeals in civil cases from district courts to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction of the appeal within 30 days from the date of the entry of judgment. . . .
(b) How Taken. An appeal from a district court to the circuit court shall be taken by filing a record of the proceedings had in the district court. Neither a notice of appeal nor an order granting an appeal shall be required. It shall be the duty of the clerk to prepare and certify such record when requested by the appellant and upon payment of any fees authorized by law therefor. The appellant shall have the responsibility of filing such record in the office of the circuit clerk.
(c) Unavailability of Record. When the clerk of the district court, or the court in the absence of a clerk, neglects or refuses to prepare and certify a record for filing in the circuit court, the person desiring an appeal may perfect his appeal on or before the 30th day from the date of the entry of the judgement in the district court by filing an affidavit in the office of the circuit court clerk showing that he has requested the clerk of the district court (or the district court) to prepare and certify the record thereof for purposes of appeal and that the clerk (or the court) has neglected to prepare and certify such record for purposes of appeal. A copy of such affidavit shall be promptly served upon the clerk of the district court (or the court) and the adverse party.
The filing requirements of Rule 9 are mandatory and jurisdictional, and failure to comply prevents the circuit court from acquiring subject-matter jurisdiction. Douglas v. City of Cabot, 347 Ark. 1, 59 S.W.3d 641 (2001). Any interpretation of a statute by our supreme court becomes a part of the statute itself. Night Clubs, Inc. v. Fort Smith Planning Comm’n, 336 Ark. 130, 984 S.W.2d 418 (1999).
The question presented is whether the affidavit filed by the Nettles is sufficient to comply with District Court Rule 9(c). Critical to the analysis of this question is the supreme court’s reasoning in Velek v. City of Little Rock, 364 Ark. 531, 222 S.W.3d 182 (2006). Our supreme court reasoned that:
Although the Veleks did not use the exact words, “the clerk refused to prepare and certify the record,” to require a defendant’s affidavit to quote the Rule’s language exactly in this instance would be to exalt form over substance. See Romes v. State, 356 Ark. 26,144 S.W.3d 750 (2004) (rejecting argument that, simply because the word “continuance” was not used by counsel, the court should not consider this period as a delay requested by the defendant for purposes of speedy trial; clearly, a comment that counsel would “probably ... need more time to prepare” was a request to continue the trial date, and to hold otherwise would be placing form over substance).
In sum, the Veleks complied with Rule 9(c) by filing an affidavit before the thirtieth day after the date of the district court’s judgment; the trial court erred in dismissing the Veleks’ appeal.
Id.
Our supreme court’s decision in Velek relied upon the affiant’s statement that the clerk had specifically informed the affiant that the clerk would not provide the necessary transcript. Therefore, the substance of the affidavit established that the record was unavailable to the affiant because of an action or non-action by the clerk. In reaching its decision, the supreme court admonished that we must not exalt form over substance.
To ensure that we do not exalt form over substance, we must examine the substance of the Nettles’ affidavit. The affidavit states that due to the time constraints, the affiant is unable to provide an estimate of the date when the record of the meeting would be available. The substance of the affidavit is that the Nettles would provide the record when it was made available to them, but they did not know when the record would be available. The letter from the clerk to the Nettles confirms that the person responsible for preparing the required record was in the process of transcribing the record and would not release the record to the Nettles until after the Board’s approval of the minutes of the meeting. Given these facts, we would be applying form over substance to say that the affidavit was insufficient because, like the appellant in Velek, the Nettles did not specify that the “clerk refused to prepare and certify the record.” The substance of the affidavit and the clerk’s response make clear that the record was not available to the Nettles on July 7 and would not be available until after it was transcribed and approved by the Board of Directors.
Accordingly, we hold that the trial court did have jurisdiction, and we reverse and remand the matter to the trial court for proper consideration of the Nettles’ appeal.
Bird and Roaf, JJ., agree.
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Sam Bird, Judge.
Appellant Mark Simmons appeals the trial court’s entry of a protective order against him after his ex-girlfriend, appellee Angie Dixon, filed a petition for the order based on allegations that Simmons had threatened her and her dog. On appeal, Simmons contends that the trial court’s decision was both an error of law and was unsupported by the evidence. We affirm.
On September 20, 2005, Dixon filed a “Petition for Order of Protection” on behalf of herself and “an adjudicated incompetent person whose name is Dog Mojo,” alleging that Simmons had committed domestic abuse by sending text messages in which he threatened to harm her and to kill her dog. The petition also alleged that Simmons had been “cussing” Dixon and “beating on [her] car” during an incident at Sonic. Furthermore, the petition alleged that Simmons called Dixon’s place of employment and made derogatory comments about Dixon.
At a hearing held on September 30, 2005, Dixon testified that she was Simmons’s girlfriend for eighteen months and that she lived with him for fifteen of those months. She claimed that, during this time, Simmons became physically abusive when he drank. She said that “when he got drunk a jealousy streak would come out” and that he would “push [her] or pull [her] out of places.”
Dixon further testified that she filed for the order of protection after an incident at Big Daddy’s nightclub in June 2005, claiming that Simmons walked in while she was dancing and called her a “whore.” She said that he pushed her while she was on the dance floor.
Dixon also described a series of text messages that she received from Simmons. She claimed that she received the messages during the period from April 22, 2005, to May 22, 2005. According to Dixon, in these messages, Simmons called her a “lying whore” and threatened to kill her dog.
Dixon explained that the reason she waited until September 2005 to file the petition for a protective order was because she was waiting for a court date, and the Mississippi County Sheriffs Department had never received a faxed copy of the police report that she made “in April and in May.” She claimed that, since the “incidents back in May,” the only other incidents with Simmons were “catty remarks” and “the flipping of the finger.” She said that if she was walking to someone’s house, he would scream out obscenities and “flip [her] off.” She agreed that this was “not really a clear and present danger of bodily harm” and said that she “just want[ed] him to leave [her] alone, keep his comments to [himself,] and keep his finger to [himself].” She said that the last time the two went out together on a date was March 18, 2005.
Dixon denied stating that Simmons “beat on her car.” She claimed that officers asked her if he touched her car, and she said that he “shook it.” She said that she was “confused.” She said that she went to the police after the incident at Big Daddy’s and was “afraid” because Simmons said in his text messages that “if he caught me out ... he [would] whip me and ... I would find my dog dead in my backyard.”
Simmons also testified at the hearing. He claimed that he had a relationship with Dixon from October 2003 to March 2005 and that they lived together for “roughly five to six months” during the time that they were dating. He said that the last time he spoke to Dixon was in June 2005 when she walked up to him at the Holiday Inn (where Big Daddy’s nightclub was located) and “started cussing [him].” He said that she then went to the dance floor and told some friends “some stuff that wasn’t true.” He said that he went to “confront” her on the dance floor and that she pushed him. When she did, he “went to slap her hands down” and her current boyfriend “jumped in the middle of it.” Simmons stated that the bouncers at the club asked Dixon and her boyfriend to leave, and that he had not had any contact with Dixon since. He denied any physical abuse during his relationship with Dixon and specifically said that he “never touched her.” He claimed that he had never hit a woman. He explained that he slapped Dixon’s hands down at Big Daddy’s to keep her from hitting him. He said that he contacted her place of employment in September 2005 to inquire about whether she had a restraining order against him.
Simmons admitted to sending text messages when he and Dixon first broke up because “she was telling people that she was going to make [him] lose [his] job and that [he] beat her and everything.” Simmons also admitted that he threatened to kill Dixon’s dog, but never did so. He explained that he bought the dog for her and would never hurt the dog. He said he told Dixon that if she kept telling people that he beat her, he would. He opined that she knew that he did not mean what he was saying in the text messages because he “never followed through with it” and it was “four or five months later before she worried about it.”
Following the hearing, the court stated as follows:
All right. Thank you. I have a sheet that I follow, and it’s taken direcdy from the Arkansas code as to the requirements for the issuance of an Order of Protection. And basically everything has been met except the one point of contention as to whether or not there has either been physical harm, bodily injury, assault, so forth. And one of those requirements is the infliction of fear of imminent physical bodily harm or assault.
The Defendant admitted that he made a text message to her saying, if you don’t quit telling people this, I am going to beat your — da da da. And that was clearly intended to scare her into quit [sic] bad-mouthing him. And that is the element that’s required for the issuance of an Order of Protection. It’s the infliction of fear of physical assault.
So the Order of Protection is issued. It will expire December the 31st of 2006. The request for payment of attorney fees is denied.
Simmons presents two arguments on appeal. First he claims that “under any reasonable interpretation of the legislative enactments relating to protective orders the allegations made by Ms. Dixon do not give rise to a valid cause of action against Mr. Simmons.” Second, he asserts that “even ifMs. Dixon’s allegations set forth in her petition could be remotely considered sufficient to come within the applicable statutes the evidence that was presented was simply not sufficient to meet her burden of proof.”
Whether Simmons’s Actions Fell Within Statutory Parameters
Simmons first argues that we should reverse the trial court’s decision because his actions did not fall “completely within the words” of the statutes relating to protective orders. Orders of protection are governed by The Domestic Abuse Act of 1991, codified as Ark. Code Ann. § 9-15-101 — 9-15-303 (Repl. 2002 and Supp. 2005) (collectively, the Act). The purpose of the Act is “to provide an adequate mechanism whereby the State of Arkansas can protect the general health, welfare, and safety of its citizens by intervening when abuse of a member of a household by another member of a household occurs or is threatened to occur, thus preventing further violence.” Ark. Code Ann. § 9-15-101 (Repl. 2002). The Act defines domestic abuse as “[p]hysical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members[.]” Ark. Code Ann. § 9-15-103(a)(l) (Repl. 2002). Under the Act, a petition for relief “shall allege the existence of domestic abuse and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances of the domestic abuse and the specific relief sought.” Ark. Code Ann. § 9-15-201(e) (Repl. 2002). A circuit court may provide the following types of relief in response to such a petition:
(1) Exclude the abusing party from the dwelling which the parties share or from the residence of the petitioner or victim;
(2) Exclude the abusing party from the place of business or employment, school, or other location of the petitioner or victim;
(6) Prohibit the abusing party directly or through an agent from contacting the petitioner or victim except under specific conditions named in the order; and
(7) (A) Order such other relief as the court deems necessary or appropriate for the protection of a family or household member.
(B) The relief may include,but not be limited to, enjoining and restraining the abusing party from doing, attempting to do, or threatening to do any act injuring, mistreating, molesting, or harassing the petitioner....
Ark. Code Ann. § 9-15-205(a) (Repl. 2002).
Simmons points out that, in the petition for the order of protection, Dixon requested that Simmons be excluded from an apartment that neither of them occupied and that Simmons be excluded from a bar in Blytheville, and Dixon also asked the court to protect her dog Mojo. Simmons claims that “none of those requests fit within any of the types of relief authorized by A.C.A. 9-15-205.” We note that this argument was not raised below and that Simmons is therefore precluded from raising it on appeal. See Jordan v. Diamond Equip. & Supply Co., 362 Ark. 142, 207 S.W.3d 525 (2005). Even were we to address this argument, we would also note that the trial court did not grant the requested relief except to the extent that Simmons was “excluded from the residence occupied by Petitioner [Dixon] either at the address shown in the petition ... or at any other residence in which the petitioner children [sic] may be present.” This relief was clearly permitted under the statute, regardless of whether Dixon’s petition indicated an incorrect address. We therefore fail to see how Simmons was prejudiced by Dixon’s requests for relief; as a result, we could not reverse on this point. See Pablo v. Crowder, 95 Ark. App. 268, 236 S.W.3d 559 (2006) (recognizing that this court will not reverse in the absence of a demonstration of prejudice).
Simmons further asserts that there was no evidence that Dixon suffered bodily injury at the hands of Simmons and that Dixon’s “only fear of ‘imminent’ harm related to [Simmons’s] name-calling and [Simmons’s] alleged threats to the dog he bought her while they were intimately involved.” Simmons claims that the legislature did not intend the protective order scheme to apply to family pets, and that, based on her own testimony, Dixon was never afraid for her personal safety; rather, she only wanted Simmons to quit calling her names. Furthermore, Simmons claims that, because Dixon waited four months to file the petition, she was not in fear of “imminent” harm. For these reasons, he argues that Dixon’s allegations “do not come squarely within what the statute prohibits or purports to guard against.” We disagree.
FI ere, it is clear that the trial court did not grant relief based on Simmons’s threats to the dog, but rather his threats to “beat” Dixon herself. Moreover, Dixon’s allegations came within the broad parameters of the Act because, although she waited four months to file the petition in this case, she was clearly in fear of “imminent” harm at the time that Simmons threatened her.
In Mississippi River Transmission Corp. v. Weiss, 347 Ark. 543, 550, 65 S.W.3d 867, 872-73 (2002), our supreme court stated as follows:
We review issues of statutory interpretation de novo, as it is for this court to decide what a statute means. 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. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language.
When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. When the meaning is not clear, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the legislative history, and other appropriate means that shed light on the subject. The basic rule of statutory construction is to give effect to the intent of the General Assembly.
(Citations omitted.)
Arkansas Code Annotated section 9-15-103 includes “the infliction of fear of imminent physical harm” as a form of domestic abuse. In this case, the evidence shows that Dixon was in fear of “imminent” harm as contemplated by the broad purpose of the Act — to prevent domestic violence. According to Webster’s Dictionary, “imminent” means “likely to occur at any moment” or “impending.” See Random House Webster’s College Dictionary CTb (1996). Here, Dixon claimed that she was “afraid” when Simmons sent the threatening text messages. This clearly fell within the broad parameters of the statute — “imminent” meaning “likely to occur at any moment” or “impending” at the time of the alleged abuse, not at the time of filing the petition for a protective order. Given the purpose of the statute, to prevent domestic abuse, we cannot see how the statute could be interpreted any other way. In addition, as Dixon points out, the Act itself prohibits the denial of an order of protection based solely on the amount of time between the alleged abuse and the filing of the petition. See Ark. Code Ann. § 9-15-214 (Repl. 2002) (stating that a circuit court shall not deny a petitioner relief “solely because the act of domestic or family violence and the filing of the petition did not occur within one hundred twenty (120) days”). The fact that Dixon waited four months to file the order is not a basis for reversal. Thus, the trial court did not err in its interpretation of the statute.
Sufficiency of the Evidence to Support the Trial Court’s Decision to Issue the Order of Protection
Regarding Simmons’s claim that the evidence is insufficient to support the trial court’s decision in this case, his arguments are apparently the same as for the first point addressed above. Essentially, Simmons is arguing that his actions did not meet the statutory requirements for the issuance of a protective order and, thus, that there was insufficient evidence for the court to issue such an order. In bench trials, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous or clearly against the preponderance of the evidence; 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. Chavers v. Epsco, 352 Ark. 65, 98 S.W.3d 421 (2003). Disputed facts and determinations of credibility are within the province of the fact-finder. Id.
Here, we are not left with a firm conviction that a mistake was made. Simmons admitted to sending threatening text messages to Dixon, and Dixon claimed she was “afraid” after receiving the messages. As discussed herein, this was clearly sufficient to show the infliction of fear of “imminent” physical harm under the domestic abuse statutes. We therefore affirm.
Affirmed.
Pittman, C.J., and Gladwin, Glover, and Baker, JJ., agree.
Roaf, J., dissents.
We are uncertain as to which incidents Dixon is describing here. In any event, Dixon’s testimony was that she received text messages from Simmons during the period from April 22, 2005, to May 22, 2005, and that an incident at Big Daddy’s nightclub occurred in June 2005.
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John B. Robbins, Judge.
Appellant City of Huntington (“the city”) appeals a jury verdict entered against it and in favor of appellee Robert Mikles. Mikles was formerly the chief of police for the city from late August 2003 to November 2004 when he was terminated. Mikles sued the city in April 2004, first alleging breach of contract regarding his employment agreement with the city, and later amending the complaint to add an allegation of wrongful termination after he was fired. The city moved for directed verdict at the appropriate times, which motions were denied. The jury found in his favor on both counts, awarding $5832 in damages for breach of contract and awarding $14,057.69 for wrongful termination, plus costs and attorney fees. The city moved for judgment notwithstanding the verdict, which was denied, and this appeal followed. Appellant contends on appeal that the jury’s verdicts on breach of contract and on wrongful termination are not supported by substantial evidence. We reverse the verdict on breach of contract, and we affirm the verdict on wrongful termination.
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence. Stewart Title Guar. Co. v. Am. Abstract & Title Co., 363 Ark. 530, 215 S.W.3d 596 (2005); Ethyl Corp. v. Johnson, 345 Ark. 476, 49 S.W.3d 644 (2001). Similarly, in reviewing the denial of a motion for judgment notwithstanding the verdict, we will reverse only if there is no substantial evidence to support the jury’s verdict, and the moving party is entitled to judgment as a matter of law. Id. Substantial evidence is that which goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Id. It is not this court’s place to try issues of fact; rather, this court simply reviews the record for substantial evidence to support the jury’s verdict. Id. In determining whether there is substantial evidence, we view the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id.
Appellant argues that (1) there is no substantial evidence to support the jury’s finding that the city breached an employment contract with Mikles by ceasing to allow him permission to drive a city vehicle using the city’s fuel and insurance, and (2) there is no substantial evidence to support the jury’s finding that the city wrongfully discharged Mikles for filing suit against the city. To determine whether appellant’s arguments hold any merit, we review the relevant testimony in the light most favorable to Mikles as the prevailing party.
Mikles, a man in his late fifties, testified that he was looking for a job when his wife found an advertisement seeking a chief of police in Huntington, a town about forty miles away from his residence in Magazine. Mikles contacted the mayor, Craig Cotner, and they met for an interview.
When they agreed that Mikles was suited for the job, they negotiated compensation. Mayor Cotner could not offer the per-hour pay rate that Mikles requested. Mikles asked if there was another means to add to the per-hour pay rate to compensate him, such as the use of a city vehicle to drive to and from home, with the attendant gasoline and insurance coverage provided by the city. This was important to Mikles, given the eighty-mile round-trip commute. The mayor agreed with the base hourly rate plus use of the city vehicle, subject to the city council’s approval at the next meeting. Mikles’s official hiring date was in late August 2003. Mikles drove his own vehicle to work for a couple of days, but shortly thereafter, he was given a city vehicle.
Mikles said he began work right away to slow down speeders driving through the middle of town on Highway 71 by writing warnings and citations; he arrested several drug manufacturers in the area; he started a youth program; he had offenders provide improvements to the jail facility; and he wrote two successful grant applications to acquire more equipment for police officers. The reviews of Mikles’s performance were mixed: the mayor was pleased with the job being done, but a few city council members were not. Mikles said that the mayor “always backed me.”
In March 2004, a city council meeting was convened, and councilman Parish moved to take the city car privilege from Mikles. The motion was seconded and approved in that meeting. Mikles was present, shocked, and had to get a ride home because the council’s action took effect immediately. Councilman Ram-mings drove Mikles home that night. Mikles filed a breach of contract action in April 2004. Mikles said that relations with four of the six council members “really started to get bad” after he filed suit. Mikles said that the mayor was being pressured to fire him. Mikles did not want to quit, given that he enjoyed his job and was in his late fifties at the time.
On May 15, 2004, a city council meeting was conducted during which the sole issue was Mikles’s lawsuit for breach of contract. Councilman Bates moved that Mikles be suspended without pay until his lawsuit was resolved. The city attorney urged the council not to support that motion, and it was not seconded, such that the motion died. Mikles noted that during his tenure, the council overrode his decision regarding work schedules for himself and other officers. Mikles abided by the new schedule, despite it being “all these wild hours.”
During the summer of 2004, Mikles terminated policeman Ryan Stephens from the force because the background check on Stephens indicated that he had a mental disorder. Mikles believed that Arkansas State Police protocol required termination for this reason. However, Mikles’s decision to fire Stephens was not well received, especially by Stephens’s wife, who was a councilwoman and one of the four councilpersons who were opposed to Mikles. Stephens appealed that decision and was ultimately returned to the force with back pay.
By October 2004, Mikles was of the impression that the mayor was “constantly upset . . . getting phone calls constantly from the city council, the same four, that he needed to get rid of me.” At a meeting conducted on October 14, 2004, the council voted four-to-two to terminate Mikles. This had no effect because the council did not have the authority to hire and fire department heads; that authority rested with the mayor. After that meeting, the mayor told Mikles to take three weeks of accrued vacation and not come to town, during which the mayor urged Mikles to find another job. Mikles said he would look for another law-enforcement job, but if no job was available, he would not resign and would have to be fired to leave. When Mikles returned from vacation, the mayor told him he was fired. After that, Mikles added the allegation of wrongful discharge to his complaint. Mikles applied for and received unemployment benefits after his termination.
The mayor testified at trial on Mikles’s behalf. He stated that he was the one who interviewed Mikles and negotiated the salary with the car allowance, agreeing that “that’s what I offered him. He accepted it.” The mayor remembered that it was several months later that the council voted to take the city vehicle away from Mikles. The mayor commented that the council had authority over the city’s finances.
The mayor said that he was satisfied with Mikles’s work and, if it were up to him, Mikles would probably still be the chief of police, though he agreed that Mikles was “hard-headed.” The mayor thought that the council members had personal vendettas against Mikles, in part because Mikles was a very assertive person. The mayor agreed that the council passed a motion to terminate Mikles’s employment, but the motion was ineffective. This was in October 2004, after Mikles filed his lawsuit in April 2004. The mayor was very upset by the friction between Mikles and the council. The mayor acknowledged that the friction existed from the very beginning.
Steve Rammings, a councilman for six years, testified that he understood that the pay package for the chief of police was a salary and the city furnishing a car. Rammings was present for a city council meeting convened shortly after the mayor hired him where this was discussed, and Rammings believed that the city had an agreement with Mikles on those terms. Rammings said that in March 2004 when the car was taken away, the council acted in the absence of the city attorney, and it was a typical four-to-two vote. Rammings said that after the majority took the car away, he presented a motion to allow Mikles mileage, which was rejected. Rammings took Mikles home that night. Rammings believed that a month or two later, Mikles filed suit against the city. Rammings remembered that Melissa Stephens was on the council and that her husband was terminated by Chief Mikles. He believed that this was part of the animosity between her and Mikles. Rammings thought that Mikles did an excellent job as chief of police. Rammings knew that the city council was pressuring the mayor to fire Mikles, and he said that the four council members filed a frivolous lawsuit against the mayor, which was dropped after the mayor fired Mikles.
Motions for directed verdict regarding breach of contract and wrongful termination were denied. Councilman Parish testified that he did not understand that the council was agreeing to the full compensation package, but Parish conceded that no one objected to the terms at the next regular meeting after Mikles was hired. Parish thought that Mikles fired Officer Stephens shortly after Mikles came on the job and that he did not agree that Stephens should be fired for lack of information in his personnel file. Parish said that the council members received citizen complaints about Mikles, in part regarding the use of a city vehicle that was costing the townspeople. Parish said he was the one who made the motion to disallow Mikles the use of the vehicle because it was more expensive than he had originally thought when Mikles was hired. Parish believed that they made an alteration to his employ ment, which Mikles accepted by staying on the job. Parish was the one who made the motion to fire Mikles, which was passed by a majority vote, to show those council members’ feelings about Mikles. Parish said the vote was a reaction to Mikles continuing to use the city vehicle on occasions when he had been disallowed that privilege.
Parish testified that he had crafted the city’s employee handbook, and it specifically referred to at-will employment status. Parish believed that the car allowance had nothing to do with his employment status. However, Parish agreed that he had thought Mikles and the mayor had an agreement regarding the car, which the council ratified by not acting on that provision at the next council meeting after his being hired.
After renewed motions for directed verdict were denied, the trial judge instructed the jury. The jury was to determine whether a contract existed between the city and Mikles and whether it was breached. The jury was given definitions of contract, offer, acceptance, consideration, and modification. The judge told the jury that Mikles was an at-will employee, terminable at will by either party, except that if the discharge was based solely on filing a lawsuit, then that would be a violation of public policy. The jury found in favor of Mikles on both counts and awarded damages. The present appeal is before us for consideration.
Appellant first contends that there is no substantial evidence to support the jury’s finding that the city breached a contract of employment by taking away privileges to use a city vehicle. Appellant acknowledges that there was an initial agreement to allow use of the city vehicle and that the city modified the terms of the agreement when it halted permission to use the vehicle in March 2004. Appellant contends that it unilaterally changed the terms of appellee’s employment, which appellee accepted by staying on the job after the change was instituted. We are persuaded by this argument.
Appellant cites to Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991). Our supreme court held in Crain that accepting changes in an employment agreement may constitute part of an altered agreement. The Crain opinion went on to state that an employee’s retention of employment constitutes acceptance of the offer of a unilateral contract; the retention of employment being the necessary consideration to support the “new deal.” See id. at 573. The problem with Mikles’s proof was that even though the compensation was agreed upon, it was not for a time certain. No doubt that an employee at will has a right to compensation upon the performance of services. See Boatmen’s Ark., Inc. v. Farmer, 66 Ark. App. 240, 989 S.W.2d 557 (1999). The term or duration of the agreed-upon compensation was not part of the contract, and it was therefore subject to prospective alteration at any time. There is no substantial evidence to support the jury’s verdict on the breach-of-contract claim. We reverse and dismiss the breach-of-contract verdict.
We next consider whether there was substantial evidence to support the jury’s verdict that appellee Mikles was wrongfully discharged. The general rule is that “when the term of employment in a contract is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause.” Marine Servs. Unlimited, Inc. v. Rakes, 323 Ark. 757, 763, 918 S.W.2d 132, 134-35 (1996) (quoting City of Green Forest v. Morse, 316 Ark. 540, 546, 873 S.W.2d 155, 158 (1994)). Stated another way, an employer may terminate the employment of an at-will employee without cause. See Faulkner v. Ark. Children’s Hosp., 347 Ark. 941, 69 S.W.3d 393 (2002); Crain Indus., Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991); Gladden v. Ark. Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987). However, an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. Northport Health Svcs. v. Owen, 356 Ark. 630, 158 S.W.3d 164 (2004). The public policy exception presents an exclusive contract cause of action. See Howard Brill, Arkansas Law of Damages (3d ed.) § 19-2; Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). The exception is limited and not meant to protect merely private or proprietary interests. Sterling Drug, Inc. v. Oxford, supra. The burden of establishing a prima facie case of wrongful discharge is upon the employee, but once the employee has met his burden, the burden shifts to the employer to prove that there was a legitimate, nonretaliatory reason for the discharge. Gen. Elec. Co. v. Gilbert, 76 Ark. App. 375, 65 S.W.3d 892 (2002).
Mikles alleged that he was fired because he had filed suit for breach of contract, and therefore, his termination was solely in retaliation. The city responded that Mikles was an at-will employee subject to dismissal at any time for any reason, and further that there was no retaliatory reason for discharge. The jury was instructed that if the discharge was based solely on filing a lawsuit, then that would be a violation of public policy. There was no objection to this jury instruction. The jury found that Mikles had proven that he was fired in retaliation for his lawsuit.
The city argues that there is ample evidence of other reasons for Mikles’s being terminated, unrelated to his filing a lawsuit. However, this is not the focus of appellate inquiry. We determine whether there was substantial evidence upon which the jury could base a decision that the reason for Mikles’s termination was because he filed a lawsuit against the city. There was such substantial evidence, and therefore we affirm this point.
The jury verdict for breach of contract is reversed. The jury verdict for wrongful discharge is affirmed.
Gladwin and Baker, JJ., agree.
The mayor was also a named party because he was sued in his official capacity. However, for ease of reading, we refer only to the city as a named party and the primary appellant.
The supreme court in Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), held that an employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. No party challenged the trial court’s rendering of a jury instruction that if Mikles was fired solely in retaliation for fifing his lawsuit, this constituted a violation of public policy. While it would be for a jury to determine the reason for the plaintiffs termination, the question of whether the reason asserted by the plaintiff was in violation of a well-established public policy of the state is ordinarily a question of law for the court. Koenighan v. Schilling Motors, Inc., 35 Ark. App. 94, 811 S.W.2d 342 (1991). We render no opinion on the legal soundness of this jury instruction regarding whether a violation of public policy occurred.
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John Mauzy Pittman, Chief Judge.
Appellant Pro Transportation, Inc. (Pro), brings this appeal from a judgment entered on a jury verdict in favor of appellees Volvo Tracks North America, Inc., and Volvo Trucks Corporation (collectively, Volvo) and the denial of its motion for a new trial. We cannot reach the merits of this case because the appeal is not from a final, appealable order as required by Ark. R. App. P.-Civ. 2(a) and Ark. R. Civ. P. 54(b). We therefore dismiss the appeal for lack of finality.
Pro is a long-haul trucking company based in Arkansas. Volvo designs and manufactures trucks and engines. Between 1999 and 2001, Volvo supplied Pro with a number of trucks with model VED-12 C engines. Pro alleged that it had some issues with non-piston/liner components, e.g., fuel-injector cups, valves, turbo-chargers, and other components. After a period of negotiations, Pro and Volvo executed a confidential settlement and release (the “settlement/release”) on June 12, 2002. The settlement/release called for the payment of a certain sum of money by Volvo and an extended service program on those components in exchange for Pro’s release of all claims, present and future.
On May 13, 2003, Pro filed suit against Volvo and the dealer, University Truck Center, Inc., alleging causes of action based on fraud, misrepresentation, negligence, breach of express warranty, breach of warranty of fitness for a particular purpose, and breach of warranty of merchantability. The complaint alleged that, after execution of the settlement/release, Pro began experiencing problems caused by the piston/liner components, something not covered by the settlement/release, and that Volvo knew of these problems and concealed them from their customers such as Pro. The complaint alleged that these problems with the piston/liner components caused Pro to suffer lost profits due to increased repair time and costs, loss of value of the trucks, and increased driver costs. The complaint also sought a declaratory judgment that, based on Volvo’s concealment of the problems with the piston/liner components, the settlement/release was null and void. Volvo answered, denying the material allegations of the complaint.
By order entered on November 1, 2004, the trial court bifurcated the trial into two stages: first, whether Volvo procured the settlement/release by fraud and, second, the issue of liability and damages caused by the piston/liner failures. The ruling was based on our supreme court’s decision in Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992), holding that it was an abuse of discretion to try products-liability claims with a claim for breach of a settlement contract involving settlement of the same products claims.
The piston/liner case on liability and damages was tried to a jury January 10-21, 2005. Prior to the case being submitted to the jury, Pro dismissed via voluntary nonsuit all claims against University Truck Center. It also nonsuited its breach-of-warranty and negligence claims against Volvo. The jury returned a verdict in favor of Volvo and judgment was entered on the jury verdict. Pro filed a timely motion for new trial that the trial court denied. This appeal followed.
The question of whether an order is final and subject to appeal is a jurisdictional question, which we will raise on our own even if the parties do not. Epting v. Precision Paint & Glass, Inc., 353 Ark. 84, 110 S.W.3d 747 (2003). When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the trial court may direct entry of a final judgment as to one or more but fewer than all of the claims only upon an express determination, supported by specific factual findings, that there is no just reason for delay, and upon an express direction for the entry of judgment. Ark. R. Civ. P. 54(b)(1). In the event the court so finds, it shall execute a Rule 54(b) certificate and set forth the factual findings upon which the determination to enter judgment as final is based. See id.
The supreme court has held that a party that has several claims against another party may not take a voluntary nonsuit of one claim and appeal an adverse judgment as to the other claims when it is clear that the intent is to refile the nonsuited claim and thus give rise to the possibility of piecemeal appeals. See Haile v. Arkansas Power & Light Co., 322 Ark. 29, 907 S.W.2d 122 (1995); Ratzlaff v. Franz Foods of Ark., 255 Ark. 373, 500 S.W.2d 379 (1973). See also Driggers v. Locke, 323 Ark. 63, 913 S.W.2d 269 (1996). This is so because a voluntary nonsuit or dismissal leaves the plaintiff free to refile the claim, assuming there has been no previous dismissal. Haile, supra; Ark. R. Civ. P. 41(a). The above cases were ones where partial summary judgment was granted and the plaintiff attempted to take nonsuits as to the remaining claims in order to appeal. However, there is no logical reason why the same reasoning should not apply in this situation where the case has been tried and certain claims nonsuited prior to submission to the jury. See John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991) (holding that appeal from jury verdict on liability was not final where issue of damages and other claims remained to be tried).
Here, Pro has taken a nonsuit on its breach of warranty and negligence claims. Because the nonsuited claims may be refiled, this is an interlocutory appeal that we have no authority to entertain under Rule 2(a). Accordingly, we have no choice but to dismiss this appeal.
Dismissed.
Glover, J., agrees.
Gladwin, J., concurs.
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David M. Glover, Judge.
The issue in this case is whether the Office of Child Support Enforcement (OCSE) can enforce a spousal support order contained in a foreign divorce decree from Germany. We hold that OCSE can enforce the spousal order in question, and we reverse and remand this case.
Anita and Robert Gauvey were married on December 22, 1988, in Cleburne County, Arkansas, and were divorced on March 28, 1995, in Starnberg, Germany. Two children were born of the marriage — Elizabeth, on November 8, 1989, and Sean, on March 31,1992. The German divorce decree provided that Anita Gauvey was the proper person to have custody of the children. Appellee, Robert Gauvey, was given no visitation rights in the divorce decree because there was an outstanding warrant for his arrest concerning, among other things, false certification, loan fraud, bodily injury, and narcotic drug offenses; because Anita Gauvey testified that he had been violent toward her and the children; and because he had had no contact with the children for almost two years, having fled Germany. The pertinent support order from Germany provided that appellee was to pay monthly child support of $212.25 per child and monthly spousal support of $915.35. The total arrearage as of March 24, 2005, was calculated to be $164,801.55.
Anita Gauvey, through OCSE, filed a petition to register the German order for child support and spousal support in the Faulkner County Circuit Court pursuant to the provisions of the Uniform Interstate Family Support Act (UIFSA), found at Arkansas Code Annotated section 9-17-101 et seq., and the Act for the Recovery of Maintenance in Relations with Foreign States German Foreign Maintenance Act of December 19, 1986. OCSE also filed a motion for citation, asking the Faulkner County Circuit Court to find Robert Gauvey in contempt for failure to pay child and spousal support and to order him to obtain health insurance for the children. Robert Gauvey responded to the registration of the foreign judgment, arguing, in pertinent part, that OCSE was without authority to enforce and collect an award of spousal support. He also responded to the motion for citation, contending that he should not be held in contempt because he was never served with a summons and complaint; that the order was entered in violation of his due-process rights; that he had been denied contact with his children; that his attempts to send money to his ex-wife were rejected; and that because he was never served with the order, he did not know what obligations, if any, he owed pursuant to the order.
In an order filed of record on October 27, 2005, the trial court found that it could not register the judgment for spousal support because OCSE was not authorized to enforce the payment of spousal support, but it did register and confirm the order for child support. The trial court granted judgment to Anita Gauvey and OCSE for past due child support as of October 5, 2005, in the amount of $54,336 and ordered Robert Gauvey to pay $84.90 monthly on the judgment in addition to his monthly support of $424.50. The trial court did not find Robert Gauvey in contempt of court.
OCSE filed a motion and brief to reconsider on November 9, 2005, arguing that 45 C.F.R. § 301.1 gave it authority to collect overdue spousal support as well as overdue child support. The trial judge denied this motion.
On appeal, OCSE argues that it does have the authority to collect spousal support in conjunction with child support and that the trial court in effect modified the divorce decree when it refused to register the portion of the decree ordering spousal support. OCSE cities 45 C.F.R. § 301.1, which provides that “overdue support” is
a delinquency pursuant to an obligation determined under a court order, or an order of an administrative process established under State law, for support and maintenance of a minor child, which is owed to or on behalf of the child, or for the noncustodial parent’s spouse (or former spouse) with whom the child is living, but only if a support obligation has been established with respect to the spouse and the support obligation established with respect to the child is being enforced under State’s IV-D plan. . . . Past-due support means the amount of support determined under a court order or an order of an administrative process established under State law for support and maintenance of a child or of a child and the parent with whom the child is living, which had not been paid. . . . Spousal support means a legally enforceable obligation assessed against an individualfor the support of a spouse or former spouse who is living with a child or children for whom the individual also owes support.
(Emphasis added.)
Arkansas Code Provisions
Arkansas Code Annotated section 9-17-101 (19) (ii) (Repl. 2002) defines “State” to include “a foreign jurisdiction that has enacted a law or established procedures for issuance and enforce ment of support orders which are substantially similar to the procedures under this chapter, the Uniform Reciprocal Enforcement of Support Act, or the Revised Uniform Enforcement of Support Act.” Under the Uniform Interstate Family Support Act (UIFSA), “child support order” or “support order” is defined as “a judgment, decree, or order, . . . issued by a court or an administrative agency of competent jurisdiction for the support and maintenance of a child ... or of the parent with whom the child is living, which provides for monetary support, health care, arrearages, or reimbursement. . . Ark. Code Ann. § 9-14-201(2) (Repl. 2002). (Emphasis added.) “Past due support” is defined as “the total amount of support determined under a court order established under state law, which remains unpaid.” Ark. Code Ann. § 9-14-201(8). Arkansas Code Annotated section 9-14-210(b) provides in pertinent part that “an attorney employed by . . . the Office of Child Support Enforcement, . . . shall undertake representation of the action ... in actions brought pursuant to Title IV-D of the Social Security Act, § 42 U.S.C. § 651 et seq., under the Uniform Interstate Family Support Act, § 9-17-101 et seq.”
Arkansas Code Annotated sections 9-17-301 (b)(2) & (3) state that this chapter provides for the “enforcement of a support order and income-withholding order of another state without registration pursuant to article 5 of this chapter” and “registration of an order for spousal support or child support of another state for enforcement pursuant to article 6 of this chapter.” (Emphasis added.) Subsection (c) of this statute provides that “an individual petitioner or a support enforcement agency may commence a proceeding authorized under this chapter by filing a petition in an initiating tribunal for forwarding to a responding tribunal or by filing a petition or a comparable pleading directly in a tribunal of another state which has or can obtain personal jurisdiction over the respondent.” (Emphasis added.) Arkansas Code Annotated section 9-17-307(a) (Repl. 2002) provides, “A support enforcement agency of this state, upon request, shall provide services to a petitioner in a proceeding under this chapter,” and subsection (c) of that statute provides, that “a tribunal of this state shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.” (Emphasis added.) Our statutes thus explicitly provide for OCSE to enforce spousal support orders; therefore, the trial court erred in refusing to issue an order confirming the entire order, including spousal support.
Appellee cites Chaisson v. Ragsdale, 323 Ark. 373, 914 S.W.2d 739 (1996), for the proposition that UIFSA is limited only to the enforcement of child support. The statutes cited above refute that assertion. Furthermore, Chaisson is distinguishable from the present case; in Chaisson, the trial judge granted the mother a setoff against child support for debts she had paid that were the responsibility of the father, and the trial judge also granted visitation rights to the mother. Our supreme court reversed and remanded the case, finding that the UIFSA petition was limited to establishment of child support and its enforcement and that the trial judge exceeded his authority under UIFSA in resolving issues of setoff and visitation. Spousal support was not an issue in Chaisson as it is in the present case, and the holding in Chaisson is simply not applicable to the present case.
Reversed and remanded for entry of an order registering the entire support order.
Hart and Crabtree, JJ., agree.
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