author: ROBERT J. GLADWIN, Judge. JOSEPHINE LINKER HART, Judge,

text:
    2009 Ark. App. 474
    John ADAMS and Marie Adams, His Wife, Appellants, v. Bill MOODY, Appellee.
    No. CA 08-870.
    Court of Appeals of Arkansas.
    June 17, 2009.

      John P. Adams and Anne Marie Adams, pro se.
    Johnson, Sanders & Morgan, by: Roger L. Morgan, Mountain Home, for appellee.
   ROBERT J. GLADWIN, Judge.

11Appellants John and Marie Adams appeal the dismissal of their counterclaim and entry of a default judgment against them granted by the Baxter County Circuit Court on April 21, 2008. On appeal, appellants contend that the trial court abused its discretion in granting the default judgment and dismissing the counterclaim and erred in enjoining appellants to comply with restrictive covenants. We affirm.

Appellee Bill Moody filed suit on December 29, 2005, against appellants who own real property adjacent to his on the White River in Baxter County, Arkansas. Appellee claimed that appellants’ property was subject to restrictive covenants that had been breached by appellants. Appel-lee contended that the violation of the restrictive covenants had caused the value of his own property to diminish and that he was entitled to damages | ¡.against appellants. He also asked that appellants be enjoined from the described violations and that they bring their property into compliance with the restrictive covenants.

Appellants filed on March 6, 2006, a motion for extension to file an answer claiming that appellant John Adams had undergone three surgeries since February 2006, and was bedridden. Appellants sought an additional forty-five days to file an answer or responsive pleading. The trial court granted the extension up to and including May 1, 2006.

On April 21, 2006, appellants filed a motion for an additional extension of time to file an answer. They alleged that appellant John Adams had undergone five surgical procedures since November 11, 2005, and would have to undergo an additional surgery, which was scheduled for April 26, 2006. Appellant John Adams claimed in the motion that he was not physically or emotionally able to participate in the litigation at that time. He further stated that he was not medically released from his physicians and would not be for several months. He attached letters from an attorney and two doctors in support of his motion.

On April 25, 2006, appellee filed an objection to appellants’ motion for additional time to answer. By May 1, 2006, no order was entered that addressed the motion for additional time to file an answer. However, on May 3, 2006, appellants filed a reply to appellee’s objection to. their request for an extension. In it, they claimed that when the first extension was granted, they were unaware appellant John Adams would have to have an additional surgery on April 26, 2006.

| aAppellee filed a motion for default judgment on May 17, 2006. Appellants filed their answer to the complaint on May 30, 2006, the same date on which they claim they received their copy of the motion for default judgment. They claimed that the appellee did not mail his motion for default judgment to them until seven days after the date of the certificate of service on the motion. In their answer, appellants alleged that the restrictive covenants were no longer enforceable; that appellee had unclean hands; that no other neighbors joined the lawsuit; and that any non-conforming structure had been in place for nine years before appellee bought his property. Appellants also claimed that there was nothing in the restrictive covenants that required a “spirit of the covenants” and raised the affirmative defenses of laches, statute of limitations, estoppel, and unclean hands. Appellants also filed a counterclaim on the same date. On June 2, 2006, appellee filed a motion to strike appellants’ answer and counterclaim pursuant to Rule 12 of the Arkansas Rules of Civil Procedure.

Appellants argued before the trial court that they had been told by the court clerk “not to worry” each time they made inquiries about their pending motion for extension and that the trial court would contact them once a ruling had been made. Appellants claimed that they relied upon these statements. After a hearing on the default judgment, the trial court entered an order on April 9, 2007, which states in part as follows:

When a pleader fails to assert a counterclaim, he shall be entitled to assert such counterclaim by amended or supplemental pleading subject to the requirements and conditions of Rule 15 of the Arkansas Rules of Civil Procedure. ARCP 13(e). However, the time limits on answers apply to counterclaims. In other words, in order |4to have the right to assert a counterclaim, a defendant has to have filed a timely answer or response to the complaint.
For these reasons, the Plaintiffs motion to strike the Defendant’s counterclaim should be and hereby is granted. The Defendants may attempt to assert their claim by separate action. The Plaintiffs attorney shall contact the Court’s Trial Court Assistant to schedule a date for hearing on damages on the Plaintiffs default judgment and give notice of the date and time of said hearing to the Defendants.

On April 12, 2007, appellants filed a motion for disposition of appellee’s motion for default judgment contending that the trial court failed to address the issue of default judgment in its April 9, 2007 order. On August 3, 2007, appellants filed a motion to strike demand for default judgment arguing that the motion was technically deficient because the certificates of service on both the motion and brief stated that they were mailed on May 17, 2006, but were postmarked on May 24, 2006.

The trial court heard testimony on October 23, 2007, from appellants as to their arguments that the default judgment and dismissal of their counterclaim should be set aside. The trial court then denied all of appellants’ motions and heard testimony from appellee as to damages. A judgment was filed on April 21, 2008, finding that appellants were in violation of the restrictive covenants and ordering them to comply with those covenants. The trial court further ordered appellants to remove the structure, which is nearer than five feet to a side line, and clean up and remove the clutter and other debris on their lot within fourteen days of the date of the judgment. Appellants were also ordered to finish all the structures on their property, bringing them fully into compliance with the restrictive | ^covenants within ninety days of the date of the judgment. Appellants filed a notice of appeal on April 29, 2008, and this appeal followed.

Our supreme court set forth the standard of review in default-judgment cases as follows:

This court has elected to follow the federal courts in considering “opposition to a motion for entry of a default judgment as a motion to set aside a default judgment.” B & F Eng’g, Inc. v. Cotroneo, 309 Ark. 175, 178, 830 S.W.2d 835, 837 (1992). Therefore, Rule 55 of the Arkansas Rules of Civil Procedure applies to these cases. This court reviews a circuit court’s decision not to set aside a default judgment under Rule 55 under an abuse-of-discretion standard. Nucor Corp. v. Kilman, 358 Ark. 107, 117, 186 S.W.3d 720, 726 (2004). The same standard applies to a circuit court’s decision to grant or deny an opposed motion for default judgment. See B & F Eng’g, 309 Ark. at 178, 830 S.W.2d at 837.

Solis v. State, 371 Ark. 590, 597, 269 S.W.3d 352, 357-58 (2007).

Appellants argue that the trial court erred and abused its discretion when it granted a default judgment against them and dismissed their counterclaim. In support of this argument, appellants first claim that they relied on statements and representations made by the trial court and court officer. They contend that the court clerk told them “not to worry” and that the court would contact them when a ruling on the motion was made. Appellant Marie Adams claims that this happened on several occasions. Appellants cite Arkansas Rule of Civil Procedure 55(c)(1), which allows for a default judgment to be set aside for mistake, inadvertence, surprise, or excusable neglect. Appellants maintain that appellant John Adams’s health problems and their being lulled into a false sense of security by the court clerk fall within Rule 55(c)(1).

I ¡Appellants cite Fitzwater v. Harris, 231 Ark. 173, 176, 328 S.W.2d 501, 503 (1959), where our supreme court held that failure to file an answer within the required time to be either “excusable neglect” or “other just cause” under Act No. 53 of 1957. That Act had been amended to include language that a default should be ordered “where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act.” Id. at 175, 328 S.W.2d at 503. Appellants herein point out that the attorney in Fitzwater had been “lulled into a feeling of security that the case would not be tried before” a certain date due to both parties’ agreement and language exercised by the circuit judge. Id. at 176, 328 S.W.2d at 503.

Appellants also liken their case to Leaming v. McMillan, 59 Ark. 162, 26 S.W. 820 (1894), where our supreme court set aside a dismissal where, on an application by an administrator to set aside a judgment of dismissal rendered against his decedent, it appeared that the decedent was at the time of the dismissal eighty years of age, feeble, and unable to leave the house, and that his attorney was summoned to a distant place on account of illness of his wife. Id. The court also held that the plaintiffs cause of action was meritorious; and therefore, the dismissal was set aside. Id. Appellants herein contend that the illness of appellant John Adams was so severe as to 'prevent him from appearing, as well as his wife because she was his caretaker.

Appellee argues, and we agree, that appellants were incorrect to rely on the statements made by the trial-court judge and the court officer. It is clear that a motion for 17additional time in which to answer a complaint does not extend the time for filing an answer under Arkansas Rule of Civil Procedure 12. See Friend v. Goslee, 276 Ark. 484, 637 S.W.2d 568 (1982). The burden is on the movant to obtain a ruling from the trial court, and a failure to do so constitutes a waiver of the motion. See Rea v. Ruff, 265 Ark. 678, 580 S.W.2d 471 (1979). Here, the trial judge did not extend the time frame from May 1, 2006, in which to file an answer, and therefore, appellants were in default when they did not file an answer on or before May 1, 2006. The burden was on appellants to ascertain whether the trial judge had extended the time to file an answer.

Second, appellants claim that default judgments are not favorites of the law. Nat’l Sec. Fire & Cas. Co. v. Barnes, 65 Ark.App. 13, 984 S.W.2d 80 (1999). They allege that Arkansas Rule of Civil Procedure 55 was revised in 1990 so that more cases would be decided on the merits instead of upon the technicalities that often lead to default judgment. See Richardson v. Rodgers, 334 Ark. 606, 976 S.W.2d 941 (1998). Courts now have discretion in determining whether to grant a default judgment under Rule 55. Id.

It is true that default judgments are not favorites of the law. However, under Rule 55(c), it was proper for the trial court to enter a default judgment and refuse to set aside such default. Under Arkansas law, the failure to attend to business is not excusable neglect for default-judgment purposes. Israel v. Oskey, 92 Ark.App. 192, 212 S.W.3d 45 (2005). Ap-pellee also asserts that appellant John Adams’s health condition did not prevent appellants from filing numerous pleadings prior to the May 1, 2006 deadline.

IsThird, appellants contend that appel-lee’s motion for default judgment was technically deficient and should have been set aside. Appellants cite Arkansas Rule of Civil Procedure 5, which provides in part:

Every pleading, paper or other document required by this rule to be served upon a party or his attorney, shall contain a statement by the party or attorney filing same that a copy thereof has been served in accordance with this rule, stating therein the date and method of service and, if by mail, the name and address of each person served.

Ark. R. Civ. P. 5(e).

Rule 7 of the Arkansas Rules of Civil Procedure states in part: “The rules applicable to captions, signings, and other matters of form of pleadings apply to all motions and other papers provided for by these rules.” Ark. R. Civ. P. 7(b)(3). Appellants argue that statutory service requirements must be strictly construed. See Raymond v. Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001). Appellants also cite Smith v. Sidney Monerief Pontiac, Buick, GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003), where our supreme court held that the service requirements imposed by the Arkansas Rules of Civil Procedure were not strictly complied with when the deadline for responding to the complaint was misstated.

Here, appellants contend that appellee’s attorney filed his motion for default judgment on May 17, 2006, with a certificate of service alleging the motion was mailed to appellants on that same date. However, the motion was not mailed until May 24, 2006, as evidenced by the postmarked date on the envelope. Therefore, appellants maintain that service on them was not strictly in compliance with the rules and is invalid.

| ¡Appellee argues that the motion for default judgment was not technically deficient and should not be set aside. He contends that on May 17, 2006, he filed his motion for default judgment, and on May 22, 2006, he provided appellants with a copy of the motion. In a letter attached to the motion, he informed appellants that a hearing would be held on the motion on June 20, 2006. A hearing was then held on September 26, 2006, and a final hearing was held on October 23, 2007. He claims that appellants had ample opportunity to present their side of the issue, and the fact that there was a delay in mailing the motion to them did not prejudice them in any way. He contends that appellants’ case was presented on two different days by two different lawyers, and they were provided with every opportunity to present their case. We hold that the trial court did not abuse its discretion in granting a default judgment where the delayed mailing of the motion did not prevent appellants from presenting their case.

Fourth, appellants claim that they demonstrated legitimate defenses and meritorious claims as required by Rule 55, such as laches, statute of limitations, estoppel, real party of interest, waiver, and lack of subject-matter jurisdiction. They argue that the structures complained of by appel-lee are actually on the Corps of Engineers’ flowage easement and not subject to the restrictive covenants or the trial court’s subject-matter jurisdiction. Their other defenses included that they owned their property for nine years before appellee purchased his. Further, no other persons in the subdivision had ever complained, and the | ^restrictive covenants had never been enforced, arguably making them no longer enforceable.

The naked allegation that a party has a meritorious defense does not warrant setting aside a default judgment. Abercrombie v. Richards, 248 Ark. 1322, 455 S.W.2d 887 (1970). Appellee states that the supreme court defined a meritorious defense as follows:

[I]t is evidence (not allegations) sufficient to justify the refusal to grant a directed verdict against the party required to show a meritorious defense. In other words, it is not necessary to prove a defense, but merely present sufficient defense evidence to justify a determination of the issue by a trier of fact.

Tucker v. Johnson, 275 Ark. 61, 66, 628 S.W.2d 281, 283 (1982), distinguished on other grounds by Clouse v. Ngau Van Tu, 101 Ark.App. 260, 274 S.W.3d 344 (2008). Appellee claims that appellants’ pleadings, which were filed late, contain mere allegations that defenses exist. They have offered no proof to support the mere allegations contained in the pleadings, and failed to prove that a meritorious defense existed. We hold that the trial court did not abuse its discretion in determining no meritorious defense was presented.

Finally, appellants assert that substantial compliance bars a default judgment against them. Appellants claim that the filing of any responsive pleading, even one that does not go to the merits of the case, has been held sufficient compliance to prevent a default judgment. See West v. Page, 228 Ark. 13, 305 S.W.2d 336 (1957) (where a building contractor filed a complaint in chancery court and summons was served on January 11, and on January 26, the building owners filed a motion to transfer the cause to circuit court; such motion was held to be in compliance with the statutory requirement that the “defense” to l1Tthe complaint be filed within twenty days). Appellants contend that their filing of two motions for extension of time to file an answer should be considered substantial compliance.

However, appellants’ motion to extend time to file an answer was not a substitute for the filing of an answer. Appellants are wrong when they claim that substantial or sufficient compliance existed to bar the entry of a default judgment. As stated above, a motion for additional time in which to file an answer does not extend the time for filing an answer under Arkansas Rule of Civil Procedure 12. See Friend, supra. Based upon the foregoing, we hold that the trial court did not abuse its discretion in granting the default judgment and refusing to set it aside.

Where a case is tried with the circuit court sitting as the trier of fact, 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. White v. McGowen, 364 Ark. 520, 222 S.W.3d 187 (2006). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.

Appellants’ second point on appeal is that the trial court erred in its order of damages enjoining them to comply with restrictive covenants. Appellants argue that appellee failed to present any proof to support his allegation that the structures on appellants’ property were | ,2not erected with FHA approved materials, as was found by the trial court. Appellants claim that this issue was not raised in the petition and therefore cannot be considered by the court. Appellants then refute all the testimony offered by appellee at trial. Appellants conclude this argument by claiming that their property does not constitute a nuisance as defined by Black’s Law Dictionary.

Appellee points out that the findings contained in the judgment of the trial court follow the appellee’s petition. Appellants failed to answer that complaint, and appellants’ default admits to be true all material allegations set forth in the complaint. See Shelton v. Landers, 167 Ark. 638, 270 S.W. 522 (1925).

Appellants also contend that the trial court erred in its order of damages because the right to an injunction requiring the removal of encroaching buildings is governed by equitable principles. Appel-lee testified that the storage structure on appellants’ property is not within five feet of the property line as required under the restrictive covenant, but was within a matter of inches. However, appellants maintain that appellee offered no proof to support his allegation. Appellants argue that there is no encroachment on appellee’s property, but if so, it is only slight and was not done intentionally. Therefore, removal of the building would be a harsh, drastic and totally inequitable remedy. See Stuttgart Elec. Co. v. Riceland Seed Co., 33 Ark.App. 108, 802 S.W.2d 484 (1991) (where this court held that the right to an injunction requiring the removal of encroaching buildings upon the property of others is governed by equitable principles); see also Clifford Family Ltd. Liability Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998) (where our supreme court held that the chancellor erred in examining respective properties to determine whether encroachment interfered with landowners’ enjoyment of their land, rather than enforcing covenant by requiring removal of encroachment).

Appellants also rely on Arkansas Code Annotated section 18-11-501, which provides:

Circuit Judges are authorized to exercise their discretion to balance the equities between or among parties when considering whether to award injunctions or damages in cases involving encroachment of interior setback lines in residential subdivision restrictive covenants.

Appellants argue that, considering all the facts and evidence, it was clearly erroneous for the trial court to order the removal of their storage building as it was a harsh, ■ drastic and totally inequitable remedy.

Appellee argues that the findings of the trial court are based upon appellee’s un-contradicted testimony. Appellee testified about the clutter and debris on the property, that a structure was within inches of the property line, and that the cabin was less than 900 square feet and does not meet federal housing standards. We hold, therefore, that there was ample uncontra-dicted evidence to support the trial court’s findings, and the trial court was not clearly erroneous in its decision.

Finally, appellants argue that the trial court’s injunction order was clearly erroneous because restrictive covenants may be lost due to laches, unclean hands, statute of limitations, waiver, acquiescence, or when enforcing them would be oppressive and 114inequitable. Appellants contend that appellee admitted that both of appellants’ structures were on their property when he purchased his adjacent property in 2004. He never questioned appellants about whether their cabin met the requirement of 900 square feet, nor did he mention that he thought the storage building was not within the required five-foot side setback. Appellants contend that they were not made aware of these allegations until the complaint against them was filed by appellee. Further, the restrictive covenants do not have time limitations or restrictions to erect structures or improvements on the property. Appellants maintain that they have not completed construction of their cabin, and that appellant John Adams has been unable to perform further substantial work on the property due to his surgeries.

Appellee claims that appellants failed at the trial court to offer any proof on this matter or to raise these defenses in any way. He contends that appellant Marie Adams’s testimony does not support any of the defenses raised by appellants. The only issue addressed by Mrs. Adams was-the reason for not filing a timely answer. Because the trial court’s order enjoining appellants to comply with the restrictive covenants was not clearly against the preponderance of the evidence, we affirm.

Affirmed.

PITTMAN, ROBBINS, and KINARD, JJ., agree.

HART and GRUBER, JJ., dissent.

JOSEPHINE LINKER HART, Judge,

dissenting.

| j¿There are many reasons why this case should be reversed. First and foremost, the majority fails to address, except in a cursory fashion, the gravamen of the Adamses’ second major point. The Adamses assert that the proof that their dwelling did not comport with FHA regulations was incompetent because Moody was not qualified to so opine. Further, the regulations, which could speak for themselves, were not introduced into evidence. While it is true that Moody testified, in a conclusory fashion and over the Adamses’ objection, that the house did not meet FHA standards, this hardly constitutes “uncontradicted evidence.” See Dacus v. Burns, 206 Ark. 810, 177 S.W.2d 748 (1944). However, even if the majority was able to correct these deficiencies in its opinion, it cannot escape the fact that there is merit in the Adamses’ argument.

When there is a default judgment entered in, for instance, a personal injury case, liability is deemed established and only damages need be proven. This process, however, does not easily fit the case at bar, where the relief requested is not monetary, but injunctive. The Adamses were ordered to make their dwelling conform to FHA regulations. But as noted previously, the regulations were not entered into evidence (and no request to take judicial notice of the regulations was made). Further, there was no competent testimony as to how the dwelling did not conform to FHA regulations.

This situation is of great consequence' because the judgment can only be enforced with the trial court’s contempt power; there is no monetary judgment to execute. In the | ifievent that a contempt petition is necessary, the Adamses have not been told in the order currently before us what they were required to do to make their house conform to FHA regulations. To enforce this order, the trial court would be required to first determine what the FHA regulations require and then how the Adamses’ house does not conform to these regulations. This is the proof that should have been presented in the instant case.

The same problem applies to the trial court’s order that the Adamses remove a storage shed that is nearer than five feet from the property line. There is no proof, however, of where the property line was located. How will any court know if the Adamses have complied with its directive? Before a person can be held in contempt for violating a court order, the order must be definite in its terms, clear as to what duties it imposes, and express in its commands. Ivy v. Keith, 351 Ark. 269, 92 S.W.3d 671 (2002). In effect, the trial court has entered an unenforceable order. I would reverse this case and order the trial court to conduct a full merits hearing on this issue.

I also find significant problems with the majority’s handling of the Adamses’ first point. First, it is worth noting that this case is not a typical default judgment where, after good service, a defendant never acknowledges that a lawsuit has been filed against him or her. Indeed, the Adamses did respond, albeit not with a typical “answer.” Accordingly, I find merit in the Adamses’ argument that the filing of their motions for extension of time to file an answer was a sufficient response so as to prevent a default. Arkansas Rule of Civil Procedure 55(a) states:

hgWhen Entitled. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules, judgment by default may be entered by the court.

The reporter’s note to Rule 55 indicates that the phrase “otherwise defend” in Rule 55(a) means the filing of motions, which is equivalent to “appearing.” (The commentary cites Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987), which so holds.) “Appearance” is defined as “A coming into court as party to a suit, either in person or by attorney, whether as plaintiff or defendant. The formal proceeding by which a defendant submits himself to the jurisdiction of the court.” Black’s Law Dictionary 63 (6th ed.1991). The majority attempts to sidestep this issue by citing Friend v. Goslee, 276 Ark. 484, 637 S.W.2d 568 (1982), for the proposition that a motion for additional time is not a substitute for filing an answer. This authority, however, is inapposite as Goslee clearly does not answer the question. Moreover, Gos-lee expressly states that Rule 55 was not raised at the trial court or on appeal and therefore was not considered. Although the trial court had within its discretion the authority to strike the Adamses’ affirmative defenses and deny permissive joinder of the Adamses’ counterclaim,1 believe it clearly erred by not allowing this case to proceed on the merits and requiring Moody to prove his case.

11sHowever, even assuming for argument’s sake that the trial court was correct in granting a default judgment, I believe its reasons for refusing to set it aside are not sound, and the majority fares no better.' I believe that the Adamses demonstrated legitimate defenses and meritorious claims and met the criteria set forth in Arkansas Rule of Civil Procedure 55. In their answer, the Adamses raised laches, statute of limitations, estoppel, real party in interest, waiver, and lack of subject-matter jurisdiction as defenses. The Adamses also made factual assertions in support of these defenses. I have found no case that states that he must do more. I believe the majority’s reliance on Abercrombie v. Richards, 248 Ark. 1322, 455 S.W.2d 887 (1970), is misplaced. While Abercrombie does state that a litigant must do more than make a “naked allegation that it has a meritorious defense,” I am only able to glean from the case that the appellant merely said he had a “meritorious defense,” without informing the trial court what those defenses were. Obviously Rule 55 does not require a trial on these defenses before the defenses can be asserted in the real trial.

Finally, I believe that there is merit to the Adamses’ argument that Moody’s motion for a default judgment was “technically deficient” and should be set aside. In his certificate of service for his Motion for Default Judgment, Moody recites that,

This is to certify that a copy of the foregoing document has been served on the [sic] John Adams and Marie Adams, his wife by mailing a copy to them at 1251 Vistaview, Cove, Memphis, TN 38127, postage prepaid, this 17th day of May, 2006.

119The same certificate of service was attached to Moody’s brief in support of his motion. However, the transmittal letter was dated May 22, 2006, and the envelope was postmarked May 24, 2006.

The majority suggests that this case is simply controlled by Rule 5 of the Arkansas Rules of Civil Procedure, and parrots Moody’s assertion in disposing of this issue by stating that the Adamses suffered no prejudice. However, a closer reading of Rule 5 indicates that this issue is not so easily taken care of. Rule 5 states:

(a) Service: When Required. Except as otherwise provided in these rules, every pleading and every other paper, including all written communications with the court, filed subsequent to the complaint, except one which may be heard ex parte, shall be served upon each of the parties, unless the court orders otherwise because of numerous parties. No service need be made upon parties in default for failure to appear, except that pleadings asserting new or additional claims for relief against them shall be served in the manner provided for service of summons in Rule 4. Any pleading asserting new or additional claims for relief against any party who has appeared shall be served in accordance with subdivision (b) of this rule.

By concluding that Rule 5 authorized Moody to serve his motion for default judgment by regular mail, the majority has acknowledged that the Adamses had appeared, so granting a default judgment was not appropriate.

However, even assuming that service by regular mail was appropriate in this case, I cannot subscribe to the majority’s approval of Moody’s demonstrably false affidavit of service, by its conclusion that the Adamses suffered no prejudice. I note that the supreme court’s latest case regarding service — admittedly of the summons and complaint under Rule 4 of the Arkansas Rules of Civil Procedure—Trusclair v. McGowan Working Partners, 2009 Ark. 203, 306 S.W.3d 428, suggests that lack of prejudice is not dispositive and that compliance with our rules for service must be “exact.”

I believe that the best course of action would be for this court to reverse this case.

      . Although the trial court had the authority to strike the Adamses’ counterclaim, it is puzzling that the trial court would choose to do so. The counterclaim sought monetary and injunctive relief against Moody for harassment as a declaratory judgment concerning new restrictive covenants that Moody had sponsored. It was clearly a permissive counterclaim, but if the trial court had even a passing interest in judicial economy it seems logical that the counterclaim could have been taken up while both parties were in court.


source: Caselaw Access Project

author: M. MICHAEL KINARD, Judge. ROBERT J. GLADWIN, Judge,

license: Public Domain

text:
    2009 Ark. App. 479
    Lee CAMPBELL, Appellant, v. Michael E. HANKINS, Appellee.
    No. CA 08-1163.
    Court of Appeals of Arkansas.
    June 17, 2009.

      Wright, Lindsey & Jennings, LLP, by: Kathryn A. Pryor and Gary D. Marts, Jr., Little Rock, for appellant.
    Ramsay, Bridgforth, Harrelson and Starling LLP, by: William M. Bridgforth, Pine Bluff, for appellee.
   M. MICHAEL KINARD, Judge.

| ,In this suit for personal injuries, appel-lee, Ms. Michael Hankins, sued appellant, Mr. Lee Campbell, for damages arising out of a vehicle collision. The collision took place in Pine Bluff, Arkansas, on May 17, 2004, at the intersection of Cherry Street and Thirteenth Street. Hankins, who was not subject to a stop sign, struck the side of the vehicle driven by Campbell, who had a stop sign on Thirteenth Street. Hankins filed suit in January 2006, alleging that Campbell had been negligent in failing to stop at the stop sign on Thirteenth Street, failing to maintain a proper look out, and failing to yield the right of way to her.

At the jury trial, Hankins testified that the accident occurred when she was driving down Cherry Street and a car came out of nowhere; she hit Campbell’s vehicle because she did not have time to stop. She stated that it was her belief that Campbell ran the stop sign on Thirteenth Street. Hankins testified that she went to South |2Arkansas Orthopedic the day after the accident for neck pain; after an x-ray, the doctor instructed her to take ibuprofen and told her to continue her normal activities. She did not have another doctor’s appointment until January 2005, at which time an MRI revealed evidence of disc herniation. Prior to the initiation of the lawsuit, Hankins saw more than one doctor and underwent physical therapy. She testified that after the accident she has continued to exercise. On cross-examination, Hankins conceded that she did not know the speed limit on Cherry Street and that she was not able to testify as to how fast she was going when the accident occurred.

The police officer on the scene of the accident testified that Campbell told her that he ran the stop sign, causing Han-kins’s vehicle to strike him. No one reported any injuries at the scene of the accident.

Campbell testified that he did stop at the stop sign; he looked left, then right, took off, and when he looked left again, Hankins was “right there.” He testified that he had not seen Hankins the first time he had looked left. He stated that he should have explained himself to the police officer. Campbell testified that he was at fault for the accident, “but not totally at fault.”

Both sides offered expert testimony regarding Hankins’s alleged injuries. During her case-in-chief, Hankins called Dr. Ronald Pritchard, a radiologist. Dr. Pritchard testified that he was involved in the diagnosis of cervical disc herniations in Hankins. He further testified that it was his opinion that it is more probable than not that the |3motor vehicle accident was the cause of the herniations. Campbell offered the deposition testimony of Dr. Scott Schlesinger, a neurosurgeon. Dr. Schlesinger testified that, based on his review of Hankins’s medical records, her deposition testimony, and her MRI films, it was his opinion that it would be impossible to conclude that the accident caused the herniations.

Prior to deliberations, the jury was instructed as follows:

Ladies and gentlemen, you have heard all the testimony and received all the evidence that you are going to receive in this case, and it is now time for me to instruct you as to the law.
It is your duty to determine the facts from the evidence produced in this trial. You are to apply the law as contained in these instructions to the facts and render your verdict upon the evidence and the law.... In deciding the issues, you should consider the testimony of the witnesses, the exhibits received in evidence.

In addition to the instructions regarding negligence and the rules of the road, the jury was given the AMI instruction on the issue of comparative negligence between the parties.

The jury returned a general verdict, in which they found “against Michael Han-kins in her complaint against Lee Campbell.” Only ten of the twelve jurors signed the verdict form. The circuit court entered a judgment for Campbell on April 4, 2008. Hankins filed a motion for a new trial on April 14, 2008, on the following bases: (1) that the decision of the jury was clearly contrary to the preponderance of the evidence presented at trial; (2) irregularities in the proceedings and misconduct of jurors ^prevented plaintiff from getting a fair trial. Attached to the motion were the affidavits of two jurors, W.A. McCas-kill and Harvey Spriggs. These two jurors, in identical affidavits, averred that the jury deliberations in this case were “heavily tainted by improper bias on the part of two fellow jurors (Wade and McPherson), who made it impossible for the plaintiff to receive a fair trial. All attempts at a careful, reasoned analysis or discussion of the facts of the case were met with continuous interruptions and with loud outbursts on the part of the aforementioned jurors.” Furthermore, they averred that another juror, McDaniel, had made an independent investigation by going to the scene of the accident during the lunch break. According to the affidavits, McDaniel “reported the results of his investigation and his opinions regarding the same to the other jurors during deliberations. Juror McDaniel was a juror voting in favor of the defendant and I believe his actions contributed to the verdict being handed down in favor of the defendant.”

The court granted the motion for a new trial “based on the evidence of misconduct by the jury.” The court found that the affidavits of juror McCaskill and juror Spriggs “clearly reflect misconduct on the part of at least three jurors,” that the “actions referenced in the affidavits [are] uncontroverted by the defendant,” and that the “jury failed to follow the instructions of the Court by considering evidence which was not introduced into evidence.” Appellant timely filed a notice of appeal, and this appeal followed.

|5Under Rule 59 of the Arkansas Rules of Civil Procedure, a court may grant a new trial for any of several enumerated grounds materially affecting the substantial rights of a party, including: 1) any irregularity in the proceedings by which the party was prevented from having a fair trial; 2) misconduct of the jury; 6) the verdict being “clearly contrary to the preponderance of the evidence.” The test we apply on review of the granting of a new trial is whether there was a manifest abuse of discretion. Hogan v. Holliday, 72 Ark.App. 67, 69, 31 S.W.3d 875, 876 (2000). A manifest abuse of discretion in granting a new trial means discretion improvidently exercised, i.e., exercised thoughtlessly and without due consideration. Id. A showing of an abuse of discretion is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Id. Accordingly, he has less basis for a claim of prejudice than does one who has unsuccessfully moved for á new trial. Id.; see also Metzgar v. Rodgers, 83 Ark.App. 354, 128 S.W.3d 5 (2003).

A party moving for a new trial under Ark. R. Civ. P. 59(a)(2) must demonstrate that its rights have been materially affected by the misconduct by showing that a reasonable possibility of prejudice has resulted from the juror misconduct. See Borden v. St. Louis Southwestern Railway Co., 287 Ark. 316, 698 S.W.2d 795 (1985). While prejudice is not presumed, St. Louis Southwestern Railway Co. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990), neither is there a requirement that the moving party show actual prejudice. Once a juror has contaminated the jury’s deliberations with extrinsic |f,evidence, a new trial will be warranted if there is a reasonable possibility of resulting prejudice. Borden, supra. To require the losing party to prove actual prejudice would place an impossible burden upon him. Id.

On direct appeal, Lee Campbell argues that the circuit court erred in granting Hankins’s motion for a new trial. Campbell argues that the affidavits were both (1) inadmissible under Ark. R. Evid. 606 and (2) insufficient in that they failed to show prejudice from any of the alleged juror misconduct.

Arkansas Rule of Evidence 606 provides that a juror may not testify as to what went on during deliberations except that he may testify “on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” It is clear by the plain language of the rule that the alleged “atmosphere of intimidation,” “continuous interruptions,” and “loud outbursts” are not matters that could properly be considered by the trial court because they are part of the internal deliberations of the jury. We do not agree with Hankins’s argument that the fact that voices were raised during deliberations somehow makes this a situation where the trial court could invade the sanctity of the jury room. We note that while there was an allegation of “improper bias” contained in the affidavits, there is no indication from the record that any juror was untruthful during voir dire. Jurors are presumed to be unbiased and qualified to serve. D.B. & J. Holden Farms Ltd. Partnership v. Ark State Hwy. Comrn’n, 93 Ark.App. 202, 218 S.W.3d 355 (2005). Hankins’s bare assertion of bias is not sufficient to overcome this presumption. Thus, to the extent the trial court considered the parts of the affidavits that referred to the internal deliberations of the jury on matters not relating to extraneous information or outside influence, this was error.

The issue before us is whether the alleged juror misconduct in visiting the scene of the accident — thus bringing in extrinsic evidence — provided a sufficient basis for the granting of a new trial. We hold that the trial court’s determination on this particular point was not a manifest abuse of its discretion. Given the standard of review, the trial court’s determination to grant or deny a motion for new trial is almost never overturned on appeal. See, e.g., B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984) (affirming the denial of a motion for new trial); Borden, supra (affirming the grant of a new trial based on two jurors going to the scene of the truck-train collision at issue); St. Louis Southwestern Railway Co., supra (affirming the denial of a motion for new trial). That this is an appeal from a grant of a new trial, rather than a denial, makes appellant’s burden of showing an abuse of discretion even more difficult. See Hogan, supra.

In Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993), our supreme court analyzed Byers Trucking, supra, Borden, supra, and St. Louis Southwestern Ry. Co., supra, and gleaned the following factors to be used in determining whether juror misconduct warranted a new trial: (1) whether the trial court instructed the jury not to visit the site [sof the accident; (2) whether the juror offender simply voiced an opinion or engaged in an experiment relating to a crucial issue; (3) whether the offending juror’s observations impugned a fact presented by a party; (4) whether the affiant describes the alleged juror with sufficient specificity, which would include identifying the names of the jurors who engaged in the acts complained of. Here, the offending juror, McDaniel, was named. Further, prior to deliberations, the jury was instructed to determine the facts from the “evidence produced in this trial.” Despite this instruction, a juror went to the scene of the accident. McDaniel then “made an independent investigation of the facts of the case” and “reported the results of his investigation and his opinions regarding the same to the other jurors during the deliberations.” We note that comparative negligence was at issue, and there is a reasonable possibility that McDaniel’s observations and report thereon impugned facts presented by the parties.

We review the trial court’s determination for a manifest abuse of discretion, keeping in mind that showing an abuse of the trial court’s considerable discretion is even more difficult when a new trial has been granted. We bear in mind Moody Equip. & Supply Co. v. Union Nat’l Bank, 273 Ark. 319, 322, 619 S.W.2d 637, 639 (1981), where our supreme court wrote, “This trial judge had heard all the testimony and was in a position far superior to ours to know whether the proof was so nearly balanced that the misconduct of a witness and the juror might have tipped the scales one way or the other.... In a situation such as the one presented by this case, it is not our place to set |gaside the trial judge’s decision unless we can say with confidence that his discretion was markedly abused.”

After considering all of the relevant evidence, the trial court concluded that a new trial was warranted. In its findings of fact, the court concluded that the jury failed to follow the court’s instructions and considered evidence not introduced into evidence. There was a reasonable possibility that a view of the scene of the collision could have swayed jurors on the issue. Moreover, the affidavits were found by the trial court to be uncontroverted, and there is no indication in the record that any of the jurors may have already been familiar with the accident scene, as Campbell did not file any competing affidavit. We simply cannot say that the trial court’s decision to grant a new trial in this case constituted a manifest abuse of discretion. Therefore, we affirm on direct appeal.

Hankins cross-appeals, arguing that the circuit court erred in failing to grant her motion for a new trial on the ground that the jury’s verdict was clearly against the preponderance of the evidence. Because we affirm the trial court’s grant of a new trial on the basis of juror misconduct, we need not address the argument on cross-appeal.

Affirmed; cross-appeal moot.

PITTMAN, HART, and ROBBINS, JJ., agree.

GLADWIN and GRUBER, JJ., dissent.

ROBERT J. GLADWIN, Judge,

dissenting.

I believe that the trial court erred in granting a new trial; therefore, I respectfully dissent.

| i0The majority opinion adequately sets out the facts and the appropriate standard of review. Further, the majority is correct in holding that to the extent that the trial court considered parts of the juror affidavits that referred to the internal deliberations of the jury or matters not relating to extraneous information or outside influence was error. The allegations of “an atmosphere of intimidation,” “continuous interruptions,” and “loud outbursts” are clearly matters that the trial court could not properly consider. The only issue that the trial court could consider is whether the alleged misconduct, juror McDaniel’s visit to the intersection, is a sufficient basis to grant a new trial. It clearly is not.

Paragraph 4 of the two identical affidavits by the two jurors who dissented from the verdict states:

I attest that a fellow juror (McDaniel) made an independent investigation into the facts of the case in that he reported during the deliberations that he went to the scene of the accident during the lunch break. Juror McDaniel reported the results of his investigation and his opinions regarding the same to the other jurors during the deliberations. Juror McDaniel was a juror voting in favor of the defendant and I believe his actions contributed to the verdict being handed down in favor of the defendant along with jurors Wade and McPherson not permitting appropriate deliberations of the evidence presented during the trial.

In B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984), our supreme court held that the jury foreman’s opinion regarding the accident scene and its effect on the other jurors were plainly inadmissible under Rule 606(b) in determining whether to grant a new trial. Id. at 447, 665 S.W.2d at 262. The juror in Byers had not been cautioned against visiting the scene. Id. at 448, 665 S.W.2d at 262. The supreme [ncourt held that the allegation regarding a visit to the accident scene did not qualify as extraneous information, as the scene was on a public highway and open to inspection by everyone, therefore not considered information from an outside source. Id. Ultimately, the supreme court affirmed the trial court’s decision to deny a motion for a new trial based on juror misconduct.

In Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985), our supreme court affirmed the trial court’s grant of a new trial. Id. Borden involved a truck-train collision, and a central issue in the case was whether the truck driver’s view of the train was obstructed. Id. Included in the judge’s instruction was an admonition not to make an independent inquiry or investigation of the case. Id. Contrary to these instructions, two jurors went to the scene of the accident, and at least one reported that the truck’s view of the train would have been obstructed. Id.

The supreme court distinguished Borden from Byers stating:

The appellants next contend that this case must be reversed in accordance with B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). The argument is without merit as that case is easily distinguishable from this one. Both cases involve motions for new trials and, as we have already pointed out, that is a matter over which the trial judge has great discretion. In Byers a new trial was denied. We affirmed. Here, one was granted. We affirm. In Byers one juror went on a public highway to the place where the accident had occurred. He may have already been familiar with the scene and he had received no instructions forbidding him to conduct a private investigation. We held that under those circumstances there was no possibility of prejudice. Here, one of the critical issues was whether the train whistle was sounded. From the affidavit of the bailiff, the trial judge could have found that juror Adkins may have been influenced by the external information that he gained on the day he visited the scene. That is, the train whistle was not blown until the train was 200 feet from |12the crossing. In addition, the affidavits of jurors Beeson and Crawford could have caused the trial judge to find that the external information possibly influenced the jurors on the issue of visibility. Here, there was a clear possibility of prejudice.

Borden, 287 Ark. at 321, 698 S.W.2d at 797-98. In the instant case, like Byers, the juror was not warned not to visit the intersection, which was on Cherry Street, a main thoroughfare in Pine Bluff with which he was quite possibly already familiar. Further, the dynamics of the accident scene do not go to the central issue in this case. This case is clearly more in line with Byers than Borden.

Even if the visit to the scene was misconduct, we must next look to whether Hankins could have suffered any prejudice by it. A party moving for a new trial under Arkansas Rule of Civil Procedure 59(a)(2) must demonstrate that its rights have been materially affected by the misconduct by showing that a reasonable possibility of prejudice has resulted from the jury misconduct. See Borden, supra. Prejudice is not presumed, and the burden is on the moving party to show otherwise. See St. Louis S.W. Ry. v. White, 302 Ark. 193, 788 S.W.2d 483 (1990).

In Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993), our supreme court set out the following factors to be used in determining whether juror misconduct warranted a new trial: (1) whether the trial court instructed the jury not to visit the site of an accident; (2) whether the juror offender simply voiced an opinion or engaged in an experiment relating to a crucial issue; (3) whether the offending juror’s observations impugned a fact presented by a party; (4) whether the affiant describes the alleged juror | ,smisconduct with sufficient specificity, which would include identifying the names of the jurors who engaged in the acts complained of. Here, only the fourth factor is met, as juror McDaniel was named. The majority states that the jury was instructed prior to deliberations to determine the facts from the evidence produced at trial. This is different from being instructed to not visit the site of the accident. Further, there is no indication that any instruction of this nature was given prior to the trial court breaking for lunch, which is the time the affiant said juror McDaniel went to the scene of the accident.

However, these factors pale after viewing whether juror McDaniel offered an opinion or engaged in an experiment or impugned a fact offered by a party. A critical analysis of the alleged juror misconduct makes it clear that Hankins could not have suffered any prejudice. This was a simple intersection accident. The majority candidly admits there was a question of comparative negligence, specifically whether Campbell stopped at the stop sign or whether Hankins was speeding. There is no possible way that juror McDaniel could offer any information that would answer those questions. The affidavit fails to state any information that juror McDaniel gave that could have resulted in prejudice, and the majority opinion fails to provide even one example of an experiment or information that could have caused any prejudice. It simply concludes there was a reasonable possibility of prejudice.

The majority is correct in stating that it is difficult to reverse the grant of a new trial, but it is not unprecedented. See Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Smith, 5 Ark.App. 37, 632 S.W.2d 244 (1982). Simply because there is a high standard of review does not mean that we should rubber stamp every grant of a new trial. In this case, two jurors’ opinions of a case have been allowed to prevail over the opinions of ten jurors based on nothing more than the two jurors’ dissatisfaction with the verdict. As I would reverse the grant of a new trial, I would also affirm Hankins’s cross-appeal as the jury’s verdict was supported by substantial evidence.

GRUBER, J., joins.


author: RITA W. GRUBER, Judge.

text:
    2009 Ark. App. 481
    Michael Allen HATCHER, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1457.
    Court of Appeals of Arkansas.
    June 17, 2009.
    Anderson, Murphy & Hopkins, LLP, by: Brett D. Watson, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Leaann J. Irvin, Ass’t Att’y Gen., for ap-pellee.
   RITA W. GRUBER, Judge.

| ] Michael Hatcher was convicted by a jury of manufacturing methamphetamine and possessing drug paraphernalia, for which he was sentenced to terms of twenty-four years’ and ten years’ imprisonment, to run concurrently. His sole point on appeal is that the circuit court erred in denying his motion to suppress. We find no error and affirm Hatcher’s conviction.

When reviewing the denial of a motion to suppress evidence, we conduct a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Morgan v. State, 2009 Ark. 257, 308 S.W.3d 147. Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Id. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of |gthe witnesses. Id.

The issue in this case is whether the officers had consent to perform a warrant-less search of Hatcher’s home. Hatcher was on parole when he was arrested for these offenses. As a condition of his release on parole, Hatcher signed a document containing the following consent: “You must submit your person, place of residence, and motor vehicles to search and seizure at any time, day or night, with or without a search warrant, whenever requested to do so by any Department of Community Punishment Officer.”

On the date of Hatcher’s arrest, February 24, 2007, Hatcher’s parole officer, Craig Robie, was covering for Anthony Martin’s parole officer. Officer Robie testified that he and several Fort Smith police officers had been looking for four hours trying to locate Martin. He said that, during their search for Martin, an officer came and told Officer Robie they had received information that Martin was at Hatcher’s residence. Officer Robie testified that he and the other officers were conducting “a parole search” and that he was in control of contacting Hatcher. Officer Robie also testified that he was directing the officers. He said that he “asked them to travel with [him] to Mr. Hatcher’s residence to see if [they could] make contact with Mr. Martin.”

Officer Robie testified that, while looking through the window outside of Hatch-er’s home, he saw Martin standing by the kitchen table. He testified that he knocked on Hatcher’s front door, that Hatcher opened the door, and that he entered the residence and asked everyone to put their hands up. He said that the Fort Smith officers were there for |sbackup. Fort Smith police officers Bruce Fletcher, Brandon Bird, and Brett Rogers confirmed Officer Robie’s testimony that Officer Robie knocked on the door and made the first contact with Hatcher. Officer Robie stated that he smelled a very strong chemical odor, like a meth lab, as soon as Hatcher opened the front door. During a search of Hatcher’s home, officers discovered evidence later used against Hatcher at trial. Hatcher appeals the circuit court’s denial of his motion to suppress this evidence.

As a general rule, “[a] warrant-less entry into a private home is presumptively unreasonable.” Norris v. State, 338 Ark. 397, 400, 993 S.W.2d 918, 920-21 (1999) (citing Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). The presumption may be overcome if the law-enforcement officer obtained consent to conduct a warrantless search. Ark. R.Crim. P. 11.1. The supreme court has held that a parolee’s advance consent is valid because the parolee remains in the custody of the penal institution from which he is released, and the “special needs of the parole process call for intensive supervision of the parolee making the warrant requirement impractical.” McFerrin v. State, 344 Ark. 671, 678-679, 42 S.W.3d 529, 534 (2001) (quoting Cherry v. State, 302 Ark. 462, 467, 791 S.W.2d 354, 357 (1990)).

Hatcher makes two arguments in support of his contention that the circuit court erred in denying his motion to suppress. First, he contends that the officers’ search did not comply with the terms of his consent because no one “requested” to search his home, and second, he contends that the search was not a valid “parole search” because his parole officer, Officer Robie, did not solicit the help of police to search Hatcher’s home; rather, the[4police sought out Officer Robie to help them.

The supreme court addressed and rejected the first argument in McFerrin because the parolee was required to grant any request to search and, therefore, the parolee’s verbal consent at the time of the search was unnecessary. 344 Ark. at 679, 42 S.W.3d at 534. In McFerrin, police searched the parolee’s sister’s home, where the parolee was living, without requesting consent from either the parolee or his sister immediately before the search. Id. The only consent obtained for the search in McFerrin was the consent signed by the parolee as a condition of his release — the language of the consent was identical to Hatcher’s consent — and a verbal consent by the parolee’s sister given prior to the parolee’s release as a condition of his living in her home. Id. Accordingly, we conclude that the consent signed by Hatcher as a condition of his release requiring him to submit to a search of his place of residence was sufficient to support Officer Robie’s search.

Furthermore, the language in the consent signed by Hatcher, “whenever requested to do so ...,” does not place a burden on the parole officer verbally to request entry into the residence. Any refusal by the parolee would be futile because the consent clause authorizing the warrantless search states that the parolee must submit to a search and is therefore mandatory. See McFerrin, 344 Ark. at 679, 42 S.W.3d at 534.

We also reject Hatcher’s second argument. Officer Robie testified that he solicited the other officers’ help in searching for Martin at Hatcher’s home. He testified that he directed the other officers, that he knocked on Hatcher’s door, and that he was the first one 15to enter Hatch-er’s home. A parole officer may enlist the aid of the police, and a police officer may act at the direction of the parole officer without overreaching the scope of the search. Cherry, 302 Ark. at 468, 791 S.W.2d at 357. Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Morgan, 2009 Ark. at 6, 308 S.W.3d at 152. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id. The testimony provided in this case is sufficient to support the circuit court’s ruling.

Accordingly, we hold that the circuit court’s denial of Hatcher’s motion to suppress was not clearly against the preponderance of the evidence, and therefore we affirm.

Affirmed.

ROBBINS and BROWN, JJ„ agree.


author: COURTNEY HUDSON HENRY, Judge.

text:
    2009 Ark. App. 508
    Francisco Gerardo RODRIGUEZ, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1362.
    Court of Appeals of Arkansas.
    June 24, 2009.

      J. Marvin Honeycutt, Van Burén, Fort Smith, for appellant.
    Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for ap-pellee.
   COURTNEY HUDSON HENRY, Judge.

h Pursuant to Rule 24.3 of the Arkansas Rules of Criminal Procedure, appellant Francisco Gerardo Rodriguez entered a conditional plea of nolo contendere to possession of cocaine with intent to deliver, possession of methamphetamine, and possession of drug paraphernalia. For reversal, Rodriguez argues that the circuit court erred in denying his motion to suppress on the basis that the police officer did not have probable cause to believe that he committed a traffic violation. We affirm.

On the morning of November 13, 2007, Officer Olen Craig parked his patrol car near the eastbound lane of Interstate 40 in Van Burén. At 4:34 a.m., Rodriguez drove his vehicle past the officer and reduced the car’s speed. Officer Craig decided to follow and observed that Rodriguez turned on his bright headlights, met two vehicles with his bright headlights | gstill illuminated, and then dimmed his headlights when he approached a third vehicle. Shortly thereafter, the officer stopped Rodriguez for failing to dim his lights for oncoming vehicles. During the stop, Rodriguez gave the officer a rental contract, which showed that someone other than Rodriguez had rented the vehicle, and Officer Craig noticed that the vehicle was rented in Tucson, Arizona. Rodriguez told the officer that he was on his way to a “hair show” in Chicago. When Officer Craig inquired about the hair show, Rodriguez appeared very nervous, and according to the officer, “sweat popped out on his forehead.” Rodriguez told Officer Craig that the hair show would last for two weeks, but the rental agreement revealed that the vehicle was due to be returned in Tucson one week later. The officer also detected a strong odor of air freshener emanating from the vehicle.

Officer Craig conducted a check of Rodriguez’s driver’s license and advised him of the nature of the stop. The dispatch officer informed Officer Craig of the criminal history of an individual with the same height and name as Rodriguez. Then, Officer Craig asked for permission to search Rodriguez’s vehicle. To ensure that Rodriguez understood the question, the officer asked for and obtained consent two more times before searching the vehicle. During the search, Officer Craig noticed a large suitcase underneath several articles of clothing in the rear cargo area. He opened the suitcase and discovered fourteen kilograms of cocaine. In the front of the vehicle, the officer found a smoking pipe and two small, plastic containers of methamphetamine in a leather purse. Based upon his discovery of the ^contraband, Officer Craig placed Rodriguez under arrest and issued him a warning ticket for failure to dim his headlights to oncoming vehicles.

On November 20, 2007, the State filed a felony information charging Rodriguez with possession of cocaine with intent to deliver, possession of methamphetamine, and possession of drug paraphernalia. Rodriguez subsequently filed a motion to suppress the physical evidence. On July 11, 2008, the circuit court conducted a suppression hearing during which Officer Craig testified about his stop of Rodriguez, the subsequent line of questioning, the requests for permission to search, the multiple grants of permission, and the actual search of Rodriguez’s vehicle. During direct examination, the State inquired about the distance at which a driver was required to dim his lights in the presence of oncoming vehicles. Officer Craig responded that he believed the applicable statute contained a requirement of three hundred feet but that the distance was irrelevant because Rodriguez did not dim his lights at all for two vehicles. The State also introduced a video of the stop taken from Officer Craig’s patrol car and a copy of the warning citation that the officer issued to Rodriguez.

After the State rested and after hearing argument from counsel, the circuit court denied Rodriguez’s motion to suppress on the basis that Officer Craig had probable cause to believe that Rodriguez should have dimmed his headlights when approaching oncoming cars. The court further ruled that Rodriguez knowingly and intelligently gave his consent to the search of the vehicle.

14After the circuit court’s denial of his motion to suppress, Rodriguez entered a conditional plea to the charges, and the court sentenced him to concurrent terms of twenty-five years’ imprisonment for possession of cocaine with intent to deliver, ten years’ imprisonment for possession of methamphetamine, and ten years’ imprisonment for possession of drug paraphernalia. On his conviction for possession of cocaine with intent to deliver, he also received twenty-five years’ suspended imposition of sentence to run consecutively with the other sentences. Rodriguez timely filed his notice of appeal and now presents his argument for our review.

For the sole point on appeal, Rodriguez argues that the circuit court erred in denying his motion to suppress on the basis that Officer Craig stopped his vehicle on a mistake of law. Rodriguez challenges Officer Craig’s initial traffic stop by asserting that the officer lacked probable cause to believe that a traffic violation had been committed. Specifically, Rodriguez asserts that the officer misstated the distance requirements of the statute pertaining to the failure to dim headlights.

Officer Craig issued a warning citation to Rodriguez pursuant to Arkansas Code Annotated section 27-36-211(1)(A) (Repl.2004), which provides that “[whenever a driver of a vehicle approaches an oncoming vehicle within five hundred feet (500'), the driver shall use a distribution of light, or composite beam, so aimed that the glaring rays are not projected into the eyes of the oncoming driver.” In order to make a traffic stop, a police officer must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 559-60, 210 S.W.3d 62, 64 (2005). In assessing the existence of probable cause,' our review is liberal rather than strict. Laime, supra. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. Id. In the context of traffic stops, the supreme court has “repeatedly held that the degree of proof sufficient to sustain a finding of probable cause is less than that required to sustain a conviction.” Burris v. State, 330 Ark. 66, 73, 954 S.W.2d 209, 213 (1997).

With regard to our standard of review, a trial court’s decision to grant or deny a motion to suppress requires us to make an independent determination based on the totality of the circumstances, to review findings of historical facts for clear error, and to determine whether those facts give rise to reasonable suspicion or probable cause, while giving due weight to inferences drawn by the trial court. Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003). We will reverse a trial court’s ruling on a motion to suppress only if the ruling is clearly against the preponderance of the evidence. Medlock v. State, 79 Ark.App. 447, 89 S.W.3d 357 (2002). Due deference is given to the trial court’s findings in the resolution of evidentiary conflicts and determinations of credibility. Id.

lfiIn support of his mistake-of-law argument, Rodriguez cites Hinojosa v. State, 103 Ark.App. 312, 288 S.W.3d 718 (2008), a case involving a traffic stop for the improper display of a license plate. There, Hinojosa argued that the officer lacked probable cause to make the stop because no traffic violation occurred. Rodriguez’s argument, however, is misplaced because this court’s decision in Hinojosa was recently overturned by the supreme court. Hinojosa v. State, 2009 Ark. 301, 319 S.W.3d 258. Furthermore, in Hinojosa, the supreme court noted that it previously rejected a mistake-of-law argument in Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998) (holding that the question of whether an officer had probable cause to make a traffic stop does not depend upon whether the defendant is actually guilty of the violation that was the basis of the stop). The supreme court’s decision in Hinojosa instructs that the proper inquiry is whether there are “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Hi- nojosa, 2009 Ark. 301, at 3, 319 S.W.3d 258.

Here, Officer Craig testified that he stopped Rodriguez’s vehicle in the dark, early morning hours on a straight stretch of highway after witnessing Rodriguez’s failure to dim his bright headlights for two approaching vehicles. Because appellant did not dim his lights at all on two occasions, the officer’s misstatement about the statute’s distance requirement makes no legal difference. Thus, we conclude that the traffic stop was lawful because Officer Craig had probable cause to believe that a traffic violation occurred when Rodriguez failed to dim his lights for oncoming vehicles.

17For the foregoing reasons, as well as our standard of review, we hold that the circuit court properly denied Rodriguez’s motion to suppress. Accordingly, we affirm the circuit court’s ruling.

Affirmed.

PITTMAN and MARSHALL, JJ., agree.