author: JIM HANNAH, Chief Justice.

text:
    2009 Ark. 321
    Terry Don MATTHEWS, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1270.
    Supreme Court of Arkansas.
    May 28, 2009.
    Phillip A. McGough, P.A., by: Phillip A. McGough, North Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Valerie Glober Fortner, Ass’t Att’y Gen., for appellee.
   JIM HANNAH, Chief Justice.

| jAppellant Terry Don Matthews appeals from his conviction for aggravated robbery and his sentence to a term of thirty years’ imprisonment. His sole point on appeal is that the circuit court erred in refusing to give his proffered jury instruction on aggravated assault. We accepted certification of this case from the court of appeals because it involves a significant issue needing clarification or development of the law or overruling precedent. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(5) (2009). We affirm.

On October 23, 2007, Jarvis Young, an employee of Domino’s Pizza, was making a delivery to the home of Craig Boyd in Texarkana, Arkansas. As Young pulled up to the residence, he noticed a man, whom he later identified as Matthews, staggering down the |2street. Young asked Matthews if he needed assistance, and Matthews told him he had a gun and demanded his money and vehicle. Young ignored Matthews and went to the Boyd residence to make the delivery. As Young was waiting for Boyd to pay, he saw Matthews get into the delivery vehicle. Young went to confront Matthews, and Matthews told Young he had a gun and would shoot him if he did not give him money or the vehicle. Boyd noticed the altercation and walked outside, holding a flashlight and what he referred to as a “headache tool,” which was a piece of pipe with a doorknob taped to it. Matthews walked into Boyd’s yard and threatened to shoot him. Boyd then struck Matthews in the head with the “headache tool,” and Matthews fled the scene.

Texarkana Police Department Officer Wayne Easley arrived at the scene shortly thereafter and ultimately located Matthews being treated at a local hospital. Sergeant William Barr of the Texarkana Police Department testified that he went to the hospital and took pictures of Matthews and his injuries. Young later identified Matthews from a photo as his assailant.

Matthews was arrested and charged with aggravated robbery. At trial, Matthews contended that aggravated assault is a lesser-included offense of aggravated robbery and, accordingly, at the close of all evidence, he proffered an aggravated-assault instruction. The circuit court refused the instruction and ruled that the proof in the case did not justify giving the instruction for aggravated assault. Accordingly, the jury was given only the instruction 13for aggravated robbery. Matthews was convicted by a jury of aggravated robbery and sentenced, as a habitual offender, to a term of thirty years’ imprisonment. He now brings this appeal.

Matthews contends that the circuit court erred in refusing to instruct the jury on aggravated assault. The State responds that, because aggravated assault is not a lesser-included offense of aggravated robbery, the circuit court correctly refused Matthews’s proffered instruction.

The determination of whether an offense is a lesser-included offense of another is governed by Arkansas Code Annotated section 5 — 1—110(b) (Supp.2007). An offense is included in an offense charged if the offense:

(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;
(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or
(3) Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the offense’s commission.

Id. An offense must meet one of the three tests of section 5 — 1—110(b) to be considered as a lesser included. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

A robbery is committed if a person employs or threatens to immediately employ physical force upon another person, with the purpose of committing theft or resisting 14 apprehension immediately after committing theft. Ark.Code Ann. § 5-12-102(a) (Repl.2006). A robbery becomes aggravated robbery if the person is armed with a deadly weapon, represents by word or conduct that he or she is armed with a deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-12-103 (Repl.2006).

“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 or displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person.” Ark.Code Ann. § 5-13-204(a)(1) and (2) (Repl.2006). “A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result.” Ark.Code Ann. § 5-2-202(1) (Repl.2006).

Aggravated assault is not a lesser-included offense of aggravated robbery pursuant to section 5 — 1—110(b)(1) because the two offenses require different elements of proof. Aggravated assault requires proof of circumstances “manifesting extreme indifference to the value of human life,” whereas aggravated robbery does not require such proof. In addition, aggravated robbery contains an element of intent to commit theft; this element is not required to commit aggravated assault. Aggravated assault is not a lesser-included offense |5of aggravated robbery pursuant to section 5 — 1—110(b)(2) because aggravated assault does not consist of an attempt to commit aggravated robbery or an offense otherwise included within aggravated robbery, such as robbery. Finally, aggravated assault is not a lesser-included offense of aggravated robbery pursuant to section 5-l-110(b)(3) because, as explained above, aggravated assault does not differ from aggravated robbery only in the respect that a less serious injury or risk of injury to the same person suffices to establish the offense’s commission. Further, it does not differ only in the respect that a lesser kind of culpable mental state suffices to establish the offense’s commission. In sum, pursuant to section 5 — 1—110(b), aggravated assault is not a lesser-included offense of aggravated robbery.

Despite the fact that aggravated assault is not a lesser-included offense under the statute, Matthews points out that in Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988), we concluded that aggravated assault was a lesser-included offense of aggravated robbery because “the two offenses over lap [ped].” Id. at 309, 742 S.W.2d at 915. While we cited Arkansas Code Annotated section 5 — 1—110(b) (1987) in Bishop, we did not perform an analysis under that statute, and we recognize that we erred in failing to do so. Again, an offense must meet one of the three tests of section 5 — 1—110(b) to be considered a lesser-included offense. McCoy, supra. To the extent that Bishop is in conflict with this opinion, we overrule it. We hold that the circuit court did not err in refusing to instruct the jury on aggravated assault.

| (¡Affirmed.


source: Caselaw Access Project

author: M. MICHAEL KINARD, Judge. JOHN B. ROBBINS, Judge, KAREN R. BAKER, Judge,

license: Public Domain

text:
    2009 Ark. App. 410
    Lisa WHITWORTH, Appellant, v. Waymond Edward WHITWORTH Jr., Appellee.
    No. CA 08-1025.
    Court of Appeals of Arkansas.
    May 20, 2009.
    Bridges, Young, Matthews & Drake PLC, Pine Bluff, by Terry F. Wynne, for appellant.
    R. Margaret Dobson, Sheridan, for ap-pellee.
   M. MICHAEL KINARD, Judge.

| íAppellant, Lisa Whitworth, appeals from a denial of alimony by the trial court. We affirm the decision of the trial court.

The parties married in 1987 and divorced in 2007. Appellee has a degree in chemical engineering, which he received in 1982. Appellant has no education beyond a high school diploma, except for a few professional classes on working with children. The parties have two children who, at the time of the hearing, were ages nineteen and fifteen. Appellee was granted custody of the minor child and had been paying the college expenses for the non-minor child, who lives with him. The parties agreed to a distribution of the marital assets 12that include the marital home, four acres of property in Mabelvale, appellee’s retirement account, appellant’s IRA account, stock, and two vehicles.

In 2006, appellee had a gross income of $107,295. In 2007, appellee had a gross income of $106,340. In 2008, appellee was earning $54.30 per hour. Appellee was no longer working overtime, as he had previously. Appellee also has the following deductions from his pay: $134.30 every two weeks for health insurance for the children, $200 per pay period for a credit union and thrift plan, $410 for pension benefits and a stock purchase plan, and $600 toward a house payment of approximately $1100 per month. By agreement of the parties, if the marital home is sold, the equity, if any, is to be divided between the parties. Appellant was provided a trailer, which was located on property owned by her parents. Appellee testified that the household expenses were roughly the same after appellant moved out of the home. Eleven years prior to the divorce, the parties were approximately $200,000 in debt. They reduced their spending and paid off the debt in 2005. Appellee paid appellant $800 per month in temporary support until the hearing. Appellee also paid appellant $5000 as a down payment toward her half of the acreage in Mabelvale. Appellant paid no child support prior to the hearing, per agreement of the parties.

Appellee testified that appellant had several opportunities to earn money during the marriage, but failed to do so. Appellee testified that he paid for training classes for sales on a line of skin-care products as well as for photography training. Appel-lee also testified that |sappellant would substitute teach “when she felt like it” and that she did not take a job she was offered to sell insurance.

After the parties separated, appellant worked as a call-taker for a taxi company, earning six dollars and twenty-five cents per hour. Appellant left that position for a job in a restaurant that paid eight dollars per hour. She testified at the hearing that she left that position because she had a bad reaction to the aroma of food. As of the time of the hearing, appellant was unemployed. Appellant testified that she was planning to attend a two-year program in Oklahoma to become a dental assistant. Appellant testified that she had not worked enough to qualify for Social Security, she had no retirement, and she had no health insurance except for the insurance she had through appellee.

Appellant testified that she was diagnosed with ankylosis spondylosis, a disease of arthritis that attaches to the spine, in 1997. Appellant testified that the disease requires her to get up and walk around if she sits for a long period of time, and that it would make it difficult for her to hold a full-time job. Appellant also testified that she was diagnosed with fibromyalgia in 2000, which causes pain in her joints. Appellant testified that she also had TMJ, hypoglycemia, that she had suffered a recent stroke and that she had Bell’s palsy in her face. She stated that all of these conditions affected her ability to get a job. Appellant testified at the hearing that she had no prospects for a full-time job. Appellant also testified that appellee did not want her to work during the marriage, which appellee disputed. [4Appellant testified that she did not pay rent and did not have a car payment. Appellant testified that she needed two years of alimony in order to get through school.

The sole issue on appeal is whether the trial court erred in denying alimony to appellant. The decision to grant alimony lies within the sound discretion of the circuit court, and will not be reversed on appeal absent an abuse of discretion. Taylor v. Taylor, 369 Ark. 31, 250 S.W.3d 232 (2007). The award of alimony is not mandatory but is, instead, discretionary. Powell v. Powell, 82 Ark. App. 17, 110 S.W.3d 290 (2003). The purpose of alimony is to rectify an economic imbalance in the earning power and standard of living of the parties to a divorce in light of the particular facts of each case. Cole v. Cole, 89 Ark.App. 134, 201 S.W.3d 21 (2005). The primary factor to be considered in awarding alimony is the need of one spouse and the other spouse’s ability to pay. Id. Other factors include the parties’ financial circumstances, the amount and nature of the parties’ income, the extent and nature of the parties’ assets and resources, and the parties’ earning capacity and ability. Id.

At first glance, it appears as though appellee has great ability to pay, while appellant has great need. However, there was evidence introduced showing that, while appellant arguably has need for alimony, appellee’s financial situation is not as robust as his salary alone would indicate. Appellee still maintains a house payment and car payments for himself and the children while appellant, pursuant to the agreed upon property division, has no debt, no house payment, and no car payment. In addition, appellee is the primary source | Bof support for the parties’ remaining minor child and has been paying the college and living expenses of the non-minor child, who lives with him. The division of property in this case has been structured in a manner that effects an equitable split between the parties in lieu of alimony. Alimony and property divisions are complementary devices that a trial court employs to make the dissolution of a marriage as equitable as possible. Davis v. Davis, 79 Ark.App. 178, 84 S.W.3d 447 (2002).

Appellant testified that she suffers from several medical conditions, all of which she claimed would negatively impact her chances of securing full-time employment. However, the record reflects that appellant held two positions following the parties’ separation and that her health problems were not the reason she left either position. Appellant also did not submit any evidence that her health problems kept her from working prior to the parties’ separation. The record does not indicate that appellant’s health would be a major impediment to her finding employment.

Although the facts of this case would arguably support an award of alimony if one had been made, it is not our duty under our standard of review to simply substitute our judgment for that of the trial court, which was in a far better position to judge the credibility of the witnesses. It is instead our duty to determine if the trial court abused its discretion in making its findings regarding an award of alimony. We find that the trial court has not abused its discretion and affirm.

Affirmed.

GRUBER, MARSHALL, and HENRY, JJ., agree.

ROBBINS and MARSHALL, JJ., concur.

BAKER, J., dissents.

JOHN B. ROBBINS, Judge,

concurring.

|fJ agree with the majority opinion and its rationale for affirming the trial court. I write separately to point out that our court recently affirmed a denial of alimony where the circumstances of the requesting spouse were significantly more dire than Ms. Whitworth’s. See Evtimov v. Milanova, 2009 Ark. App. 208, 300 S.W.3d 110. In Evtimov, the requesting spouse could hardly communicate in English, was earning minimum wages from two part-time jobs, and was living out of his car inasmuch as the marital home was awarded to the more affluent spouse, who was earning a six-figure income as a professor at UALR. If we were correct in affirming the denial of rehabilitative alimony in Evti-mov, we surely do not err in affirming in this case.

MARSHALL, J., joins in this concurrence.

KAREN R. BAKER, Judge,

dissenting.

An award of rehabilitative alimony should be made in this case. Our courts initially recognized rehabilitative alimony in 1990, when this court considered Bolan v. Bolan, 32 Ark. App. 65, 796 S.W.2d 358 (1990). Rehabilitative alimony is alimony that is payable for a short, specified duration of time. See Bolan, 32 Ark.App. at 67 n. 1, 796 S.W.2d at 360 n. 1. The primary purpose of rehabilitative alimony is to afford the recipient a specific period of time in which to become self supportive. See id.

A popular treatise on divorce explains the importance of a trial court’s utilizing an award of rehabilitative alimony to allow a spouse who has been out of the work force for a significant amount of time the opportunity to become self-supporting:

Generally, the purpose of rehabilitative maintenance is to allow the recipient spouse to become self-supporting; its purpose is to aid the former spouse as he or she transitions back into the workplace and self sufficiency. Rehabilitative alimony enables the receiving spouse to establish the capacity for self-support commensurate with the standard of living established during the course of the marriage, through the redevelopment of previous skills or the provision of training necessary to develop new skills. The goal of self-sufficiency must, however, be balanced against the realistic likelihood that the spouse will be able to attain a level of support comparable to the standard of living enjoyed during the marriage, especially where the spouse has not been in the work force for a long period of time.
An award of rehabilitative alimony is also designed to permit former spouses to develop their own lives free from obligations to each other. Rehabilitative alimony is a “bridge-the-gap” measure to aid the recipient spouse in making the transition from married life to being single.
Other purposes rehabilitative alimony is intended to serve include the following:
• to give the paying spouse some predictability concerning financial obligations
• to prevent possible further court appearances by permitting the court to take into consideration reasonably foreseeable changes in the recipient spouse’s circumstances
• to encourage the recipient spouse to find employment or complete education or training leading to employment

24A Am.Jur.2d Divorce § 760 (2008) (footnotes omitted).

IsMs. Whitworth’s future self-sufficiency is a realistic likelihood if rehabilitative alimony is awarded. Rehabilitative alimony is specifically designed to bridge-the-gap from her role in the marriage as a homemaker and primary caretaker of the children to her independence as a single individual and independent contributor to the children’s welfare. While the youngest daughter would be close to the age of majority by the time Ms. Whitworth finished proposed training as a dental assistant, experience and common sense tell us that a parent’s ability to assist and contribute to their children’s welfare does not end when they reach the age of eighteen or graduate from high school. As the majority recognized in attributing value to Mr. Whitworth’s contributions to the couple’s oldest child who is nineteen, a parent’s ability to contribute to an adult child’s welfare is legally significant to a court’s consideration and an evaluation of need.

The facts and circumstances of this case fit squarely within the parameters of our case law supporting an award of rehabilitative alimony. The parties had a lengthy, twenty-year marriage. Mr. Whitworth was gainfully employed during the marriage. He is currently earning well in excess of $100,000 a year. His monthly income exceeds his expenses by approximately $1,400. He has a credit union account and thrift plan, as well as pension benefits and a stock purchase plan. On the other hand, Ms. Whitworth has no post-high school education or special training. She testified that the parties agreed that she would be a stay-at-home mom. Although Mr. Whitworth disputed that the parties had agreed, it is undisputed that she performed that role for fifteen years. She has had only two jobs since the | parties’ separation, both of which paid near minimum wage. She has no retirement; she has no health insurance. She suffers from numerous health-related issues, including ankylosis spondylosis, fi-bromyalgia, TMJ, hypoglycemia, Bell’s palsy, and she recently suffered a stroke. She now lives in a trailer home on property owned by her parents. The majority’s decision today leaves Ms. Whitworth in likely poverty for the foreseeable future. The decision is particularly unjustified given the likelihood of Ms. Whitworth achieving self-sufficiency within a period of a few years.

Ms. Whitworth’s proposed choice of training and skill development appears well suited for the physical limitations she described. Although her training plan was not as developed as it might have been clearly, some form of education and training is necessary if Ms. Whitworth is to do more than merely survive. The majority stated, “The record does not indicate that appellant’s health would be a major impediment to her finding employment.” This may be true. However, without retraining or further education the record does not support the conclusion that Ms. Whitworth can support herself in a manner even approaching her standard of living during the parties’ twenty-year marriage. In fact, it is extremely unlikely that she will be able to earn more than minimum wage or pay more than minimum child support. Under these facts and circumstances, the trial court clearly erred in failing to award rehabilitative alimony.

| ml would reverse.

      . The concurring opinion makes note of this court’s recent decision in Evtimov v. Milano-va, 2009 Ark. App. 208, 300 S.W.3d 110, stating, “[OJur court recently affirmed a denial of alimony where the circumstances of the requesting spouse were significantly more dire than Ms. Whitworth's.” Regardless of the ultimate circumstances of the requesting spouses, the facts of these two cases were substantially different. Evtimov involved a four-year marriage rather than a twenty-year marriage. Additionally, in Evtimov there was no indication that the requesting spouse had been absent from the workforce for an extended period — fifteen years in this case— while providing child-care services in the home.


author: M. MICHAEL KINARD, Judge.

text:
    2009 Ark. App. 409
    Ketan BULSARA, Individually and as Administrator of the Estate of Simi Bulsara, Deceased, and on Behalf of the Wrongful-Death Beneficiaries of Simi Bulsara, Appellant, v. Julia Mortimer WATKINS, M.D., Appellee.
    No. CA 07-741.
    Court of Appeals of Arkansas.
    May 20, 2009.
    Rehearing Denied July 1, 2009.

      Wilkes & McHugh, P.A., by: Susan Nichols Estes, Deborah Truby Riordan, and Melody Piazza; Little Rock, and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, Greenbrier, for appellant.
    Kutak Rock LLP, by: Tyler McClay and J. Phillip Malcom, Little Rock, for appellee.
   M. MICHAEL KINARD, Judge.

1 Jn this medical-malpractice and wrongful-death case, appellant, Dr. Ketan Bul-sara, appeals from a jury verdict in favor of appellee, Dr. Julia Mortimer Watkins. Dr. Bulsara does not challenge the sufficiency of the evidence. Instead, he argues primarily that the circuit court erred by not disqualifying Dr. Watkins’s attorney. As a remedy, Dr. Bulsara seeks a new trial with different opposing counsel. We find no error and affirm.

On the evening of November 9, 2003, Ms. Nita Bulsara presented at St. Vincent Doctors Hospital in the early stages of labor. The obstetrician on call was appel-lee, Dr. Watkins, the partner in practice with Ms. Bulsara’s regular obstetrician, Dr. Rosey|2Seguin. The two doctors practiced as the “Arkansas Women’s Center.” Throughout the evening, St. Vincent nurses kept Dr. Watkins apprised by telephone of Ms. Bulsara’s and the baby’s condition, particularly the baby’s heart-rate decelerations. At 1:40 a.m., Nurse Allison Bratton asked Dr. Watkins to come to the hospital based on concerns expressed by the baby’s father, appellant Dr. Ketan Bulsara, a neurosurgeon. Dr. Watkins arrived within minutes and performed an amnio-infusion procedure, which she believed stabilized the baby’s heart rate. Dr. Watkins left the hospital at 3:00 a.m., and instructed the nurses to call her if necessary. Moments later, the baby’s decelerations dropped to precipitous levels. Nurse Bratton performed several interventions but, unbeknownst to her, the baby continued to be in severe distress. Later that morning, Dr. Seguin arrived at the hospital and noted a lack of fetal activity. At 9:40 a.m. on November 10, 2003, Dr. Se-guin delivered the child stillborn, due to asphyxiation by the umbilical cord.

Upon learning of the stillbirth, Dr. Watkins returned to the hospital to consult with Dr. Seguin. According to the doctors, Dr. Bulsara confronted them in a manner that led them to believe they would need legal counsel. Later that day, Dr. Watkins called attorney Phil Malcom, who had previously represented her and Dr. Seguin. On this occasion, Dr. Watkins asked Mr. Malcom to represent her, Dr. Seguin, and the Arkansas Women’s Center with regard to any claims or litigation that might arise surrounding the stillbirth of the Bulsara baby. Mr. Malcom accepted representation. Thereafter, he communicated with each doctor about the events of November 10, 2003, and gave each doctor legal advice.

|sOn April 19, 2004, Dr. Bulsara filed a medical-malpractice and wrongful-death suit against Dr. Watkins and St. Vincent Doctor’s Hospital. The complaint did not name Dr. Seguin as a defendant. Mr. Malcom answered the complaint on behalf of Dr. Watkins, and he continued to act as attorney for Dr. Seguin and the Arkansas Women’s Center.

In August 2004, Dr. Bulsara’s attorneys attempted to schedule a meeting with Dr. Seguin. Dr. Seguin relayed the meeting request to Mr. Malcom, and he informed Dr. Bulsara’s attorneys that he objected to their meeting with his client, Dr. Seguin, outside of his presence. This prompted a letter from Dr. Bulsara’s attorney, Ms. Melody Piazza, asserting that Mr. Mal-com’s communications with Dr. Seguin constituted improper, ex parte contact with an opposing party’s treating physician, in violation of Ark. R. Civ. P. 35(c)(2) and Ark. R. Evid. 503(d)(3)(B). Ms. Piazza threatened to seek sanctions against Mr. Malcom unless he agreed to, among other things, turn over notes of his conversations with Dr. Seguin and no longer meet with Dr. Seguin outside of formal discovery. Mr. Malcom declined Ms. Piazza’s requests, stating that he had been hired prior to the commencement of the lawsuit to represent both doctors.

On April 15, 2005, Dr. Bulsara filed a Motion for Withdrawal of Opposing Counsel, for Sanctions and to Prohibit Further Unauthorized, Informal, Ex Parte Contact with Plaintiffs Non-Party Treating Physician, in which he requested that the circuit court disqualify Mr. Malcom from representing “any treating physician or party to this case,” citing Mr. Malcom’s ex parte contact with Dr. Seguin. Mr. Malcom responded that his | representation of Dr. Seguin and their ensuing confidential communications pre-dated Dr. Bulsara’s lawsuit and were undertaken in response to a credible threat of litigation. Mr. Malcom also pointed out that Dr. Seguin and the Arkansas Women’s Center remained vulnerable to suit because the statute of limitations had not yet run as to them. The circuit court denied Dr. Bulsara’s motion. Mr. Malcom continued to represent Dr. Watkins as a defendant and to represent Dr. Seguin and the Arkansas Women’s Center as potential defendants.

In November 2005, Dr. Bulsara added the Arkansas Women’s Center as a defendant, which Mr. Malcom had foreseen as a possibility. The amended complaint alleged that the Center was negligent in various respects and that Drs. Watkins and Seguin provided health care to Mrs. Bulsara and the baby in their capacity as the Center’s “members, agents, partners, and/or employees.” Mr. Malcom answered on behalf of the Arkansas Women’s Center, but Dr. Bulsara dismissed the Center as a defendant prior to trial. Thereafter, Mr. Malcom served as Dr. Watkins’s attorney through nine days of trial in October and November 2006.

On appeal, Dr. Bulsara contends that Mr. Malcom’s contact with Dr. Seguin infringed on the Bulsaras’ physician-patient privilege and violated Arkansas’s ban on ex Uparte communications with an opposing party’s treating physician. At the heart of Dr. Bulsara’s argument is Ark. R. Evid. 503(d)(3)(B), which reads:

Any informal, ex parte contact or communication with the patient’s physician or psychotherapist is prohibited, unless the patient expressly consents. The patient shall not be required, by order of court or otherwise, to authorize any communication with the physician or psychotherapist other than (i) the furnishing of medical records, and (ii) communications in the context of formal discovery procedures.

Arkansas Rule of Civil Procedure 35(c)(2) contains similar language. Dr. Bulsara correctly points out that our supreme court has interpreted Rule 503(d)(3)(B) to prohibit a defense attorney’s ex parte communication with a plaintiffs treating physician in the absence of the plaintiffs consent. See Kraemer v. Patterson, 342 Ark. 481, 29 S.W.3d 684 (2000). Here, it is undisputed that Mr. Malcom communicated with the Bulsaras’ treating physician, Dr. Seguin, without the Bulsaras’ consent. Even so, as we will explain, we disagree with Dr. Bulsara’s argument that the circuit court should have disqualified Mr. Malcom based on those communications.

We begin with a discussion of physician-patient privilege. A patient has the privilege to refuse to disclose, and to prevent any other person from disclosing, his or her medical records or confidential communications made for the purpose of diagnosis or treatment of the person’s physical, | „mental, or emotional condition. Ark. R. Evid. 503(b). Unquestionably, society has an interest in safeguarding the unique and confidential nature of the physician-patient relationship. See Harlan v. Lewis, 141 F.R.D. 107 (E.D.Ark.1992), aff'd 982 F.2d 1255 (8th Cir.1993). However, when a patient relies on his or her physical, mental, or emotional condition as an element of a claim — for instance, a claim that a physician has committed malpractice — no privilege exists as to medical records or communications relevant to the claim. See Ark. R. Evid. 503(d)(3)(A); Ark. R. Civ. P. 35(c)(1); Harlan, supra. In the present case, Dr. Bulsara made threats and accusations against Drs. Watkins and Seguin on the day that the stillbirth occurred, essentially asserting a claim of medical malpractice against them. At that point, the Bulsaras’ relationship with both doctors turned adversarial. The physician-patient privilege was waived, and the doctors — having every reason to believe they would be named in a malpractice suit— understandably sought legal representation from Mr. Malcom. At that point, another closely-guarded relationship was established' — -that of attorney and client.

However, even when a party waives the physician-patient privilege, Arkansas law limits a defense attorney’s access to a plaintiffs physician and requires that the attorney obtain relevant information from the physician through formal discovery rather than through informal, ex parte communications. See Ark. R. Evid. 503(d)(3)(B); Ark. R. Civ. P. 35(c)(2); Harlan, supra. Applying this rule, courts in Arkansas have sanctioned a defense attorney who tried to dissuade a plaintiffs treating physicians from testifying for or cooperating with the plaintiff, Harlan, supra, and have ruled that a defense attorney may not contact a plaintiffs treating physician after suit has been filed to inquire about hiring the physician as an expert witness. Kraemer, supra. Dr. Bulsara relies on these cases for reversal, but they are markedly different from the case at bar.

17From the facts presented here, it is apparent that Mr. Malcom engaged in no “impermissible and unethical conduct” as did the attorney in Harlan; nor did Mr. Malcom seek out the plaintiffs physician to serve his own purposes, as occurred in both Harlan and Kraemer. Here, Dr. Se-guin initiated contact with Mr. Malcom. Mr. Malcom’s subsequent advice to and communications with Dr. Seguin were in the service of Dr. Seguin and arose in the context of their attorney-client relationship. Just as importantly, if not more so, Mr. Malcom’s representation of Dr. Se-guin — and his resulting communications with her — were occasioned by the Bulsar-as’ casting blame on Dr. Seguin and her partner, Dr. Watkins, for the stillborn child. For reasons known only to Dr. Bulsara, Dr. Watkins and the Arkansas Women’s Center were named as defendants; their close associate, Dr. Seguin, was not sued. In this antagonistic situation, it is difficult to see how Mr. Malcom’s communications with Dr. Seguin were detrimental to the Bulsaras’ physician-patient relationship.

We also observe that Dr. Bulsara seeks an extreme remedy in this case— disqualification of the attorney who represented Dr. Watkins literally from day one of these events. Disqualification is a drastic measure to be imposed only where clearly required by the circumstances. Weigel v. Farmers Ins. Co., 356 Ark. 617, 158 S.W.3d 147 (2004). We review a circuit court’s decision regarding attorney disqualification for an abuse of discretion. Id. A court abuses its discretion when it acts improvidently, thoughtlessly, or without due consideration. See Chapman v. Ford Motor Co., 368 Ark. 328, 245 S.W.3d 123 (2006). Given the circumstances of this ease, and the fact that the experienced circuit court judge observed the attorneys and the parties throughout this lengthy litigation, we cannot say that the judge acted thoughtlessly or improvidently in refusing to disqualify Mr. Malcom. Furthermore, Dr. Bulsara’s citation to Baylaender v. Method, 230 Ill.App.3d 610, 171 Ill.Dec. 797, 594 N.E.2d 1317 (1992), a case with a similar fact situation, is not availing. The Baylaender court barred the non-party physician from testifying for the defense. The court did not take the extreme measure of prohibiting the attorney from continuing to represent the defendant doctor.

In this same vein, Dr. Bulsara argues that Mr. Malcom should have been disqualified because his communications with Dr. Seguin violated the Health Insurance Portability and Accountability Act (HIPAA). Dr. Bulsara raised this issue for the first time in his motion for a new trial to the trial court. Because the issue was not raised until the motion for a new trial, it was not preserved for our review, and we will not address the issue on appeal. See Switzer v. Shelter Mut. Ins. Co., 362 Ark. 419, 208 S.W.3d 792 (2005).

Dr. Bulsara argues further that Mr. Malcom should have been disqualified because he could not ethically have represented both Drs. Watkins and Seguin had they each been named as defendants. On this point, it is sufficient to say that Drs. Watkins and Seguin were not named as eo-defendants.

Dr. Bulsara also claims that Mr. Malcom had a conflict of interest by asserting fault against a client of his law Arm, St. Vincent, and that Mr. Malcom hired an expert witness, Dr. Charles Phillips, who had previously consulted with Dr. Bulsara’s former attorney. The ¡¡,record demonstrates that St. Vincent ably argued its own request to have Mr. Malcom disqualified, prior to settling its case with the Bulsaras, and that the circuit court disqualified Dr. Charles Phillips as an expert.

Dr. Bulsara’s remaining arguments are collected in his brief under the heading “Further Indiscretions.” He cites three instances in which Mr. Malcom allegedly “mis-managed” the litigation. First, Dr. Bulsara argues that Mr. Malcom elicited testimony from defense expert Dr. David McKelvey that the Bulsaras had settled with a third party. The exchange between Mr. Malcom and Dr. McKelvey was as follows:

Mr. Malcom: Dr. McKelvey, no matter how many times it’s pitched at you, you can tell the jury, that tracing [from the heart-rate monitor] reflects the result of an amnio-infusion working, is that right, sir?
DR. MoKelvey: There’s no question about it. This amnio-infusion did what it was supposed to do. There’s also no question about shortly after Julia Watkins left, this baby went bad pretty quick. And, there was a tragedy here, because this baby died, and we lost this baby. Was there malpractice on Julia Watkins’ fault? There was not. Why are we here? Why are you here? Why am I here? Why are all these people here? Why are you here? Basically, it’s trying to find the answer; blame. What else— why else are we here? It’s not over money; there’s already been a settlement in this case.
Dr. Bulsara’s Counsel: Objection, Your Honor.
Court-. Sustained.

| mThis transcription dispels the notion that Mr. Malcom elicited Dr. McKelvey’s reference to settlement. Mr. Malcom inquired about Dr. Watkins’s use of the am-nio-infusion procedure, hardly an invitation to broach the topic of settlement. Furthermore, Dr. Bulsara’s objection to Dr. McKelvey’s testimony was sustained, and Dr. Bulsara requested no other relief. When the circuit judge mentioned Dr. McKelvey’s reference to settlement during a subsequent conference on jury instructions, one of Dr. Bulsara’s attorneys stated, “the court should do nothing about it at this time. There’s no curative instruction. All that would do is reinforce it.” Another of the Bulsaras’ attorneys stated that she had not heard Dr. McKelvey’s reference to settlement and that “there can’t be a mistrial because I didn’t hear him say it.” Yet, on appeal, Dr. Bulsara argues that the circuit court should have declared a mistrial. This argument is waived. A motion for a mistrial must be made at the first opportunity. Union Pac. R.R. Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004). Here, Dr. Bulsara not only failed to move for a mistrial at the first opportunity, he expressly rejected it as a means of relief.

Next, Dr. Bulsara argues that the circuit court should have disqualified Dr. McKel-vey as a witness. Dr. Bulsara contends that he was prevented from learning the grounds for Dr. McKelvey’s expert opinion, as required by Ark. R. Civ. P. 26(a)(4)(A) and Bull v. Brantner, 10 Ark. App. 229, 662 S.W.2d 476 (1984). We disagree. Prior to being retained as a defense expert, Dr. McKelvey investigated a State Medical Board complaint filed by Dr. Bulsara against Dr. Watkins in late 2003 or early 2004. When Dr. Bulsara took 111Dr. McKelvey’s deposition in 2006, Dr. McKelvey declined to describe what information he considered in conducting the Board investigation, citing the privileges conferred by Arkansas statutes. See Ark. Code Ann. § 20-9-503 (Repl.2005) (generally providing that proceedings and records of a peer review committee shall not be subject to discovery); Ark.Code Ann. § 16-46-105 (Repl.1999) (generally providing that the proceedings, minutes, records, or reports of medical review committees shall not be subject to discovery). Dr. McKelvey did say that he spoke to Nurse Allison Bratton during the Board investigation and that her testimony in the present ease — that she called Dr. Watkins at home on the night of November 10, 2003, and that Dr. Watkins responded in a timely manner — was consistent with what she said during the Board investigation. Otherwise, Dr. McKelvey stated that, in forming his opinion that Dr. Watkins met the standard of care in this case, he did not rely on information he obtained in his Board investigation. Rather, he said that he reviewed numerous deposition summaries and exhibits, heart-monitor strips, clinic records, and the policies and procedures of the Arkansas Women’s Center. Dr. McKelvey therefore disclosed the underlying data on which he based his opinion, and we see no ground for reversal.

Dr. Bulsara also argues that Mr. Mal-com, in hiring Dr. McKelvey, chose a witness “who spoke with the perceived authority of the Medical Board behind him.” However, the record, as abstracted, reveals no attempt by Mr. Malcom to bolster Dr. McKelvey’s testimony in this manner. Dr. Bulsara further asserts that Mr. Mal-com was privy to confidential information that Dr. McKelvey obtained during his investigation. Here, we note |12Pr. McKel-vey’s deposition testimony that he did not relate his findings from the Board investigation to Mr. Malcom. Under these circumstances, we find no abuse of discretion in the circuit court’s refusal to disqualify Dr. McKelvey. See Prop. Owners Improvement Dist. No. 24.7 v. Williford) 40 Ark.App. 172, 843 S.W.2d 862 (1992) (applying the abuse-of-discretion standard in reviewing a circuit court’s decision on whether to strike an expert witness).

Dr. Bulsara’s final argument concerns the circuit court’s in limine ruling that the parties could mention Dr. McKelvey’s investigation only to the extent that Dr. Bulsara had filed a complaint against Dr. Watkins with the State Medical Board. Dr. Bulsara argues that Mr. Malcom violated that ruling by inquiring of Nurse Allison Bratton if Dr. McKelvey had ever called her and what Dr. McKelvey had asked her. Dr. Bulsara objected to Mr. Malcom’s line of questioning and asked that the question be struck and the jury be instructed to disregard it. The court did as Dr. Bulsara requested. Dr. Bulsara therefore received all of the relief he requested from the circuit court and has no basis for complaint on appeal. See Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

Based on the foregoing, we affirm the circuit court’s rulings in this case and the judgment in favor of Dr. Julia Watkins.

Affirmed.

HART and GLADWIN, JJ., agree.

      . The Arkansas Supreme Court denied Dr. Bulsara’s motion to certify this case.

      . Dr. Bulsara also settled with St. Vincent prior to trial.


text:
    2009 Ark. App. 431
    Michael Spiro CORA, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-633.
    Court of Appeals of Arkansas.
    May 27, 2009.

      Dyer and Jones, by: F. Parker Jones III, Benton, for appellant.
    Dustin McDaniel, Att’y Gen., by: Deborah Nolan Gore, Ass’t Att’y Gen., for ap-pellee.
   M. MICHAEL KINARD, Judge.

| Appellant, Michael Spiro Cora, appeals from his conviction on a charge of theft of property lost, mislaid, or mistakenly delivered. On appeal, appellant argues that the trial court erred in denying his motions for directed verdict. We affirm.

During the relevant time period, appellant was the sole owner of a business known as Michael Cora Marine & ATV, Inc. Audie Prewitt testified that he purchased a boat from Cora Marine in August 2005. Prewitt initially arranged to have approximately $40,000 of the purchase price financed through Riverland Credit Union. When the loan proceeds were not processed when promised, Prewitt contacted Riverland. He was informed that Hurricane Katrina had done extensive damage to Riverland’s main New Orleans branch. Prewitt was advised by Riverland to procure alternate financing. Prewitt arranged financing through Simmons First National Bank and tendered payment to Cora Marine. Prewitt |2testitled that, after he arranged financing with Simmons, he advised appellant not to accept payment from Riverland.

After payment was made to Cora Marine by Prewitt, Riverland mistakenly sent a check to Mike Cora Marine & ATV, Inc., which was deposited into the business’s account and used to pay expenses, according to the testimony of appellant. Appellant testified that the check was deposited by his assistant, and that he was personally not aware of the double payment until he was notified by Prewitt. After appellant was notified of the double payment, he issued a check to Prewitt for the amount mistakenly paid by Riverland. Before Prewitt could deposit the check, appellant stopped payment on the check. Appellant testified that he did not know whether he had sufficient funds to cover the check in the account and that an attorney he had consulted regarding business matters had advised him to pay Riverland directly, instead of Prewitt. In March of 2006, both appellant and Mike Cora Marine & ATV, Inc. filed for bankruptcy protection. Appellant testified that, after Prewitt and his spouse later filed a civil action against him, he offered to repay the overpayment in monthly installments, which the Prewitts refused. No additional evidence of any efforts by appellant to repay the overpayment was presented. Following the trial, the trial court, sitting without a jury, found appellant guilty of theft of property. Appellant was sentenced to six years’ probation, with three years supervised and three years unsupervised. Appellant was also ordered to pay restitution to the Prewitts’ account at Riverland.

| ¡¡Appellant’s first point on appeal is that the trial court erred in denying his motions for directed verdict. Because this was a bench trial, appellant’s motions for directed verdict were in reality motions to dismiss. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Tomboli v. State, 100 Ark.App. 355, 268 S.W.3d 918 (2007). We will affirm a trial court’s denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Id.

Appellant was charged with and found guilty of theft of property in violation of Arkansas Code Annotated section 5-36-105 (Repl.2005). Pursuant to section 5-36-105, a person commits theft of property lost, mislaid, or delivered by mistake if the person (1) comes into control of property of another person; (2) retains or disposes of the property when the person knows the property to have been lost, mislaid, or delivered under a mistake as to the identity of the recipient, or as to the nature or amount of the property; and (3) with the purpose of depriving any person having an interest in the property, the person fails to take reasonable measures to restore the property to a person entitled to it. On appeal, as he did in his motions for directed verdict during the trial, appellant argues that the State failed to produce substantial evidence that he came into control of property of another | ¿person and that the State failed to produce substantial evidence that appellant failed to take reasonable measures to restore the property to a person entitled to it with the purpose to deprive one having an interest in the property.

Regarding the issue of control of the funds, appellant argues that the funds were mistakenly given to the corporation, not him, and that he never personally exercised any control over the funds, shielding him from criminal liability. There is currently no case law defining what is meant by the term “control” in section 5-36-105, nor is the term defined in the statute. However, it is a well-established rule of statutory construction that the intent of the legislature must be gleaned from the plain and ordinary meaning of the words used in the statute. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998). Control is defined as “(1) to exercise power or influence over; (2) to regulate or govern.” Black’s Law Dictionary 330 (7th ed.1999).

If one gives the term “control” its common meaning in the statute, it is clear that appellant came into control of the funds. The funds in question were mistakenly paid to Mike Cora Marine & ATV, Inc. Appellant claims that all of the transactions — sale of the boat, negotiation of the check, and control of the money — were performed by the corporation and that appellant was acting in a representative capacity of the company (as an agent) and, therefore, is not personally liable. We disagree.

Appellant was the sole owner of Mike Cora Marine & ATV, Inc., making the business his corporate alter-ego. The maxim qui facit per alium, facit per se is as applicable Inhere, in a criminal case, as it is in an equity case. He who acts through another, whether the alium is corporate or natural, acts himself. This is particularly true, as here, where the corporation was the alter ego of appellant. Appellant had the authority to repay the funds since he personally issued a check to repay the Prewitts and, further, exercised authority over the funds by personally authorizing his bank to later stop payment on the check. It is also notable that the bank complied with appellant’s personal instruction to stop payment on the check. The record establishes that appellant, not the business, personally determined whether the funds were returned to their rightful owner or not. We hold that there is substantial evidence in the record to support a finding that appellant came into control of the funds for the purposes of the statute.

Appellant testified at the trial that he was aware that the funds in question were not supposed to be paid to him and that he was aware that they were not his rightful property. He does not argue to the contrary on appeal. He does, however, contend that he took reasonable measures to restore the property to its rightful owner and that the State did not produce substantial evidence that he failed to take such steps. As with the term “control,” the statute does not define “reasonable measures,” nor is there any case law that defines the term for the purposes of the statute. Appellant testified that he initially issued a check to return the mistakenly paid funds on which he later stopped payment. Appellant contends that his offer to repay the Prewitts constituted reasonable measures. We do not agree. Appellant testified that he stopped payment on the check because an attorney he consulted [(¡regarding business matters advised him to repay Riverland, not Prewitt. However, there was no evidence produced of any effort by appellant to repay Riverland directly. In addition, the offer of repayment did not come until months after the incident and not until after the Prewitts had begun civil proceedings against appellant. There is no evidence that, prior to the filing of the suit, appellant made any efforts whatsoever to return the funds to their rightful owner. The act of stopping payment on the check, whether or not ill-advised by counsel, was a final act of “control” by appellant which deprived the rightful owner of its money.

Appellant also contends that there was no evidence that he acted “with the purpose of depriving any person having an interest in the property” as is required under the statute. Pursuant to Arkansas Code Annotated section 5-2-202(1) (Repl. 2006), a person acts purposely with respect to his or her conduct when it is the person’s conscious object to engage in conduct of that nature or to cause the result. There is sufficient evidence in this case to infer appellant’s intent from his actions. By failing to repay the money to either the Prewitts or Riverland, appellant clearly intended to deprive the rightful owner of the funds of their use, since the rightful owner cannot use the funds if appellant does not repay them. We hold that the trial court’s findings that appellant failed to take reasonable measures to return the funds, and that appellant acted with the purposeful intent of depriving the victims are supported by substantial evidence.

|7Appellant’s second point on appeal is that the criminal statute under which he was convicted is inapplicable to the facts of this case and that his conviction effectively criminalizes a business failure. Appellant argues that the fact that his business was failing and the fact that he later went into bankruptcy should shield him from liability in this case. Appellant and his business counsel testified that they discussed whether the payment to Prewitt would be considered a “preferential payment” that could be set aside if the business filed for bankruptcy. However, as the State points out in its brief, had the check to Prewitt been allowed to clear when written, it would have cleared well in excess of ninety days prior to the business’s bankruptcy filing, which is the period in which payments to creditors can be considered “preferential payments” subject to the bankruptcy proceeding. Under federal bankruptcy law, the trustee would not have been able to set aside the payment to Prewitt. See 11 U.S.C. § 547 (2000). Therefore, any potential bankruptcy issues do not provide a compelling reason for appellant to have withheld repayment in this case. The mere fact that appellant may have received ill-advised legal advice does not exempt him from prosecution under the state statute. See Atkins v. State, 287 Ark. 445, 701 S.W.2d 109 (1985); see also Simms v. State, 12 Ark.App. 254, 675 S.W.2d 643 (1984).

More importantly, appellant cites to no authority indicating that actions undertaken in anticipation of bankruptcy or as part of a bankruptcy proceeding preclude prosecution under state criminal statutes. In fact, this court has previously indicated that, although a bankruptcy court does have the authority to enjoin a state criminal proceeding, a discharge | fin bankruptcy does not necessarily shield a debtor from prosecution in state court for a criminal offense related to the debt. See Cotnam v. State, 36 Ark.App. 109, 819 S.W.2d 291 (1991). Appellant’s conviction under the statute means that he unlawfully appropriated the property of another. It was appellant’s criminal act of depriving a person of their rightful property that resulted in his conviction, not normal business dealings or any subsequent bankruptcy proceedings.

Affirmed.

VAUGHT, C.J., and BROWN, J., agree.


author: KAREN R. BAKER, Judge.

text:
    2009 Ark. App. 442
    CROWN CUSTOM HOMES, INC., Appellant, v. BUCHANAN SERVICES, INC., Appellee.
    No. CA 09-20.
    Court of Appeals of Arkansas.
    May 27, 2009.

      Nolan, Caddell & Reynolds, P.A., Rogers, by: Bill G. Horton, Fort Smith, for appellant.
    The Mulkey Attorney’s Group, P.A., by: Bruce L. Mulkey; Rogers, and The Kester Law Firm, by: Charles M. Kester and Dawn C. Egan, Fayetteville, for appellee.
   KAREN R. BAKER, Judge.

| Appellant, Crown Custom Homes, Inc., appeals from a decision by the Benton County Circuit Court in favor of appellee, Buchanan Services, Inc., in the amount of $2,100, plus attorney’s fees of $2,000 and costs. Appellant asserts on appeal that the trial court erred in two respects: first, finding that appellant breached a contract, and second, in awarding attorney’s fees. Appellant further asserted that there was no enforceable contract between the two parties and that there was no basis for a quasi-contract or promissory estoppel. We affirm the trial court’s decision.

Appellant, Crown Custom Homes, Inc. (Crown), is a homebuilder. Appellee, Buchanan Services, Inc., provides soil analysis and surveys for builders, real estate companies, and others in the construction industry in Northwest Arkansas. Buchanan and Crown had an ongoing business relationship. Testimony showed that until the transaction |2at issue, Crown had done in excess of $100,000 worth of business with Buchanan.

Crown also participated in construction projects with other home builders. Particularly, Crown was participating in a construction project with Hollis Cunningham of Cunningham Contractors, LLC. During this particular construction project, Jerry Hawkins of Crown introduced Mr. Cunningham to Mr. Buchanan in a meeting that took place at Buchanan’s office. Representatives of all three business entities were present at the meeting.

Following the meeting, a work order was issued and was faxed from Crown’s place of business to Buchanan. Upon receipt, Buchanan began and completed the services pursuant to the work order. Testimony showed that the “original invoices were made to Jerry Hawkins care of Crown Custom Homes,” and the bill for the services was sent to Crown. Crown did not remit payment for the services rendered by Buchanan. In September 2006, Hawkins directed Buchanan’s bookkeeper, Kimberly Snyder, to send the invoice directly to Cunningham. She did, but despite Cunningham’s statement that he had “relayed payment” of $2,000 and that he would send the balance in January 2007, Buchanan never received payment from Cunningham. In March or April 2007, Buchanan sued Cunningham in Missouri for failure to pay. Due to a failure to obtain proper service, the suit was unsuccessful.

Ms. Snyder testified that when a survey was requested, she was typically only aware of the person requesting the survey and not necessarily informed of the name of the person who owned the lots. She first learned of the request for services at issue here when she | .¡received the fax from Crown. She testified as to the customary course of dealing between Crown and Buchanan. For example, during the years of doing business with Crown, she had received other orders from Crown via facsimile. She explained that it was customary for Buchanan to begin the work upon receipt of the faxed request. It was also customary to bill Crown for the services when completed.

She testified that Jerry Hawkins specifically told her that he was not going to pay for the surveys because Cunningham owed him money and he “was not paying any more money for Cunningham lots.” This was the first instance where Crown had not paid an invoice. She based her belief that Crown was responsible for the invoices on the fact that she received a fax from Crown for the job and “that was how every other job had been billed, and [Crown] paid on every other job.” On redirect, Kimberly testified that when the surveys at issue were completed, she called Jerry Hawkins; she did not send the surveys to Cunningham.

Bobby Buchanan of Buchanan Services, Inc., testified that generally, when he has a new customer he has them fill out an order form. From that point on, the transactions were much more casual “by telephone, fax or whatever.” He stated that Jerry Hawkins had always promptly paid his invoices, until the last transaction. Even when Crown did not actually own the lots, when Buchanan received an order from Crown, he completed the work. Like Ms. Snyder, he generally did not know who owned the lots on which he was performing the surveys. On redirect, Buchanan testified that as of the day he met Mr. Cunningham, he did |4not know enough about him to take an order from him, and “Hollis did not make an order.”

Jerry Hawkins testified that he introduced Hollis Cunningham and Bobby Buchanan at a meeting that took place at Buchanan’s office. He testified that the lots at issue were owned not by Crown, but by Hollis Cunningham. It was “clear at the meeting that it was Hollis Cunningham’s work,” and he was only there to advise Cunningham. He denied ordering any lots surveyed or authorizing any work to be done on behalf of Cunningham. He admitted that he had submitted payment for the surveys on three of Cunningham’s lots; however, he stated that it was inadvertent. When he discovered the mistake, he called Ms. Snyder and directed her to credit him for the payment. He also confirmed that he requested that Ms. Snyder send the bill to Mr. Cunningham for the work. He stated that Cunningham owed him approximately $300,000.

At the conclusion of the hearing, the trial court entered a decision in favor of appellee Buchanan, awarding damages in the amount of $2,100, attorney’s fees in the amount of $2,000, and costs. This appeal followed.

In bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Smith v. Eisen, 97 Ark.App. 130, 245 S.W.3d 160 (2006) (citing Anderson v. Stewart, 366 Ark. 203, 234 S.W.3d 295 (2006)). We give due deference to the superior position of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony. Id. Further, it is within the province of the trier of fact to resolve conflicting testimony. Id.

lsThe issue before us is whether there was an agreement between Crown and Buchanan. The essential elements of a contract are (1) competent parties, (2) subject matter, (3) legal consideration, (4) mutual agreement, (5) mutual obligations. Hot Spring County Med. Ctr. v. Arkansas Radiology Affiliates, P.A., 103 Ark.App. 252, 288 S.W.3d 676 (2008) (citing Foundation Telecomm., Inc. v. Moe Studio, Inc., 341 Ark. 231, 16 S.W.3d 531 (2000)). The only element challenged by Crown is the element of mutual agreement.

In attempting to discern the real character of a transaction, the trial court should consider all of the written and oral evidence and focus on the intent of the parties in the light of all attendant circumstances. Smith v. Eisen, 97 Ark.App. 130, 245 S.W.3d 160 (2006) (citing Bright v. Gass, 38 Ark.App. 71, 831 S.W.2d 149 (1992)). In carrying out the true intent of the parties, the trial court properly looks beyond the mere form in which the transaction was clothed and considers all the facts and circumstances of the transaction, the conduct of the parties, and their relations to one another and to the subject matter. Id.

There can be no doubt that the parties’ prior course of dealing is to be considered in determining whether a tacit but still actual contract comes into existence. Jones v. Donovan, 244 Ark. 474, 426 S.W.2d 390 (1968) (citing Corbin, Contracts, § 97 (1963); Southern Pub. Ass’n v. Clements Paper Co., 139 Tenn. 429, 201 S.W. 745 (1918)). In Jones, the court stated:

Justice Holmes put his finger on the point in Hobbs v. Massasoit Whip Co., 158 Mass. 194, 33 N.E. 495 (1893). There the plaintiff, a trapper, had sent eel skins to the | (¡defendant, a manufacturing company, on four or five occasions. Although there was no contract between the two the defendant had accepted and paid for the skins. The litigation arose when the defendant received another batch of skins and kept them for some time before they were destroyed. In holding that the manufacturer was bound by contract to pay for the skins the court summarized the law in a sentence: “The proposition stands on the general principle that conduct which imports acceptance or assent is acceptance or assent, in the view of the law whatever may have been the actual state of mind of the party.”

Jones, 244 Ark. at 477, 426 S.W.2d at 392. An implied contract is proven by circumstances showing the parties intended to contract or by circumstances showing the general course of dealing between the parties. Steed v. Busby, 268 Ark. 1, 593 S.W.2d 34 (1980).

Whether there was mutual agreement between the parties was a question of fact for the trial judge to determine. Conclusions concerning the true intent of the parties primarily involve issues of fact, and the trial court’s decision on such cases will not be reversed unless they are clearly erroneous. Smith v. Eisen, supra. Where the issue is one of the credibility of interested parties whose testimony is in direct conflict, we defer to the trial judge’s decision. Taylor v.George, 92 Ark.App. 264, 212 S.W.3d 17 (2005) (citing Estate of Sabbs v. Cole, 57 Ark.App. 179, 944 S.W.2d 123 (1997)).

Here, the evidence established that the parties had done a significant amount of business with one another in the recent past. Testimony further showed that it was customary for the parties to send work orders via facsimile, and likewise it was customary for Buchanan to complete the work upon receipt of the fax from Crown. It was undisputed that Buchanan’s office informed Crown when the work was complete and sent Crown an invoice. Moreover, Mr. Buchanan testified that he was not well acquainted with Mr. Cunningham 17and would not have taken an order from him. The reason the order was taken via facsimile was because it was from Crown, with whom Buchanan had done a significant amount of business in the past. The trial court determined that the services would not have been performed by Buchanan but for the prior course of dealing between the parties. This finding was evidenced by the fax sent by Crown to Buchanan indicating that the survey was needed “asap” on one lot and requesting surveys on the other lots as well. Giving proper deference to the trial court to determine the credibility of witnesses, we hold that the evidence supports the trial court’s finding, and thus, it was not clearly erroneous.

Crown also asserts that the writing was insufficient to satisfy the Statute of Frauds because the basis of this contractual claim rested upon an unsigned, faxed document that contained an inadequate description of “what was to be done and who was to pay, and how much was to be paid.” Arkansas Code Annotated section 4-59-101 (Repl.2001) states in pertinent part:

(a) Unless the agreement, promise, or contract, or some memorandum or note thereof, upon which an action is brought is made in writing and signed by the party to be charged therewith, or signed by some other person properly authorized by the person sought to be charged, no action shall be brought to charge any:
(6) Person upon any contract, promise, or agreement that is not to be performed within one (1) year from the making of the contract, promise, or agreement.
(b) No promise to pay a debt or obligation which has been discharged in bankruptcy shall be valid unless the promise is in writing.
|s(c) No action may be maintained to charge any person upon any promise made after full age to pay any debt contracted during infancy, unless the promise or ratification is made by some writing signed by the party to be charged with the promise or ratification. (d)(1) No action may be maintained by or against any person or entity on any agreement to extend credit or to renew or modify existing credit in an amount greater than ten thousand dollars ($10,-000) or to make any other accommodation relating to such credit, unless the agreement is in writing and is signed by the party to be charged with the agreement, or the duly authorized agent of such party.

In support, Crown cites to Van Dyke v. Glover, 326 Ark. 736, 934 S.W.2d 204 (1996). However, Van Dyke can be distinguished from the case at hand, as the contract at issue in Van Dyke was a contract for the sale of real estate. Subsection (6) of Ark.Code Ann. § 4-59-101 is the only section that Crown argues applies. As mentioned above, subsection (6) pertains to any contract, promise, or agreement that is not to be performed within one (1) year from the making of the contract, promise, or agreement. Our supreme court has stated that a contract is not within the provisions of the Statute of Frauds where the proof demonstrates that it was capable of performance within one year, even if there was a possibility or even a probability that it might require a longer time. Township Builders, Inc. v. Kraus Constr. Co., 286 Ark. 487, 696 S.W.2d 308 (1985); Johnson v. Harrywell, Inc., 47 Ark.App. 61, 885 S.W.2d 25 (1994). The contract at hand was clearly capable of being performed within one year. The surveys were ordered on January 20, 2006; the work was completed; and the invoice for the work was sent to Crown on April 17, 2006. Moreover, it is clear that a short time frame for completion of the work was anticipated, as Crown’s request for the surveys stated that the survey needed to be performed on one particular lot |9“asap.” Because the contract was, in fact, capable of being performed within one year, the Statute of Frauds is inapplicable.

In addition, Crown alleges that there was no account stated, and even if there was, it was entitled to prove that the partial payment for the survey done on two of the lots at issue was a mistake. An “account stated” has been defined as an account balanced and rendered with an assent to the balance, express or implied. Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S.W.2d 881 (1956); Brown v. Southern Grocery Co., 168 Ark. 547, 271 S.W. 342 (1925). We have also held that an account stated is only prima facie correct, and may be impeached for fraud, mistake, or error. Id. (citing Drake v. Howell, 177 Ark. 1156, 9 S.W.2d 565 (1928)). The only evidence presented at trial to this effect was that Crown had “accidentally paid for some of the lots” at ■issue. Mr. Hawkins testified that when he discovered the mistake, he contacted Ms. Snyder and asked her to credit his account. He also informed her that she should bill Cunningham for the surveys on those lots. We conclude that the evidence failed to show any dispute in the amount of the invoice, a mistake, or that Crown was responsible for anything less than the amount on the invoice.

Finally, Crown alleges that the trial court erred in awarding fees that were “nearly the sum of the judgment.” It is well settled that under Arkansas law, attorney’s fees are awarded Imonly when expressly authorized by a statute or rule. Millwood-RAB Marketing, Inc. v. Blackburn, 95 Ark.App. 253, 236 S.W.3d 551 (2006) (citing Boatmen’s Trust Co. of Ark. v. Buchbinder, 343 Ark. 1, 32 S.W.3d 466 (2000)). Buchanan sought fees pursuant to Arkansas Code Annotated section 16-22-308 (Repl.1999), which states:

In any civil action to recover on an open account, statement of account, account stated, promissory note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or services, or breach of contract, unless otherwise provided by law or the contract which is the subject matter of the action, the prevailing party may be allowed a reasonable attorney’s fee to be assessed by the court and collected as costs.

In awarding fees under the statute concerning attorney’s fees in contract cases, the trial court has broad discretion on whether to award fees, and his decision will not be reversed absent an abuse of discretion. First United Bank v. Phase II, 347 Ark. 879, 69 S.W.3d 33 (2002); Taylor, supra. Aternatively, Crown argues that the fee should be “substantially reduced.” However, the amount of fees awarded is also discretionary and will be reversed only if there was an abuse of discretion. Millwood-RAB Marketing, supra.

Our supreme court has often observed that there is no fixed formula in determining reasonable attorney’s fees. Phi Kappa Tau Housing Corp. v. Wengent, 350 Ark. 335, 86 S.W.3d 856 (2002) (citing Newcourt Fin., Inc. v. Canal Ins. Co., 341 Ark. 452, 17 S.W.3d 83 (2000) (per curiam); Chrisco v. Sun Indus., Inc., 304 Ark. 227, 800 S.W.2d 717 (1990)). However, a court should be guided in that determination by the following long-recognized factors: (1) the experience and ability of the attorney; (2) the time and labor required to perform the service properly; (3) the amount in controversy and the result obtained in the |n case; (4) the novelty and difficulty of the issues involved; (5) the fee customarily charged for similar services in the local area; (6) whether the fee is fixed or contingent; (7) the time limitations imposed upon the client in the circumstances; (8) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney. Id. Due to the trial judge’s intimate acquaintance with the record and the quality of service rendered, we recognize the superior perspective of the trial judge in assessing the applicable factors. Id.

Here, the trial court awarded $2,000 in attorney’s fees to Buchanan. We cannot conclude that the $2,000 fee is unreasonable merely because the fee was nearly the sum of the judgment. Thus, we cannot find that the trial court abused its discretion in awarding the fee.

Affirmed.

ROBBINS, J., agrees.

HART, J., concurs.

      . We note that Crown also presents the following argument: that there was no basis for recovery under a quasi-contract theory or promissory estoppel. However, a review of the record indicates that Buchanan recovered only under contract theory, and not quasi-contract or promissory estoppel, thus we do not address this argument.


author: JOHN MAUZY PITTMAN, Judge.

text:
    2009 Ark. App. 425
    Demetrius HEARD, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 09-36.
    Court of Appeals of Arkansas.
    May 27, 2009.

      Hancock, Lane & Barrett, by: Jonathan T. Lane, Little Rock, for appellant.
    Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
   JOHN MAUZY PITTMAN, Judge.

_JjThis is an appeal from a conviction of aggravated robbery. It is undisputed that appellant, brandishing a toy gun, demanded that the victim return two dollars that he owed the appellant. The victim admitted that he did owe appellant the two dollars. On appeal, appellant argues that his actions do not constitute the crime of aggravated robbery because, since the money was admittedly his, he lacked the requisite intent to commit a theft. We agree, and we reverse and dismiss.

Substantial evidence that the defendant acted with the purpose of committing theft is necessary to support an aggravated-robbery conviction. A person who commits robbery while representing that he is armed with a deadly weapon commits aggravated robbery. Ark.Code Ann. § 5-12-103(a)(2) (Repl.2006). Robbery is committed when a person employs or threatens to immediately employ physical force with the purpose of committing theft. |2Ark.Code Ann. § 5-12-10(a) (Repl.2006). Theft is taking the property of another person with the purpose of depriving the owner of that property. Ark. Code Ann. § 5-36-103(a)(l) (Repl.2006).

The crucial question in this case is whether the prosecution presented substantial evidence to show that the two dollars was “the property of another person.” In Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940), the Arkansas Supreme Court discussed earlier case law addressing the question of whether property was “the property of another” so as to support a conviction of robbery:

In the case of Rugless v. State, 97 Ark. 152, 133 S.W. 600 [(1911)], the headnote reads as follows: “A conviction of robbery will not be sustained by evidence that the taking was accompanied by putting the owner in fear, but that the taking was in the presence of others under claim of title.” It was so held in this Rugless case upon the authority of the case of Brown v. State, 28 Ark. 126 [ (1873) ], in which the facts were as follows. Brown took from the possession of Frank two bales of cotton the title to which he claimed just as Frank was about to have them loaded on a steamboat for shipment. He did this by brandishing his pistol and declaring that he would shoot any one who touched the cotton. In reversing a judgment finding Brown guilty of robbery, the court said that, while Brown’s conduct in taking possession of the cotton by force was a violation of the law, it did not constitute the crime of robbery, inasmuch as he had taken possession of the cotton under a claim of title.

Davidson, 200 Ark. at 499, 139 S.W.2d at 411.

Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001). Here, appellant expressly argued below that, although his action could have been found to be in | .¡violation of the law, it was not robbery because the property taken was his own. Viewing the evidence in the light most favorable to the State, the only evidence of ownership in this case consisted of the victim’s admission that he “owed” appellant the money, a term that embraces a variety of legal relationships ranging from installment payments for debt to restitution for stolen property. In effect, the victim in this case conceded that appellant had a right to the money without asserting any right of his own. In light of this admission, and because there was no testimony that appellant loaned or even knowingly surrendered the two dollars to the victim, we hold that there is no substantial evidence that appellant threatened violence in order to obtain “the property of another.”

Reversed and dismissed.

MARSHALL and HENRY, JJ, agree.


author: Justice SCHRODER. VENTERS, J.,

text:
    Larry Thomas JONES and Gerald Henley, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2007-SC-000922-DG.
    Supreme Court of Kentucky.
    April 22, 2010.
    As Modified on Denial of Rehearing Sept. 23, 2010.
    Donald H. Morehead, Louisville, KY, Jamesa J. Drake, Assistant Public Advocate, Frankfort, KY, Counsel for Appellants.
    Jack Conway, Attorney General, David W. Barr, Courtney J. Hightower, Assistant Attorneys General, Office Of Attorney General Criminal Appellate Division, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCHRODER.

Before this Court are two consolidated cases from the Court of Appeals with the same issue: whether KRS 532.043(5) violates the separation of powers doctrine of Sections 27 and 28 of the Kentucky Constitution by giving the judicial branch, rather than the executive branch, the power to revoke conditional discharge imposed after a period of incarceration. We agree that the statute violates the separation of powers doctrine by impermissibly conferring an executive power to the judiciary. Therefore, we reverse the revocations in both cases.

KRS 532.043 provides:

(1) In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, 529.100 involving commercial sexual activity, 530.020, 530.064(l)(a), 531.310, or 531.320 shall be subject to a period of conditional discharge following release from:
(a) Incarceration upon expiration of sentence; or
(b) Completion of parole.
(2) The period of conditional discharge shall be five (5) years.
(3) During the period of conditional discharge, the defendant shall:
(a) Be subject to all orders specified by the Department of Corrections; and
(b) Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
(4) Persons under conditional discharge pursuant to this section shall be subject to the supervision of the Division of Probation and Parole.
(5) If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing to the Commonwealth’s attorney in the county of conviction. The Commonwealth’s attorney may petition the court to revoke the defendant’s conditional discharge and reincarcerate the defendant as set forth in KRS 532.060. []
(6) The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15,1998.

Both Appellants served out their initial sentences. Upon release, Appellants were placed on three years conditional discharge and referred to the Division of Probation and Parole for supervision. Both Appellants violated the conditions of conditional discharge and were brought back to their respective sentencing courts for a revocation hearing. Appellants each argued to their trial court that the revocation procedure established by KRS 532.043(5) violated the separation of powers doctrine. Both trial courts disagreed and revoked Appellants’ conditional discharge, and the Court of Appeals affirmed in both cases.

Both Appellants have served out their period of reincarceration, and the issue is now moot. However, this Court has granted discretionary review, realizing that the underlying dispute is one capable of repetition, yet evading review, because of the short duration of conditional discharge and the length of time required to fully litigate the issue.

Before we address the merits of Appellants’ argument, we will address the Commonwealth’s claim that the issue was not preserved because the Attorney General received no notice of this constitutional challenge as required by KRS 418.075. The trial court addressed the constitutionality of the statute without notice and the Court of Appeals addressed the constitutionality without commenting on the failure to give notice. The Court of Appeals held that the statute in question was constitutional and the Appellants filed their motions for discretionary review without the Commonwealth filing a protective cross-motion for discretionary review.

This Court has made it plain that strict compliance with the notification requirement of KRS 418.075 is required, and failure to give notice leaves the constitutional challenge unpreserved. Un-preserved error can be reviewed only for palpable error, which Appellants have requested in this case. Palpable error is that which affects the substantial rights of a party and may be considered by an appellate court on appeal, even though not preserved, if there is a determination that manifest injustice has resulted from the error. In this particular ease, we opine that Appellants have shown manifest injustice, i.e. the probability of a different result so fundamental as to threaten their entitlement to due process of law.

A certain amount of background is necessary on the various alternatives to incarceration: probation, conditional discharge (as that term is used apart from KRS 582.043), parole, and “shock probation.” We address each of these to properly frame the issue of conditional discharge under KRS 532.043.

“Probation, under KRS 533.010, is to be considered [by the court] at the time of sentencing, and starts with the process of probation or conditional discharge, moving toward imprisonment only if certain justifications exist to deny probation or conditional discharge.” With probation, the trial court (judicial branch) first decides on a sentence of imprisonment, but then imposes conditions for release and supervision — in lieu of implementation of incarceration — at sentencing. Probation is the suspension of the imposition of a sentence of incarceration. Supervision, however, is turned over to the Division of Probation and Parole (the executive branch). The terms of probation and supervision are authorized by statute and implemented by the court at the time of sentencing. Upon breach of a condition of probation, the probation officer seeks revocation. A hearing is held before the sentencing court, with appeals proceeding through the judicial branch.

Conditional discharge, as that term is used apart from KRS 532.043, is a judicial function of the trial court at sentencing. It is similar to probation, with the trial court setting the terms and conditions of release at the time of sentencing. But unlike probation, traditional conditional discharge is unsupervised. Upon breach of a condition, the Commonwealth seeks revocation and the trial court conducts the hearing to determine whether revocation is appropriate. Although KRS 532.043 speaks in terms of “conditional discharge,” the statutory scheme is more akin to parole or an extension of parole.

With parole, the Parole Board (executive branch) sets the conditions of release, as well as the terms of supervision, after a prisoner has been sentenced by the court and has begun serving his or her sentence. Parole suspends the execution of a sentence. “Parole recognizes those justifications [for incarceration] existed at sentencing and there now exists a change of circumstances or a rehabilitation of a prisoner.” “[T]he power to grant parole is a purely executive function.” Upon breach of a condition of parole, the parole officer seeks revocation. An administrative hearing is held before the Parole Board. Appeals are then made to the Circuit Court, as with other executive, administrative appeals.

The concept of “shock probation” under KRS 439.265 is an anomaly. It is a legislative creation “which allows the court to reacquire jurisdiction for this one consideration.” For a limited time after sentencing, the sentencing court may “suspend the further execution of the sentence and place the defendant on probation upon terms the court determines.” In Commonwealth v. Williamson, our predecessor court held that the legislative enactment of shock probation did not encroach upon the executive power, because it created only a short, limited extension of the trial court’s jurisdiction. It was reasonable for the legislature to extend the trial court’s jurisdiction for a short period to make a final determination regarding probation.

The statute in question in this case, KRS 532.043, also mixes the roles of the judicial and executive branches of government. Under KRS 532.043, the General Assembly added a period of conditional discharge to the sentence of incarceration of persons convicted of certain offenses. The three-year (now five-year) period of conditional discharge is to be served beginning upon the person’s final release from incarceration or parole. The conditions and supervision of the felony conditional discharge are set by the executive branch. Violations, however, are reported to the judicial branch (the court in the county of conviction) by the Commonwealth Attorney, for revocation (as opposed to an appeal of a decision by the Parole Board). Thus, the statute imposes upon the judiciary the duty to enforce conditions set by the executive branch.

This statutory mixture of the role of the judiciary within the role of the executive branch is fatal to the legislative scheme. Section 27 of the Kentucky Constitution creates three distinct branches of government, and Section 28 precludes one branch from exercising any power belonging to the other branches. Thus, we recognize that the legislature makes the laws, deciding what is a crime and the amount of punishment to impose for violations thereof. The judiciary determines guilt and selects or implements a sentence within the legislative range. The executive branch is vested with the execution of the sentence, including executions, incarceration, parole, and clemency. To this extent only, the three branches have a shared sentencing responsibility.

It is generally recognized that the trial courts have jurisdiction over a defendant’s case for ten days after sentencing, and at any time for clerical errors. In unusual cases, where there exists newly discovered evidence, fraud, or other extraordinary circumstances, a court may reacquire jurisdiction on the theory that the sentence imposed was not a valid sentence. For a short period of time after sentencing, we even allow trial courts to maintain jurisdiction to consider shock probation.

If the trial court imposes an additional sentence at the time of original sentencing, there is no separation of powers issue because “the legislature has the power to designate what is a crime and the sentences for violations thereof.” However, under KRS 582.043(5), the court is given jurisdiction over revocation of conditional discharge after all of the following have occurred: a sentence of incarceration has been imposed, the sentence has become final, the defendant has been transferred to the custody of the Department of Corrections (the executive branch) for execution of the sentence, the defendant has served his or her period of incarceration or has been paroled (at or near the end of the sentence), and the defendant has been released subject to the conditions of the Department of Corrections and supervision by the Division of Probation and Parole.

The General Assembly can, consistent with the separation of powers doctrine, create a form of conditional release with terms and supervision by the executive branch. However, the statutory scheme runs afoul of the separation of powers doctrine when revocation is the responsibility of the judiciary. Once a prisoner is turned over to the Department of Corrections for execution of the sentence, the power to determine the period of incarceration passes to the executive branch. Only on appeal of an administrative action should the judicial branch become involved in the executive branch’s legitimate exercise of its power to execute sentences.

Finally, we note that our ruling is limited to KRS 532.043(5). Only the revocation procedure established by this subsection is unconstitutional. Because subsection (5) is severable from the remainder of the statute, the statute’s other provisions remain in force.

KRS 532.043(5) violates Section 27 and Section 28 of the Kentucky Constitution by impermissibly conferring an executive power to revoke a post-incarceration or post-parole conditional release upon the judiciary. Accordingly, the judgments of the Court of Appeals are reversed, and the cases are remanded to their respective circuit courts for proceedings consistent with this opinion.

All sitting. MINTON, C.J.; ABRAMSON, CUNNINGHAM, and NOBLE, JJ., concur.

VENTERS, J. dissents by separate opinion in which Scott, J., joins.

VENTERS, J.,

dissenting.

I disagree with the majority’s conclusion that KRS 532.043(5) is unconstitutional. Certainly, the concept of a term of release and re-incarceration following the completion of a lengthy prison sentence is a novel and unconventional approach to criminal punishment. But, I find nothing in our Constitution’s separation of powers doctrine that expressly or inherently bars the General Assembly from re-vesting the judicial branch with jurisdiction to adjudicate alleged violations of the kind of conditional discharge created by KRS 532.043. I see nothing in the inherent powers of the executive branch that compels it to adjudicate such violations, or that prohibits the judicial branch from doing so under legislative authorization. I therefore respectfully dissent.

SCOTT, J., joins.

      ."Conditional discharge” under KRS 532.043 is a special form of post-sentence conditional release, which applies only to those convicted of certain sex offenses. It is not to be confused with conditional discharge under KRS Chapter 533, which is imposed in lieu of incarceration.

      . Emphasis added.

      . Prior to 2006, the period of conditional discharge was three years. See 2006 Ky. Acts ch. 182, § 42.

        . See Philpot v. Patton, 837 S.W.2d 491, 493 (Ky.1992); Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658, 661 (Ky.1983); Commonwealth v. Deweese, 141 S.W.3d 372, 375 (Ky.App.2003).

      . Benet v. Commonwealth, 253 S.W.3d 528, 532 (Ky.2008).

      . RCr 10.26.

      . Id.

      . See Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky.2006).

      . Mullins v. Commonwealth, 956 S.W.2d 222, 223 (Ky.App.1997), abrogated on other grounds by Commonwealth v. Merriman, 265 S.W.3d 196 (Ky.2008).

      . Prater v. Commonwealth, 82 S.W.3d 898, 904 (Ky.2002).

      . See KRS 533.030.

      . KRS 533.010(1).

      . KRS 533.020(3); Pedigo v. Commonwealth, 644 S.W.2d 355, 358 (Ky.App.1982).

      . See generally Huggins v. Caldwell, 223 Ky. 468, 3 S.W.2d 1101, 1103 (1928), for a discussion of substance over name.

      . See KRS 439.340.

      . Prater, 82 S.W.3d at 904.

      . Mullins, 956 S.W.2d at 223 (citing KRS 439.340).

      . Prater, 82 S.W.3d at 902 (citing cases so holding).

      . Mullins, 956 S.W.2d at 223.

      . For felonies, not earlier than 30 days nor later than 180 days after defendant begins serving his or her sentence. KRS 439.265(1).

      . Id.

      . 492 S.W.2d 874, 875 (Ky. 1973).

      . Id.

      . KRS 532.043(3) and (4).

      . KRS 532.043(5).

      . Wilfong v. Commonwealth, 175 S.W.3d 84, 92 (Ky.App.2004). Wilfong dealt with the constitutionality of the additional period of conditional discharge and the conditions thereof in KRS 532.043. The case did not address the issue of revocation, which is the issue in the instant case.

      . Id.

      . See Mistretta v.United States, 488 U.S. 361, 364-65, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (discussing the similar shared sentencing responsibility in the federal system).

      . See RCr 10.02(2).

      . CR 60.01.

      . CR 60.02.

      . See Commonwealth v. Gross, 936 S.W.2d 85, 88 (Ky.1996) (applying to criminal cases the civil case analysis of Potter v. Eli Lilly & Co., 926 S.W.2d 449 (Ky.1996)).

      . KRS 439.265; KRS 439.267 (for misdemeanors).

      . Mullins, 956 S.W.2d at 223.

      . See Prater, 82 S.W.3d at 903-04.

      . See KRS 446.090 (Severability).