author: PAUL E. DANIELSON, Justice.

text:
    2009 Ark. 241
    Darrell JOHNSON & A. Jan Thomas, Jr., Bankruptcy Trustee in the Matter of Darrell W. Johnson and Janet K. Johnson, Debtors, Petitioners, v. ROCKWELL AUTOMATION, INC.; Consolidated Electrical Distributors, Inc., d/b/a Keathley-Patterson Electric; & John Does 1-5, Respondents.
    No. 08-1009.
    Supreme Court of Arkansas.
    April 30, 2009.

      McMath Woods, P.A., by: James Bruce McMath, Little Rock, and Neil Chamber-lin, Jacksonville, for petitioners.
    Watts, Donovan & Tilley, P.A., by: David M. Donovan and Staci Dumas Carson, Little Rock, for respondents.
    Jeffrey R. White, Center for Constitutional Litigation, P.C., and Ralph Cloar, for amicus curiae American Association for Justice.
    Shook, Hardy & Bacon, L.L.P., by: Mark A. Behrens, and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: M. Samuel Jones, III, Little Rock, for amici curiae American Tort Reform Association, Chamber of Commerce of the United States of America, National Association of Manufacturers, American Insurance Association, Property Casualty Insurers Association of America, National Association of Mutual Insurance Companies, American Chemistry Council, American Petroleum Institute, American Health Care Association and the National Center for Assisted Living, Pharmaceutical Research and Manufacturers of America, American Trucking Associations, and Association of American Railroads.
    Wilkes & McHugh, P.A., by: Susan Nichols Estes and David L. Eanes, Jr., Little Rock, for amicus curiae Arkansas Advocates for Nursing Home Residents.
    Brian G. Brooks, for amicus curiae Arkansas Trial Lawyers Association.
    Bassett Law Firm, by: Woody Bassett, Fayetteville; Atchley, Russell, Waldrop & Hlavinka, LLP, by: Alan Harrel; Shackle-ford, Phillips, & Ratcliff, P.A., by: Dennis Shackleford, El Dorado; and Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Nicholas Thompson, Little Rock, for amici curiae Meek Manufacturing Company, Inc.; Fed Ex Freight East, Inc.; E.C. Barton & Company; Star Transportation; SeaArk Marine; Pinnacle Investments; Mitchell’s Nursing Home; Yarnell’s Ice Cream Co.; Cooper Tire & Rubber Company; The Committee to Save Arkansas Jobs, Inc.; and Arkansas Healthcare Association.
    Law Office of David Couch, by: David A. Couch, for amicus curiae National Citizen’s Coalition for Nursing Home Reform.
    Leslie Brueckner, Public Justice, P.C., and Cauley Bowman Carney & Williams, PLLC, by: Hank Bates, Little Rock, for amicus curiae Public Justice, P.C.
   PAUL E. DANIELSON, Justice.

11 This case involves two questions of law certified to this court by the United States District Court for the Eastern District of Arkansas in accordance with Arkansas Supreme Court Rule 6-8 (2008) and accepted by this court on September 11, 2008. See Johnson v. Rockwell Automation, Inc., 374 Ark. 217, 286 S.W.3d 726 (2008).

The questions certified are the following:

1. Under the facts of this case, whether the provisions of Act 649 of 2003, including, but not limited to those codified at Ark.Code Ann. § 16-⅛55-202,2 that require a fact finder to consider or assess the negligence or fault of nonparties, violate the Arkansas Constitution, when considered along with the modification of “joint and several” liability in the same act, codified at Ark.Code Ann. § 16-55-201.
2. Under the facts of this case, whether the provisions of Act 649 of 2003, including, but not limited to those codified at Ark.Code Ann. § 16-55-212(b), that addresses evidence of damages for the costs of necessary medical care, treatment, or services, violate the Arkansas Constitution.

As to the first question, we conclude that the answer is yes, Ark.Code Ann. § 16-55-202 is unconstitutional. As to the second question, we conclude that the answer is yes, Ark.Code Ann. § 16-55-212(b) is unconstitutional.

According to the district court’s order, the certified questions arise from a complaint filed by petitioner Darrell Johnson alleging that on or about February 24, 2004, Johnson was injured while working as a control systems mechanic for Eastman Chemical Company. The district court’s order reveals the following facts. At the time of the incident, Johnson was working on a product referred to by Johnson and his coworkers as an Allen-Bradley “starter bucket.” The starter bucket was designed, manufactured, and supplied to Eastman by the respondent Rockwell Automation, Inc.

Petitioners alleged before the district court that a safety interlock on the starter bucket was designed, manufactured, and supplied in a defective condition, allowing it to labecome electrically powered at a time it should have been prevented from doing so, which was an actual and proximate cause of the incident and Johnson’s injuries. As a result, petitioners alleged that the respondents were strictly liable for Johnson’s injuries; liable for negligently designing, manufacturing, and supplying the starter bucket; and liable for negligently failing to warn about the inherent risks in the design of the starter bucket. However, Rockwell averred that after the starter bucket was supplied to Eastman, Eastman modified it without Rockwell’s knowledge.

In its answer, Rockwell pled that the fault of all parties should be apportioned in accordance with the Civil Justice Reform Act of 2003 (Act 649 of 2003) (CJRA), codified at Ark.Code Ann. §§ 16-55-201 to 16-55-220 (Supp.2003), and, further, that it was entitled to “all defenses” available to it under the CJRA, including “restriction of liability to its percentage share of actual liability” and “the right to name nonparties at fault.” Rockwell also filed a “Notice of Nonparty Fault,” pursuant to Ark. Code Ann. § 16-55-202, designating Eastman as a nonparty at fault for a list of alleged reasons. Petitioners responded that the nonparty-fault provision, section 16-55-202 of the CJRA, violates the Arkansas Constitution under the facts of the case.

Petitioners maintained that Johnson received medical care, treatment, or services, which were necessary due to the incident and resulting injuries. While Johnson’s employee medical plan paid the costs for the medical care, treatment, or services, the amount paid by Lthe plan was less than the full amount of the costs incurred. Therefore, Petitioners sought to present evidence of the full amount of costs necessary for the medical care, treatment, or services received by Johnson, even though that amount was greater than the amount of costs actually paid by Johnson or on behalf of Johnson. However, Respondents sought to enforce the terms of section 16-55 — 212(b) of the CJRA, limiting the evidence to only those costs actually paid by or on behalf of Johnson or which remained unpaid and for which Johnson or any third party was legally responsible. Petitioners argued to the district court that such an interpretation and application of section 16 — 55—212(b) was a limitation on damages in violation of the Arkansas Constitution and offended the separation-of-powers doctrine.

Petitioners and Respondents then filed a joint motion for certification of the above-stated questions to this court on August 11, 2008. On August 21, 2008, the district court granted the motion. We now turn to providing an answer to each of the certified questions.

It is well settled that there is a presumption of validity attending every consideration of a statute’s constitutionality, every act carries a strong presumption of constitutionality, and before an act will be held unconstitutional, the incompatibility between it and the constitution must be clear. See Shipp v. Franklin, 370 Ark. 262, 258 S.W.3d 744 (2007). Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality. See id. The heavy burden of demonstrating the unconstitutionality is upon the one attacking it. See id. Finally, when possible, we will construe a statute so that it is |,-.constitutional. See id.

In determining the constitutionality of the statutes, we look to the rules of statutory construction. When construing a statute, the basic rule is to give effect to the intent of the legislature. See Rose v. Arkansas State Plant Bd., 363 Ark. 281, 213 S.W.3d 607 (2005). Where the language of a statute is plain and unambiguous, we determine legislative intent from the ordinary meaning of the language used. See id. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. See id.

I. ArhCode Ann. § 16-55-202

Petitioners argue that the nonparty-fault provision of the CJRA, codified at Ark. Code Ann. § 16-55-202, is unconstitutional because: (1) it violates the due-process guarantees of article 2, § 8 of the Arkansas Constitution; (2) it violates article 5, § 32 and article 2, § 13 of the Arkansas Constitution by limiting recoveries and precluding complete recoveries for personal injuries; (3) it invades the Arkansas Supreme Court’s constitutional grant of authority to establish the rules of pleading, practice, and procedure pursuant to amendment 80, § 3 of the Arkansas Constitution; and (4) it violates the separation-of-powers clause found in article 4, § 2 of the Arkansas Constitution. Respondents disagree with these arguments and aver that section 16-55-202 should be upheld as it is rationally related to a desirable and legitimate objective.

|fiThe nonparty-fault provision of the CJRA reads:

(a) In assessing percentages of fault, the fact finder shall consider the fault of all persons or entities who contributed to the alleged injury or death or damage to property, tangible or intangible, regardless of whether the person or entity was or could have been named as a party to the suit.
(b)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if the defending party gives notice that a nonparty was wholly or partially at fault not later than one hundred twenty (120) days prior to the date of trial.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
(c)(1) Except as expressly stated in this section, nothing in this section shall eliminate or diminish any defenses or immunities which currently exist.
(2) Assessments of percentages of fault of nonparties shall be used only for accurately determining the percentage of fault of named parties.
(3) Where fault is assessed against nonparties, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

Ark.Code Ann. § 16-55-202.

We begin with petitioners’ argument that the nonparty-fault provision invades the powers granted to the judiciary by the Arkansas Constitution in violation of article 4, § 2 and amendment 80, § 3 by adding to or varying the Arkansas Rules of Civil Procedure. Specifically, petitioners contend that the nonparty-fault provision effectively establishes a procedure that conflicts with our “rules of pleadings, practice and procedure.” We agree, and we hold the provision unconstitutional.

Our state constitution has long recognized the importance of separation of powers. |7It reads, “[n]o person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” Ark. Const, art. 4, § 2. Most importantly, amendment 80, § 3 to the Arkansas Constitution instructs that the Arkansas Supreme Court “shall prescribe the rules of pleading, practice and procedure for all courts.”

We have previously struck down acts that conflicted with our procedure for commencing civil actions. In Summerville v. Thrower, 369 Ark. 231, 253 S.W.3d 415 (2007), this court struck down the statutory requirement to submit a reasonable-cause affidavit within thirty days of filing a complaint as unconstitutional. Prior to Summerville, this court struck down as unconstitutional the sixty-day notice statute that governed actions for medical injury. See Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992). In Weidrick, we noted that the statute required a sixty-day notice to sue as a condition before commencing an action for medical injury. See id. This court reasoned in both cases that, “[w]e can think of few rules more basic to the civil process than a rule defining the means by which complaints are filed and actions commenced for a common law tort.” Summerville, 369 Ark. at 239, 253 S.W.3d at 420 (citing Weidrick, 310 Ark. at 146, 835 S.W.2d at 847). We noted in Summerville that the legislation in that case, as well as the legislation in Weidrick, had added an encumbrance to commencing a cause of action that was not found in Ark. R. Civ. P. 3. See Summerville, supra.

|8As was the case in Summerville and Weidrick, the nonparty-fault provision in the instant case conflicts with our “rules of pleading, practice and procedure.” While respondents assert that the nonparty-fault provision should be upheld because it does not directly conflict with our rules of procedure as the legislative requirements did in Summerville and Weidrick, we take this opportunity to note that so long as a legislative provision dictates procedure, that provision need not directly conflict with our procedural rules to be unconstitutional. This is because rules regarding pleading, practice, and procedure are solely the responsibility of this court. See Ark. Const. amend. 80, § 3.

Law is substantive when it is “[t]he part of the law that creates, defines, and regulates the rights, duties, and powers of parties.” Summerville, 369 Ark. at 237, 253 S.W.3d at 419-20 (citing Black’s Law Dictionary 1443 (7th ed. 1999)). Procedural law is defined as “[t]he rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Id., 253 S.W.3d at 420 (citing Black’s Law Dictionary 1221 (7th ed. 1999)).

Clearly the law modifying joint and several liability, Ark.Code Ann. § 16-55-201, defines the right of a party, a defendant, and is substantive. However, after reviewing section 16-55-202, it is clear to this court that the legislature has, without regard to this court’s “rules of pleading, practice and procedure,” established its own procedure by which the fault of a nonparty shall be litigated. While respondents argued in oral argument that |9a defendant has always been able to “point to the empty chair,” the “phantom defendant” established by section 16-55-202 is different. The nonparty-fault provision bypasses our “rules of pleading, practice and procedure” by setting up a procedure to determine the fault of a nonparty and mandating the consideration of that non-party’s fault in an effort to reduce a plaintiffs recovery.

Additionally, the plain language of the statute even instructs that “a pleading” be filed to meet the notice requirement. See Ark.Code Ann. § 16-55-202(b)(2). This is in direct conflict with our Ark. R. Civ. P. 7, which specifically sets forth the pleadings and instructs that “[n]o other pleadings shall be allowed.” Because subsection (b) instructs when the negligence or fault of a nonparty shall be considered, subsection (a) falls as well, as it is dependent on (b).

Because the nonparty provision is procedural, it offends the principle of separation of powers and the powers specifically prescribed to this court by amendment 80. Accordingly, we hold that Ark.Code Ann. § 16-55-202 violates separation of powers under article 4, § 2, as well as amendment 80, § 3 of the Arkansas Constitution. Because we conclude the nonparty-fault provision is unconstitutional based on the stated grounds, we need not address the remaining constitutional challenges to this statute presented by the petitioners.

II. Ark.Code Ann. § 16-55-212(b)

| ^Petitioners also assert that the medical-costs provision of the CJRA, codified at Ark.Code Ann. § 16-55-212(b), violates the constitution because: (1) it prevents a plaintiff from recovering the full value of medical services in conflict with the collateral-source rule; (2) it violates the separation-of-powers clause found in article 4, § 2 and violates amendment 80, § 3 of the Arkansas Constitution; and (3) it limits the amount that can be recovered for injury to a plaintiff in violation of article 5, § 32 of the Arkansas Constitution. Respondents aver that the medical-costs provision does not conflict in any way with the collateral-source rule because it does not seek to introduce evidence that other payments were received for a plaintiffs medical bills; rather, they claim, it limits the reasonable value of a plaintiffs expenses to the amount actually paid or to be paid on a plaintiffs behalf. Further, Respondents contend that it does not limit recovery because it does not place a cap, or a dollar limitation, on the amount a plaintiff may recover.

The medical-costs provision of the CJRA reads:

Any evidence of damages for the costs of any necessary medical care, treatment, or services received shall include only those costs actually paid by or on behalf of the plaintiff or which remain unpaid and for which the plaintiff or any third party shall be legally responsible.

Ark.Code Ann. § 16-55-212(b) (Supp.2003) (emphasis added).

It is undisputed that the rules of evidence are “rules of pleading, practice and procedure.” Moreover, we have held that the rules of evidence are rules falling within this court’s domain. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). Our review of |1Tthe plain language of the medical-costs provision reveals that the instant statute promulgates a rule of evidence. Here, the provision clearly limits the evidence that may be introduced relating to the value of medical expenses to the amount of medical expenses paid or the amount to be paid by a plaintiff or on a plaintiffs behalf, thereby dictating what evidence is admissible. Because rules regarding the admissibility of evidence are within our province, we hold that the medical-costs provision also violates separation of powers under article 4, § 2 and amendment 80, § 3 of the Arkansas Constitution and, therefore, is unconstitutional.

Because we conclude that Ark-Code Ann. § 16-55-212(b) is unconstitutional based on the stated grounds, we do not address the remaining constitutional challenges to this statute presented by the petitioners.

Certified questions answered.

      . While the question was phrased by the parties and the district court using the word "allow” rather than "require,” the statute itself uses the word “shall,” clearly mandating the consideration of the fault of nonparties.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 254
    John H. BAYIRD, as Administrator for the Estate of Mamie Elliott, Deceased, Appellant, v. William FLOYD, Appellee.
    No. 08-1099.
    Supreme Court of Arkansas.
    May 1, 2009.

      David A. Couch and Brian G. Brooks, for appellant.
    Williams & Anderson PLC, by Jess Askew III and Stephen A. Hester, Little Rock, for appellee.
   PER CURIAM.

| Appellant John H. Bayird, as Administrator for the Estate of Mamie Elliott, Deceased, appeals the order of the Drew County Circuit Court dismissing his complaint against Appellee William Floyd. In its order entered of record on July 29, 2008, the circuit court dismissed Floyd from the action, stating:

Upon considering as true the allegations contained in the complaint and amended complaints and all other pleadings and exhibits submitted herein, the Court finds insufficient facts to support a claim for which relief can be granted against separate defendant, William Floyd. Therefore the Motion to Dismiss should be granted pursuant to Ark. R. Civ. P. 12(b)(6).

(Emphasis added.)

Although the circuit court stated that the case was dismissed pursuant to Rule 12(b)(6), the order reflects that the court considered other pleadings and exhibits in making 12its ruling. As such, the motion to dismiss was converted to a motion for summary judgment. As this court has explained:

When a trial court considers matters outside the pleadings, the appellate courts will treat a motion to dismiss as one for summary judgment. Kyzar v. City of West Memphis, 360 Ark. 454, 201 S.W.3d 923 (2005). A motion to dismiss is converted to a motion for summary judgment when matters outside of the pleadings are presented to and not excluded by the court. Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002).

Robbins v. Johnson, 367 Ark. 506, 510, 241 S.W.3d 747, 750 (2006) (quoting T.J. ex rel. Johnson v. Hargrove, 362 Ark. 649, 654, 210 S.W.3d 79, 81-82 (2005)). Just as in Robbins, the circuit court’s order of dismissal in the present case was actually an order of summary judgment.

The record now before us is replete with pleadings filed with, and presumably considered by, the circuit court including, but not limited to, answers to the complaint and amended complaints, motions to dismiss, and responses and replies to Floyd’s motions to dismiss. The addendum submitted by Bayird lacks these and perhaps other relevant pleadings that are essential to our understanding of this case. The procedure to be followed when an appellant has submitted an insufficient abstract or addendum is set forth in Ark. Sup.Ct. R. 4 — 2(b)(3):

|aWhether or not the appellee has called attention to deficiencies in the appellant’s abstract or Addendum, the Court may address the question at any time. If the Court finds the abstract or Addendum to be deficient such that the Court cannot reach the merits of the case, or such as to cause an unreasonable or unjust delay in the disposition of the appeal, the Court will notify the appellant that he or she will be afforded an opportunity to cure any deficiencies, and has fifteen days within which to file a substituted abstract, Addendum, and brief, at his or her own expense, to conform to Rule 4 — 2(a)(5) and (8). Mere modifications of the original brief by the appellant, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted brief by the appellant, the appellee will be afforded an opportunity to revise or supplement the brief, at the expense of the appellant or the appellant’s counsel, as the Court may direct. If after the opportunity to cure the deficiencies, the appellant fails to file a complying abstract, Addendum and brief within the prescribed time, the judgment or decree may be affirmed for noncompliance with the Rule.

Accordingly, under Rule 4 — 2(b)(3), we order Bayird to file a substituted addendum and brief that includes the omitted pleadings and exhibits within fifteen days from the date of entry of this order. If Bayird fails to do so within the prescribed time, the judgment appealed from may be affirmed for noncompliance with Rule 4-2. After service of the substituted addendum and brief, Floyd shall have an opportunity to revise or supplement its addendum in the time prescribed by the court.

Rebriefing ordered.

      . Floyd has included a supplemental addendum that includes the complaints and amended complaints, as well as the original motion to dismiss but not the subsequent motions to dismiss. It is not necessary for Bayird to reproduce those pleadings that Appellee has provided in its supplemental addendum.


text:
    2009 Ark. 262
    Fred E. EGGESTEIN, Appellant, v. Shirley A. EGGESTEIN, Appellee.
    No. 09-403.
    Supreme Court of Arkansas.
    May 7, 2009.

      Rebecca Hass, for appellant.
    Glenn Lovett, Jr., Jonesboro, for appel-lee.
   PER CURIAM.

| Appellant Fred Eggestein has filed with this court a petition for a writ of certiorari to complete the record. Mr. Eggestein and his wife, Shirley Eggestein, were divorced by decree entered on September 18, 2008. Mr. Eggestein filed a timely notice of appeal on October 17, 2008. In his notice of appeal, he asserted that the transcript and record had been ordered from the court reporter, Joyce King, and certified that he had “made financial arrangements required by the court reporter.” On January 13, 2009, two days before the record was due to be lodged with this court, Mr. . Eggestein filed a motion for extension of time to file the record. The circuit court granted Mr. Eg-gestein’s motion on January 14, 2009, extending the time until April 15, 2009. On April 14, 2009, Mr. Eggestein filed the instant petition for writ of certiorari to complete the record, stating that he had been Uniformed by the court reporter that she would not be able to complete the record on time.

Mrs. Eggestein filed a response to Mr. Eggestein’s petition on April 22, 2009, to which she attached an affidavit from the court reporter, Joyce King. Ms. King averred that she received a phone call from Mr. Eggestein’s attorney, Rebecca Hass, in early October 2008 wherein Ms. Hass said she was “considering filing an appeal” on Mr. Eggestein’s behalf. Ms. Hass inquired about the length of the transcript and asked what financial arrangements would be necessary; Ms. King replied that the transcript would require a deposit of $1500.00. Ms. Hass said that she would call her back.

Later in October, Ms. King received a call from Mrs. Eggestein’s attorney, Glenn Lovett, who said that he had received a notice of appeal and asked whether the necessary financial arrangements had been made. Ms. King said that she had not received a copy of the notice of appeal, and no financial arrangements had been made.

By December 3, 2008, Ms. King had still not heard from Ms. Hass, so Ms. King wrote a letter to Ms. Hass advising that she still had not received either a copy of the notice of appeal or the required deposit. Ms. Hass called Ms. King in January 2009 to say that she intended to file a motion for extension of time to lodge the record and that she had mailed a check for the deposit. Ms. King did not receive the check, which was for $2000.00, until January 14, 2009; on that same date, the circuit court told Ms. King that the motion for | ^extension of time had been granted. The court also informed Ms. King that the parties were discussing mediation and that the transcript might not be needed.

Ms. King -wrote to Ms. Hass on January 19, 2009, confirming receipt of the check and asking Ms. Hass to inform Ms. King “immediately” (emphasis in original) whether or not the transcript was needed. Ms. Hass did not answer the letter. Ms. King again wrote to Ms. Hass on February 16, 2009, specifically requesting a status report on the need for the transcript. Receiving no reply, Ms. King sent another letter to Ms. Hass on March 25, 2009, reminding Ms. Hass that the record was due on April 15, 2009, and asking counsel to contact her “as soon as possible.”

Ms. Hass finally replied to Ms. King in a letter dated April 1, 2009, in which Ms. Hass asked Ms. King to “[p]lease complete the transcript as planned for the appeal.” Ms. King responded by informing Ms. Hass that there was “no way” that she could complete the transcript by April 15.

In her affidavit, Ms. King states that, had she been informed of the filing of the notice of appeal and received the deposit in October, she likely could have completed the transcript within ninety days. Moreover, she states that, if Ms. Hass had told her even as late as mid-March that the transcript was needed, she still could have prepared it on time. However, because she received no responses, she did not know that Ms. Hass wanted the transcript until she received her letter on April 4, 2009.

hiUnder Rule 3(e) of the Arkansas Rules of Appellate Procedure-Civil, a notice of appeal must “contain a statement that the appellant has ordered the transcript ... and has made any financial arrangements required by the court reporter pursuant to ArkCode Ann. § 16 — 13—510(c).” Here, although Mr. Eggestein’s notice of appeal contains the required statements, the affidavit of Ms. King indicates that counsel failed to follow through on these statements with the necessary actions.

This court has noted that the procedural steps outlined in Rule 3(e) require only substantial compliance, provided that the appellee has not been prejudiced by the failure to comply strictly with the rule. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996). However, both this court and the court of appeals have also held that there is no substantial compliance when the transcript is not actually ordered or when the notice of appeal declares that the transcript has been ordered when, in fact, it has not been. See McElroy v. Am. Med. Int’l, Inc., 297 Ark. 527, 763 S.W.2d 89 (1989); Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982); Shamlin v. Quadrangle Enters., 101 Ark.App. 164, 272 S.W.3d 128 (2008). Here, the transcript was eventually ordered and financial arrangements were made in conjunction with a motion for extension of time to lodge the record. Mrs. Eggestein contends, however, that a writ of certiorari should not be granted where the petitioner is responsible for the delay in obtaining the transcript.

The case of DeViney v. State, 299 Ark. 471, 772 S.W.2d 607 (1989), is instructive. There, appellant DeViney filed a notice of appeal from the circuit court’s denial of her motion for postconviction relief pursuant to Ark. R.Crim. P. 37. In her notice of appeal, DeViney stated that she had served notice on the court reporter that she desired to appeal and asked the court reporter to prepare the proper documents and transcript. The day before the record was due, DeViney sought an extension of time from the circuit court; however, the court denied her motion, finding that she had not complied with Rule 3(e). DeViney, 299 Ark. at 472, 772 S.W.2d at 608. In its order denying the motion, the circuit court found that the court reporter had written to DeViney on June 9, six days after the notice of appeal had been filed, to inform her that the transcript would cost $279.00. DeViney did not respond, and the court reporter wrote to her again on July 5 to ask whether the appeal was being abandoned. Again, there was no response, and the court reporter contacted DeViney by telephone on July 25. However, neither the court reporter nor the court received any communication from DeViney regarding the transcript until she tendered the $279.00 and filed her motion for extension of time. Id.

In affirming the circuit court’s refusal to extend the time for lodging the record, this court cited DeViney’s failure to comply with Rule 3(e). Noting that the “equivocal” language of her notice of appeal had been coupled with a failure to actually order the transcript, this court concluded that DeViney had not substantially complied with the rule:

|6In view of the absence of a specific order for the transcript, the failure to respond to repeated inquiries by the court reporter, and the continued inaction until the eve of the deadline for filing the appeal, we cannot say the trial court’s discretion was abused by refusing to extend the time. The purpose behind the rules of appellate procedure is to expedite appeals, not to delay them.

Id. at 474, 772 S.W.2d at 609.

Here, while the notice of appeal filed by Ms. Hass states that she had ordered the transcript, it is apparent that she failed to provide the court reporter with a copy of the notice of appeal or otherwise inform Ms. King that she needed the transcript until just before the original deadline to lodge the record. Thereafter, Ms. Hass was not diligent in communicating with the court reporter. Moreover, we find unpersuasive Ms. Hass’s argument that she understood Ms. King’s January 19, 2009 letter to mean that Ms. King only needed word if Ms. Hass did not want the transcript. In that letter, Ms. King stated that the judge had told her that Ms. Hass and Mr. Lovett “plan to maké a decision of whether or not to go before a mediator and a transcript may not be necessary. I need you to let me know immediately if that is the case.” Any reasonable person would take this to mean that the court reporter needed the information one way or the other, not only if the transcript was not needed.

Accordingly, we conclude that the failure to lodge the record was due to Ms. Hass’s dilatory actions, and we therefore deny the petition for writ of certiorari to complete the record and refer her to the Supreme Court Committee on Professional Conduct. Moreover, because the record was due to be lodged with this court on April 15, 2009, and that has not been accomplished, we grant Ms. Eggestein’s motion to dismiss the appeal. See Hickson v. Ark. Dep’t of Human Servs., 357 Ark. 577, 182 S.W.3d 483 (2004) (per curiam) (the timely filing of the record on appeal is a jurisdictional requirement to perfecting an appeal).


text:
    2009 Ark. 257
    Johnny Elmo MORGAN, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-1330.
    Supreme Court of Arkansas.
    May 7, 2009.

      Robert S. Blatt, Fort Smith, for appellant.
    Dustin McDaniel, Att’y Gen., by: LeaAnn J. Irvin, Ass’t Att’y Gen., for ap-pellee.
   PAUL E. DANIELSON, Justice.

| Appellant Johnny Elmo Morgan appeals the judgment of the Scott County Circuit Court convicting him of manufacturing methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, first-degree endangering the welfare of a minor, manu-factoring methamphetamine in the presence of a minor, and manufacturing methamphetamine near certain facilities. He was sentenced to a total of 480 months’ imprisonment. On appeal, Morgan argues that the circuit court erred in denying his motion to suppress evidence and that the evidence was insufficient to support the convictions.

|2The Arkansas Court of Appeals issued an opinion finding that the evidence was insufficient to support the convictions. See Morgan v. State, CACR 08-306, 2008 WL 4821000 (Ark. Ct. App. Nov. 5, 2008). Accordingly, the court of appeals reversed and dismissed the case. The State then petitioned this court for review of the court of appeals’s decision. We granted the State’s petition for review pursuant to Arkansas Supreme Court Rule 1-2(e). When we grant review of a decision by the court of appeals, we review the case as though the appeal was originally filed in this court. See Yarbrough v. State, 370 Ark. 31, 257 S.W.3d 50 (2007). Upon such review, we find no error and affirm the judgment of conviction.

The record reveals the following facts. On March 8, 2007, the district court issued a search warrant for the residence Morgan shared with Amy Smith. The warrant was issued based upon the affidavit of Sergeant Joey Deer, of the Scott County Sheriffs Office, explaining that he had reason to believe that Morgan’s residence was being used to conceal certain illegal property, namely, methamphetamine and/or drug paraphernalia. The affidavit further stated that a confidential informant, who had been proven credible by making at least two controlled-substance purchases that led to the confiscation/seizure of illegal narcotics, had made a controlled buy of methamphetamine within the last forty-eight hours from the Morgan residence.

At trial, Heath Tate, of the Fifteenth Judicial District Drug Task Force, testified that he executed the warrant at Morgan’s residence. When the warrant was executed, Morgan |awas not present, but Smith and another woman were standing outside the single-wide mobile home. Two children, both of whom were Morgan’s, and a fifteen- or sixteen-year-old juvenile were inside. Two more of Morgan’s children later arrived on a school bus.

Tate testified that there was an unlocked metal outbuilding approximately thirty to forty feet behind the trailer, as well as a “semi-trailer box.” Tate acted as the evidence custodian and, according to his log, the following evidence was found: a glass smoking pipe, a plastic bag, three corners of plastic bags, and a plastic bag containing a white powder substance, all located in the north bedroom of the residence; and two light bulbs, a rolled dollar bill, a straw, and a roll of plastic bags, all located on top of the refrigerator in the kitchen. He testified that the pipe could be used for smoking methamphetamine, that a controlled substance could be wrapped in a plastic bag corner, and that the light bulb had been hollowed out and could be used to smoke methamphetamine. Both light bulbs had discoloring which, as Tate testified, suggested they had been used to smoke methamphetamine. Tate also noted that the plastic bags could be used for delivery of methamphetamine and that the corners of the bags are also commonly utilized as a way to handle methamphetamine.

The evidence log also reflects that the police found the following evidence in the outbuilding: a camp stove; an “active” HCL generator; two one-gallon containers of muriatic acid; a one-gallon container of lighter fluid that was one-half full; coffee filters; two glass ^containers; a paper towel with red residue; a glass container holding one pound of salt; two glass containers holding unknown liquids; two empty charcoal starter containers; an empty salt package; plastic tubing; “ten generators made of plastic 20 oz. bottles”; a “green metal ammo can containing numerous matches”; and a plastic cardboard box containing seven pints of hydrogen peroxide. Tate testified that the “active” HCL generator, which had a tube coming out of it, was used in the manufacture of methamphetamine. Though listed as part of the items found in the outbuilding, Tate stated that the ten, twenty-ounce plastic bottles were found “outside the metal building just laying around the yard” between the residence and the building. Keith Vanravensway, of the Scott County Sheriffs Office, had participated in the search and stated that he found them scattered around the back yard in a twenty-five-to fifty-yard radius. Tate testified that the bottles had been used as generators because they contained salt inside, which is used to gas off the methamphetamine. Tate further testified that the striker plates had been removed from the matches, which is consistent with the manufacture of methamphetamine.

Sergeant Deer also assisted in the search of Morgan’s residence. Deer testified that there was a metal outbuilding, a trailer for an eighteen wheeler, an old swimming pool, thirty or forty salvage vehicles, and other buildings. He also stated that the back yard was “grown up.” According to Deer, there was no fence between the residence and the outbuilding.

| BPhillip Johnston, a forensic chemist with the Arkansas State Crime Laboratory, testified that the burned residue in the pipe was methamphetamine and dimethyl sulfone, which is a common cutting agent that is combined with a drug to increase the weight of the drug. He stated that the white powder in the plastic bag was 0.2199 grams of dimethyl sulfone. Johnston also tested the residue in the light bulb and the straw and found it was also methamphetamine and dimethyl sulfone. He found methamphetamine, phosphorus, and iodine residue on the stained paper towel and concluded that it was evidence of manufacturing methamphetamine. The unknown liquids found in a glass container did not contain any controlled substance, but one contained an acid, which is used in the manufacture of methamphetamine. Johnston testified that an HCL generator is a plastic bottle with salt and sulfuric acid mixed in the bottom. He further testified that a hole can be made in the cap of the bottle, through which a tube is inserted, and gas then exits the bottle through the tube. Johnston concluded that the plastic bottle found with the tubing might indicate the manufacture of methamphetamine and that a gas stove can be used in the manufacture of methamphetamine. He also testified that lighter fluid, muriatic acid, phosphorus, plastic tubing, charcoal fluid, salt, hydrogen peroxide, and iodine are used in the manufacture of methamphetamine. On cross-examination, Johnston acknowledged that he did not know when the manufacturing process would have taken place and that he could not determine how long ago someone used the HCL generator that had the tubing.

| r,Larry Garner, a five-year agent of the Fifteenth District Drug Task Force, testified that, upon investigation and consideration of the materials present, he concluded it was a methamphetamine lab. In his opinion, the ten HCL generators made from the plastic bottles were old and inactive, but that the one with the tubing was still active. He stated that each one indicated a separate manufacturing process.

On appeal, Morgan argues that the jury’s verdicts were not supported by substantial evidence. Although Morgan raises this issue as his final point on appeal, double-jeopardy concerns require that we review arguments regarding the sufficiency of the evidence first. See Boldin v. State, 373 Ark. 295, 283 S.W.3d 565 (2008). The State first argues that this argument is not preserved for appeal. In the alternative, the State argues that substantial evidence supports the convictions.

Our standard of review for a sufficiency challenge is well settled. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. See Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). We affirm a conviction if substantial evidence exists to support it. See id. 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. See id.

Furthermore, circumstantial evidence may provide a basis to support a conviction, |7but it must be consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion. See id. Whether the evidence excludes every other hypothesis is left to the jury to decide. See id. The credibility of witnesses is an issue for the jury and not the court. See id. The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. See id.

We first address the State’s assertion that this issue was not properly preserved for appeal. The State argues that Morgan failed to preserve this argument because he did not renew his directed-verdict motion. The State is mistaken. Morgan offered no testimony or evidence in his defense. We have held, under these circumstances, that the close of the State’s case and the close of all the evidence occur simultaneously, and there is no need to renew the motion for a directed verdict to preserve the earlier sufficiency argument. See Bell v. State, 371 Ark. 375, 266 S.W.3d 696 (2007). Therefore, this issue was preserved for our review.

Morgan contends that the evidence presented at trial was all circumstantial and was insufficient to support the convictions because nothing linked him to the contraband seized. Specifically, he argues that the HCL generators were old and not tested to confirm that they were HCL generators and that “no fingerprint testing was done on any of the items seized from the yard and outbuilding, which was unlocked and open to anyone, to demonstrate any connection between [Morgan] and the seized items.” He further notes that none of thelsState’s witnesses could testify as to when there had been a manufacture of methamphetamine. The State avers that proof of constructive possession is sufficient to support the conviction and that exclusive possession is not necessary as long as the place where the contraband was found was under the dominion and control of the accused.

The first count of which Morgan was convicted was unlawfully manufacturing methamphetamine in violation of Ark. Code Ann. § 5 — 64—401(a)(1) (Supp.2007). Arkansas Code Annotated § 5-64-101(16) (Supp.2007) defines manufacture as follows:

(A) “Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from a substance of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis.
(B) “Manufacture” includes any packaging or repackaging of a controlled substance or labeling or relabeling of a controlled substance’s container.

Furthermore, he was found to be in violation of Ark.Code Ann. § 5-64-403 (Supp. 2007), which states, in pertinent part, that “[i]t is unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture methamphetamine.” Ark.Code Ann. § 5-64-403(c)(5).

According to the testimony of Sergeant Deer, a confidential informant made two controlled-buy purchases from Morgan’s residence before a search warrant was obtained. A field test conducted on the substances recovered during these controlled buys tested positive |9for methamphetamine. As previously noted, drug paraphernalia and several items used in the manufacture of methamphetamine were seized from Morgan’s residence, yard, and an outbuilding located thirty to forty feet behind the residence.

Although Morgan was not present at the residence at the time of the search, it is not necessary that the State prove literal physical possession of contraband. See Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). Contraband is deemed to be constructively possessed if the location of the contraband was under the dominion and control of the accused. See Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998). We have held that constructive possession exists where joint occupancy of the premises occurs and where there are additional factors linking the accused to the contraband. See Embry v. State, 302 Ark. 608, 792 S.W.2d 318 (1990). Those additional factors include: (a) whether the accused exercised care, control, and management over the contraband; and (b) whether the accused knew the material was contraband. See id; see also Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). This control and knowledge can be inferred from the circumstances, such as the proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found. See Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).

In the instant case, pursuant to a valid search warrant, the contraband was found in the kitchen and a bedroom of Morgan’s residence, strewn about his yard, and in an 110outbuilding directly behind his residence. Mr. Garner testified that he concluded the matei-ials found in the search were the components of a methamphetamine lab. While ten of the HCL generators were old and inactive, in Garner’s opinion, one found was still active. Traces of methamphetamine were found in the pipe, light bulb, and straw. The stained paper towel contained traces of methamphetamine, phosphorus, and iodine residue, which Garner and Phillip Johnston, a forensic chemist, testified are all consistent with the manufacture of methamphetamine. Other specific items seized, such as the lighter fluid, muriatic acid, phosphorus, plastic tubing, charcoal fluid, salt, hydrogen peroxide, and iodine were all also said to be consistent with the manufacture of methamphetamine by the State’s witnesses.

On appeal, Morgan’s argument focuses on what evidence was not presented at trial to prove his guilt. However, after reviewing the evidence introduced at trial in the light most favorable to the State and considering only the evidence supporting the verdict, we conclude that there was substantial evidence to support the jury’s verdict. Therefore, we affirm the convictions for manufacturing methamphetamine and possession of drug paraphernalia with the intent to manufacture methamphetamine.

Arkansas Code Annotated § 5-27-205(a)(l) instructs that a person commits the offense of first-degree endangering the welfare of a minor if, “being a parent ... he or she purposely ... [engages in conduct creating a substantial risk of death or serious physical injury to a minor.” Ark.Code Ann. § 5-27-205(a)(1) (Repl.2006). In the instant case, at least two of Morgan’s minor children were present in the residence at the time of the search. Drug paraphernalia was found inside the residence and in the yard, both locations that children could easily access. Furthermore, dangerous chemicals and other components of a methamphetamine lab were found in the unlocked outbuilding behind the residence. We cannot say that Morgan’s conviction for endangering the welfare of a minor or the sentence enhancement he received for manufacturing methamphetamine in the presence of a minor were not supported by substantial evidence and, therefore, we affirm.

For his second point on appeal, Morgan contends that the search warrant in the instant case was defective because it was obtained by allegedly false and misleading information provided to the judge who issued it. The State argues that the circuit court properly denied Morgan’s motion to suppress. We do not find the search warrant defective and agree that Morgan’s motion to suppress was properly denied.

In deciding whether to issue a warrant, the magistrate should make a practical, common-sense determination based on the totality of the circumstances set forth in the affidavit. See Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Thus, when reviewing the denial of a motion to suppress evidence, this court conducts a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. See Roster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. See id. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. See id.

On appeal, Morgan argues that the information provided by Sergeant Deer in his affidavit obtaining the search warrant was so deficient and lacking in indicia of probable cause, reliance upon the search warrant issued was unreasonable, and the circuit court should have granted his motion to suppress the evidence. Specifically, Morgan contends that there was no basis upon which to gauge or assess the reliability of the confidential informant because Sergeant Deer did not know the confidential informant before the Morgan investigation and because the two controlled buys that Sergeant Deer referenced in his affidavit had been controlled buys in this case, at the residence in question, rather than in previous cases. Further, Morgan argues that while Sergeant Deer believed he had made a thorough search of the confidential informant before each controlled buy, he admitted that he did not search under the confidential informant’s shoe inserts.

Arkansas Rule of Criminal Procedure 13.1 governs the issuance of search warrants. Rule 13.1(b) generally requires that where an affidavit or testimony is based in whole or in part on hearsay, the affiant shall set forth particular facts bearing on the informant’s reliability. However, Rule 13.1(b) also provides that the failure of the affidavit or testimony | iSto establish the veracity and bases of knowledge of persons providing information to the affiant shall not require that the application be denied if the affidavit or testimony, viewed as a whole, provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place.

This is not a case in which the search warrant was based on pure hearsay or in which the reliability of the informant was completely unknown. There is no fixed formula in determining an informant’s reliability. See Stanton v. State, supra. Factors to be considered in making such a determination include whether the informant’s statements are: (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. See Stanton v. State, supra.

Here, the confidential informant’s information was corroborated by his personal observations and corroborated by the personal observations of officers Tate and Deer. The controlled buy was corroborated by the participation and observation of officers Tate and Deer: Sergeant Deer searched the informant and his vehicle for any illegal contraband or monies; the informant was given money to make the controlled buy; Tate and Deer followed the informant to a location near Morgan’s residence; and, Tate and Deer observed the informant walk into the residence, stay approximately two minutes, and return with drugs. Sergeant Deer’s account of the drug buy, alone, was sufficient to establish probable cause to search Morgan’s home for drugs and other contraband. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998) (holding that an officer’s account of a controlled buy, made by an informant, was, by itself, sufficient to establish probable cause for issuance of a search warrant). We do not find the fact that the officers did not search under the confidential informant’s shoe inserts of consequence as both Deer and Tate personally observed the controlled buys in their entirety other than the short amount of time that the confidential informant was inside Morgan’s home. Considering the totality of the circumstances, that fact, alone, does not obliterate the probable cause established.

The facts in the affidavit, as a whole, provided a substantial basis for determining that reasonable cause existed to believe that items related to the sale of controlled substances would be found in Morgan’s residence. Accordingly, the circuit court’s denial of Morgan’s motion to suppress was not clearly against the preponderance of the evidence, and we affirm.

Affirmed; court of appeals reversed.

      . The later two counts are enhanced-penalty statutes. While the jury convicted Morgan of the conduct described in both statutes, they chose only to enhance his sentence based upon finding him guilty of manufacturing methamphetamine in the presence of a minor.


author: JOHN B. ROBBINS, Judge.

text:
    2009 Ark. App. 310
    CARDER BUICK-OLDS CO., Appellant v. Roger WOOTEN, Appellee.
    No. CA 08-898.
    Court of Appeals of Arkansas.
    April 22, 2009.

      Friday, Eldredge & Clark, LLP, by: Larry W. Burks, Little Rock, for appellants.
    Lightle, Raney & Bell, LLP, by: Donald P. Raney and Jonathan R. Streit, Searcy, for appellees.
   JOHN B. ROBBINS, Judge.

| Appellant Carder Buick-Olds asked the circuit court to issue a writ of scire facias and revive a ten-year-old judgment against appellee Roger Wooten. The court denied the writ, and Carder filed this appeal. We reverse the denial of the writ because the judgment remains unsatisfied. However, we remand with instructions that Wooten may satisfy the judgment by paying the amounts designated in the parties’ 1992 settlement.

Carder sued Wooten in 1991 in connection with their operation of a used car business, R & T Motors. Carder alleged that Wooten and his business partner, Tony Wilson, misappropriated R & T’s assets, failed to pay a financing company, and failed to give Carder its share of the profits. On February 7, 1992, Carder proposed a settlement whereby Wooten [¡.and Wilson would pay Carder $9000 and convey their R & T stock, and Carder would acquire ownership of the business and “be responsible for all current and future liabilities, including contingent liabilities.” On February 21, 1992, Wooten and Wilson responded that they would accept the proposal, with each man making half of the cash payment. Wooten conditioned his acceptance on the removal of the R & T Motors sign from Wilson’s current car lot and the disconnection of the R & T Motors telephone number. Wilson agreed to these conditions. Wilson also asked that Carder’s lawsuit be dismissed with prejudice and that R & T Motors continue its defense of a lawsuit by a man named Cole. Within a short time, Wilson and George Carder met in person at Wilson’s car lot. They took down the R & T Motors sign, called the telephone company to change the number, and agreed that the Cole lawsuit would be resolved.

A few months later, Carder’s attorney indicated in a letter to Wooten’s and Wilson’s attorneys that no settlement had been reached. Wooten and Wilson filed a petition to enforce the settlement, which the White County chancellor granted, ruling that Carder’s February 7, 1992 letter constituted an offer of settlement; that Wooten’s and Wilson’s February 21, 1992 responses were qualified or conditional acceptances; and that the conditions were resolved when Wilson and Carder met in person. The chancellor entered the following judgment on July 13,1993:

The Court finds that this matter was settled and that settlement will be enforced as a judgment of this court. The Parties shall tender the money and exchange the stock and sign releases in accordance with the Court’s findings within 10 days of entry of this Decree.

|3Seven days after entry of judgment, Wooten sent Carder $4500, along with his shares of stock and a signed settlement agreement. Carder returned these items and appealed the judgment. We affirmed the enforcement of the settlement in Carder Buick-Olds Co., Inc. v. Wilson, CA93-1128, 1994 WL 693223 (not designated for publication) (Ark.App. Dec. 7, 1994). A few months later, Wooten re-sent the $4500, the stock certificates, and the settlement agreement to Carder. Carder again returned the items. Thereafter, the matter lay dormant for approximately eight years.

On June 23, 2003, Carder filed a petition for a writ of scire facias, seeking to revive the judgment against Wooten. Wooten responded that the judgment was satisfied, citing his previous tenders of money and stock certificates. Carder took no further action on the writ and, on May 21, 2007, Wooten sought a dismissal. Carder continued to insist that the judgment should be revived and argued that Wooten had never tendered a proper amount to satisfy the judgment and had never relinquished certain R & T Motors property. Carder claimed that, as a result of these omissions, Wooten owed approximately $288,000 on the fourteen-year-old judgment. The circuit court disagreed, ruling that:

Defendants, Roger Wooten and Tony Wilson, complied with this Court’s Judgment of July 13, 1993. Defendants delivered checks in the amount of the Judgment along with certificates of stock to the Plaintiffs. There was nothing left to do.
Plaintiffs’ Petition for Writ of Scire Fa-cias is denied.

Carder appeals from this order. Because this case originated in equity, our review is de novo. See Young v. Young, 101 Ark.App. 454, 278 S.W.3d 603 (2008).

|4A judgment remains in full force and effect for ten years. See Ark. Code Ann. § 16-56-114 (Repl.2005); Bird v. Kitchens, 215 Ark. 609, 221 S.W.2d 795 (1949). Within the ten-year period, a writ of scire facias may be issued to revive the judgment for another ten years, if the judgment has not been satisfied. See Ark. Code Ann. § 16-65-501 (Repl.2005); Burton v. Bank of Tuckennan, 276 Ark. 538, 637 S.W.2d 577 (1982). The case at bar presents two questions: 1) has Carder’s 1993 judgment against Wooten been satisfied, and 2) if not, what must Wooten do to satisfy it?

On the first question, we hold that the 1993 judgment has not yet been satisfied. Wooten has twice tendered the cash and stock certificates but, despite his efforts, he has been unable to extinguish his judgment debt. Wooten cites Doup v. Almand, 212 Ark. 687, 207 S.W.2d 601 (1948), and Read’s Drug Store v. Hessig-Ellis Drug Co., 93 Ark. 497, 125 S.W. 434 (1910), for their holdings that:

On general principles, whenever the act of one party, to whom another is bound to tender money, services, or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done.

Doup, 212 Ark. at 691, 207 S.W.2d at 603-04; Read’s, 93 Ark. at 502, 125 S.W. at 437. However, these cases excused persons from making a tender that was a condition precedent to obtaining compensation or a refund. We are hesitant to rely on Doup and Read’s for the broad point that a party who owes money to another is fully discharged upon making a tender that has been refused. The tender of payment is generally not the equivalent of payment itself and, even when refused, does not discharge the party’s obligation. See generally John Calamari & Joseph Perillo, Contracts § 21-12 (3d ed. 1992); 13 Sarah Jenkins, Corbin on Contracts § 67.6 (Rev. ed. 2003); 28 Richard Lord, Williston on Contracts §§ 72:43 and 72:45 4th ed. (2003); 74 Am.Jur.2d Tender § 41: 50 (2d ed. 2001); 50 C.J.S. Judgment § 659 (1997). Furthermore, Wooten’s counsel acknowledged during oral argument that the $4500 and the stock certificates remain in Wooten’s hands and that he stands ready to convey them to Carder. Under these circumstances, we conclude that the judgment remains unsatisfied and that the circuit court should have granted a writ of scire facias. We therefore reverse the circuit court in that regard.

However the primary point of contention in this case is, what must Wooten do to satisfy the judgment? Carder argues that Wooten must first pay post-judgment interest on the $4500, as calculated from the date of the 1993 judgment. We disagree. Wooten twice placed the $4500 in Carder’s hands only to have it returned. A creditor cannot continue to demand interest after refusing to accept payment in full. See Vernon v. McEntire, 234 Ark. 995, 356 S.W.2d 13 (1962); Weeks v. McClanahan, 227 Ark. 495, 300 S.W.2d 6 (1957); Miller v. Miller, 193 Ark. 362, 100 S.W.2d 74 (1936). Carder argues, however, that Wooten never made “payment in full” because Wooten’s 1993 and 1995 tenders did not include postjudgment interest. Our acceptance of this argument would work a great unfairness to Wooten, particularly with regard to the $4500 payment he made just seven days after the 1993 judgment was entered. The record is devoid of any communication by Carder to Wooten that the 1993 tender was being rejected based on the lack of postjudgment interest. |fiWe also observe that Wooten forwarded the 1993 payment to Carder within the ten-day deadline that the chancellor incorporated in the judgment. Furthermore, even if Wooten was required to include a small amount of interest despite remitting his payment within the judgment’s ten-day deadline, the equitable doctrine of de minimis non curat lex applies. This doctrine states that the law is not interested in trivial matters. See, e.g., Parker v. Parker, 97 Ark.App. 298, 248 S.W.3d 523 (2007). The amount of interest that accrued on the judgment in seven days was no more than a few dollars. Given all of the circumstances in this case, we decline to hold that the lack of a few dollars’ interest in 1993 should entitle Carder to receive several thousand dollars in interest at this point in the proceedings, sixteen years after entry of judgment.

Carder argues further that Wooten was required to stop the running of interest and keep his tenders “alive” by depositing the $4500 into the court registry. See Equifax, Inc. v. Duster, 463 F.Supp. 352 (E.D.Ark.1978); Barton v. Bowlin, 111 Ark. 123, 163 S.W. 502 (1914). Carder did not make this argument below, and we therefore will not consider it on appeal. See Norman v. Cooper, 101 Ark.App. 446, 278 S.W.3d 569 (2008).

We next address Carder’s argument that the settlement agreement required Wooten to return certain R & T Motors property to the company. Carder contends that, after the car-lot meeting between George Carder and Tony Wilson, the parties continued to |7correspond and discuss drafts of settlement agreements that provided for Wooten’s relinquishment of certain R & T Motors property. Carder also points out that the White County chancellor admitted these letters and drafts into evidence, which, according to Carder, warrants a determination that the documents were part of the parties’ settlement.

We conclude that the settlement agreement, as enforced in the 1993 judgment, did not require Wooten to return any R & T Motors property. Judgments are construed like any other instrument; the determinative factor is the intention of the court, as gathered from the judgment itself and the record. Gibson v. Gibson, 87 Ark.App. 62, 185 S.W.3d 122 (2004). The plain language of the 1993 judgment required Wooten to “tender the money and exchange the stock and sign releases.” It did not require Wooten to do anything else. Further, even though the parties entered all of their correspondence and settlement drafts into evidence at the chancery hearing, it does not follow that each and every one of those items comprised the settlement. As this court explained in our 1994 opinion in this case:

The trial court found that the February 7, 1992, letter from appellants’ counsel constituted an offer to settle; that the February 21, 1992, letters from appel-lees were qualified or conditional acceptances; and that the parties acted to resolve those conditions and effected a settlement.

The parties’ settlement therefore consisted of select pieces of correspondence and of their actions in accepting the settlement offer. According to the chancellor, acceptance occurred on the day that George Carder and Tony Wilson met in person, and all that remained thereafter was the “formality” of drawing up the settlement document. Our 1994 opinion rejected Carder’s claim that the parties’ subsequent negotiations and drafting of settlement | ^documents indicated unresolved questions regarding the settlement. We stated that “the formality of written documents and the drafting of specific language was not material to the parties if the essentials of the deal were agreed on, a contract formed, and actions taken pursuant thereto.”

Based on the foregoing, we reverse the circuit court’s denial of Carder’s petition for a writ of scire facias because the 1993 judgment remains unsatisfied. We remand with instructions that the circuit court enter an order providing that Wooten can satisfy the judgment by paying Carder $4500 and transferring his shares of stock in R & T Motors within a deadline established by the circuit court.

Reversed and remanded with instructions.

KINARD and BAKER, JJ., agree.

      . The judgment was also entered against R & T Investments and Tony Wilson. Appellant states that R & T is now a defunct corporation and that Wilson received a discharge in bankruptcy, leaving Wooten as the only viable judgment debtor.

      . Carder argues that we may consider his argument in our de novo review. Even in de novo review of an equity case, issues cannot be raised for the first time on appeal. See Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560(1982).


author: WAYMOND M. BROWN, Judge.

text:
    2009 Ark. App. 324
    JARSEW, LLC, Appellant v. GREEN TREE SERVICING, LLC, Appellee.
    No. CA 08-1016.
    Court of Appeals of Arkansas.
    April 22, 2009.

      Stephen E. Whitwell, North Little Rock, for appellant.
    Eichenbaum, Liles & Heister, P.A., by: Mitchell L. Berry, Little Rock, for appel-lee.
   WAYMOND M. BROWN, Judge.

I^By order entered May 28, 2008, the Crawford County Circuit Court granted a motion for summary judgment in favor of Green Tree Servicing, LLC (“Green Tree”). The court found that the Commissioner of State Lands failed to conduct the sale of the property in question in accordance with the dictates of Ark. Code Ann. § 26-37-301(a)(2) (Supp.2007). Accordingly, Green Tree had the first lien on property formerly belonging to Katherine and Mark DeSantis. Jarsew, LLC, purchaser of the subject property in a tax sale, appeals from the grant of summary judgment. It contends that the circuit court erred in finding that its interest in the subject property was inferior to that of Green Tree. The circuit court erred in finding that Green Tree, as an interested party rather than an owner, 12was entitled to actual notice of the tax sale. Accordingly, we reverse and remand.

On October 30, 1998, the DeSantises executed a note, security agreement, and mortgage in favor of Greenpoint Credit Corporation (“Greenpoint”) for $94,261.16. The money was used for the purchase of a manufactured home. The lien was perfected by filing. On the certificate of title, Greenpoint listed its address as “P.O. Box 171175, Memphis, TN 38187.” Greenpoint later merged with Green Tree, and the companies continued under the name Green Tree. The companies filed a certificate of merger with the Delaware Secretary of State on September 23,1999.

The DeSantises failed to pay property taxes, and their land was forfeited and certified to the Commissioner of State Lands. Jarsew purchased the property in a negotiated tax sale, and it received a limited warranty deed on November 16, 2006. The record shows that notice of the sale was sent to the DeSantises and received by Katherine DeSantis on May 23, 2005, and on January 10, 2006. Notice was also sent to Guaranty Abstract, the title company involved in the sale of the property. Said notice was received by Bradley Skinner on September 15, 2006. Notice was also sent to Greenpoint at the address listed on the certificate of title on September 26, 2006, but the notice was returned as undeliverable. Notice was also published in the local newspaper of record.

Green Tree filed a foreclosure complaint on May 21, 2007, against Jarsew and the DeSantises. It alleged that its interest in the property was superior to any interest belonging |ato Jarsew. Jarsew responded by asking the court to quiet title to the property in its name. Green Tree moved for summary judgment on October 22, 2007, and the court granted Green Tree’s motion on May 28, 2008. In the order, the court found that the sale to Jarsew was not valid because Green Tree did not receive actual notice of the tax sale; thus, the tax sale did not extinguish Green Tree’s rights to the property. Jarsew filed a timely notice of appeal.

Jarsew challenges the grant of summary judgment in favor of Green Tree. It argues that notice of the tax sale complied with all statutory and constitutional notice requirements; thus, it was entitled to the subject property free and clear of any interest Green Tree may have in the property.

Summary judgment should be granted only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Q’Marra v. MacKool, 361 Ark. 32, 204 S.W.3d 49 (2005); Riverdale Dev. Co. v. Ruffin Bldg. Sys., Inc., 356 Ark. 90, 146 S.W.3d 852 (2004). We determine if summary judgment was appropriate based on whether the evidence presented by the moving party in support of its motion leaves a material fact unanswered, viewing the evidence in the light most | ,(favorable to the nonmoving party and resolving all doubts and inferences against the moving party. George v. Jefferson Hosp. Ass’n, 337 Ark. 206, 987 S.W.2d 710 (1999); Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998).

The circuit court granted summary judgment to Green Tree, thus finding that it had rights in the subject property, after concluding that the Commissioner of State Lands failed to comply with the notice requirements of Ark.Code Ann. § 26-37-301. The relevant portion of that statute reads:

(a)(1) Subsequent to receiving tax-delinquent land, the Commissioner of State Lands shall notify the owner, at the owner’s last known address as certified by the county, by certified mail, of the owner’s right to redeem by paying all taxes, penalties, interest, and costs, including the cost of the notice.
(2) All interested parties shall receive notice of the sale from the Commissioner of State Lands in the same manner.
(c) As used in this section, “owner” and “interested party” means any person, firm, corporation, or partnership holding title to or an interest in the property by virtue of a bona fide recorded instrument at the time of certification to the Commissioner of State Lands.

The issue of notice given to a party with an interest in tax-delinquent land is a matter of statutory interpretation, which we review de novo on the record. Mays v. St. Pat Props., LLC, 357 Ark. 482, 182 S.W.3d 84 (2004). When we construe a statute, our duty is to construe the statute just as it reads. Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003). We look first to the plain language of the statute and give the words their plain and ordinary meaning. Id. If the language of the statute is plain and unambiguous, and 1 Bconveys a clear and definite meaning, there is no need to resort to the rules of statutory construction. Id.

The question here is whether the notice statute requires interested parties to have actual notice of a tax sale. Before a state may take property and sell it for unpaid taxes, the Due Process Clause of the Fourteenth Amendment requires the government to provide the owner notice and opportunity for hearing appropriate to the nature of the case. Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). Strict compliance with the notice requirements of section 26-37-301 is necessary before an owner can be deprived of his or her property. Mays, supra. The notice statute does not require the Commissioner to take every step possible to see that the notice letter arrives in the property owner’s hand; it only requires that the Commissioner notify the owner, at the owner’s last known address, by certified mail, of the owner’s right to redeem the property. Mays, supra; Double “D” Props., supra. When mailed notice of a tax sale is returned unclaimed, the Commissioner must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. Flowers, supra.

Green Tree argues that the foregoing analysis and authorities in support are irrelevant because they involved notice to the owner of the property rather than an interested, party. It relies on the subsection (a)(2), which states that interested parties “shall receive notice of the sale.” But the notice requirement imposed for interested parties is the same as the notice required for owners, as evidenced by the portion of the statute that requires notice to be bjgiven “in the same manner” as those for owners. In other words, owners and interested parties are treated similarly under the notice statute. Green Tree’s argument is also inconsistent with precedent. The Supreme Court of the United States has held that actual notice is not necessary as long as the government provides “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Flowers, 547 U.S. at 226, 126 S.Ct. 1708 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)).

Once notice was returned as undeliverable, the Commissioner was obligated to take any additional reasonable steps to attempt to provide notice to Green Tree before selling his property if practicable to do so. Green Tree argues that the Commissioner could have checked with the Arkansas Secretary of State, which would have led to the discovery that Greenpoint was a Delaware company, which would have led to the discovery that Greenpoint had merged with Green Tree. However, the record is not conclusive on whether this search would have been practicable and led to this result. There remains a genuine issue of material fact as to whether the Commissioner’s actions were consistent with federal constitutional standards.

The circuit court erred in granting summary judgment to Green Tree, as there is no statutory or constitutional requirement that Green Tree receive actual notice of the tax sale. Further, there is still a question as to whether the Commissioner was required to take any additional steps to provide Green Tree with notice. Accordingly, we reverse the grant of |7summary judgment and remand this case for further proceedings.

Reversed and remanded.

VAUGHT, C.J., and HART, J„ agree.

      . The DeSantises had a default judgment entered against them. They are not parties to this appeal.

      . Jarsew received a second deed on November 27, 2006. The first deed contained an error in the legal description of the subject property.

      . Jarsew also contends that Green Tree was not entitled to summary judgment because Green Tree did not have an interest in the subject property. Jarsew relies on a notation on the agreement indicating that Greenpoint sold the loan to First National Bank of Chicago on February 1, 1999. While Jarsew made the argument at trial in opposition to Green Tree’s motion for summary judgment, it failed to obtain a ruling on the issue. Accordingly, that argument is not preserved for appellate review. See Carson v. County of Drew, 354 Ark. 621, 128 S.W.3d 423 (2003).


author: KAREN R. BAKER, Judge.

text:
    2009 Ark. App. 348
    Aubrey D. MOBLEY, Appellant, v. Jerry EVANS and Diane Evans, Appellee.
    No. CA 08-850.
    Court of Appeals of Arkansas.
    April 29, 2009.
    Jennifer Douglas, Lake City, for appellant.
    Don R. Brown, Pocahontas, for appellee.
   KAREN R. BAKER, Judge.

| jAppellant Aubrey Mobley appeals from a decision by the Randolph County Circuit Court quieting title to a four-acre tract of land in appellees, Jerry and Diane Evans. On appeal, Mobley contends that the Ev-anses’ deed is void on its face, and the trial court erred in quieting title of the four-acre tract in the Evanses. We agree and reverse and remand.

This appeal concerns a dispute over four acres of property in Randolph County, Arkansas. On June 5, 2000, Mr. Mobley and his wife received a Warranty Deed to the following lands (with other adjoining lands):

All of the NW1/4 SW1/4 EXCEPT that 4 acres, more or less North of the creek described in Deed from Dan F. Kirk to Fred Hawkins recorded in Randolph County Deed Record Book 58 Page 165, and all of said land being in Section 34, Township 20 North, Range 1 West.

In November 2004, the Evanses purchased forty acres from Tony Hand and his wife. On ^November 30, 2004, the Evanses received a Commissioner’s Deed to the following property:

The Southeast Quarter of the Northwest Quarter (SE1/4 NW1/4) of Section 34, Township 20 North, Range 1 West, and J acres, more or less, in the Northwest Quarter of the Southwest Quarter (NWl/lp SWl/h) of Section ,% Township 20 North, Range 1 West, being a strip of land North of the creek.

(Emphasis added.) Mr. Mobley challenges the Evanses’ ownership of the four-acre tract in the NW1/4 SW1/4 of Section 34.

At trial, Tony Hand testified that between 2000 and 2002, he fenced approximately 2.7 acres of the disputed four acres of property. The portion that Hand enclosed ran along the creek and had been cleaned up and cleared. He testified that his purpose behind putting up the fence around this area was to provide his cattle space to graze. He also testified that he put the fence along the creek and even down into the creek at one point, so that the cattle could drink from the creek and get into the water. He explained that when he put the fence up, he had no idea where the property line was located. So, at the time he built the fence, he had a discussion with Ken Powell, the previous owner of the Mobleys’ property, about the fence and the property line. He asked Mr. Powell if he had “a problem with where [he was] putting th[e] fence.” Mr. Hand testified that Mr. Powell’s response was that “[h]e didn’t care.” The fence was still there when he sold the property to the Evanses in 2004.

Mr. Mobley testified that when he purchased his 240 acres in 2000, there was no fence on the disputed four acres. He explained that he had hunted on the property in 1995, and “there was no fence there then either.” He testified that he had accused the Evanses |sof “putting up the fence all along.” Mr. Mobley realized there was a dispute over the four acres when he saw Mr. Evans “pushing it up with a dozer.” The men argued over the ownership of the four acres. However, Mr. Mobley dropped the issue after Evans told him that he had a survey of the property and after Mobley saw that his own deed contained an exception for four acres. It was not until Mr. Evans approached Mr. Mobley, asking him to give Evans a deed to the four acres, that Mr. Mobley realized that Mr. Evans had not had the property surveyed as he had previously said.

Mobley testified that he removed the fence in order to reclaim the four acres. He also moved the Evanses’ deer feeder over to their property, but left the tree stand in place. Mobley testified that Evans had also “dozed down” many trees on the four acres. The court entered a restraining order in November 2006, ordering both Mobley and Evans to stay off the property.

Jerry Evans testified that he was very familiar with the property before he purchased it (including the four acres in dispute) from Tony Hand, as Evans “grew .up there. All my life.” He stated that he was familiar with the area down by the creek and that he had a “big deer stand” in the middle of the forty acres, upon which he had hunting rights.

Evans testified that after he bought the property from Hand, he was unsure about the boundary of the four acres. He testified as to the following interaction with Mobley:

You could read the deed and it said four acres north of the creek, and so what I wanted to do is I was going to straighten that up and get it fixed in footage. I went to Mr. Mobley, and I asked him if he would help me fix the deed to where it would either read for what was fenced at the time, or like it was stated on the deed. And |4he said, “Well, I don’t want some land running all the way down through the middle of my place.” And I said, “Okay. I’ll switch over and I’ll take some up the side and square it.” He said he didn’t want to do that either. He said, “If you don’t have a deed, you don’t have a deed.” So, he wouldn’t take it.

Because Evans questioned the boundary line, and he wanted to place a new fence on the correct boundary line, he tried to reach a solution with Mobley. But, he testified that Mobley soon began to remove the old fencing on the disputed property. Evans testified that he asked Mob-ley to stop removing the fencing until they could get the issue resolved, but Mobley continued. Mobley “fenced it off to where [Evans’s] cattle couldn’t go in there.” Evans testified that Mobley also tore down Evans’s deer stand and “pushed it up into a brush pile.” Finally, Mobley took down Evans’s deer feeder and “threw it over the fence and ruined it.” Evans then had a survey done by DeClerk-Throesch of the disputed property and this lawsuit ensued.

Mr. Mobley alleges that the description of the four acres in the Evanses’ deed is a void description. After comparing the description in the Evanses’ deed to the 2006 DeClerk-Throesch survey and considering a 1964 quitclaim deed from the Internal Revenue Service, the trial court found that the description in the Evanses’ deed was not void and quieted title of the four acres to the Evanses. This appeal followed.

This court reviews equity cases de novo but does not reverse the trial judge’s findings unless they are clearly erroneous. Oliven v. Oliver, 70 Ark.App. 408, 19 S.W.3d 630 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Hedger Bros. Cement & Materials, Inc. v. Stump, 69 Ark.App. 219, 10 S.W.3d 926 (2000); Summers v. Dietsch, 41 Ark.App. 52, 849 S.W.2d 3 (1993). This court will give due regard to the opportunity of the trial judge to judge the credibility of the witnesses and the weight to be given their testimony. Jennings v. Burford, 60 Ark.App. 27, 958 S.W.2d 12 (1997).

In an action to quiet title, the plaintiff must recover on the strength of his own title and not on the weakness of the defendant’s title. Wyatt v. Ark. Game & Fish Comm’n, 360 Ark. 507, 202 S.W.3d 513 (2005) (citing Wyatt v. Wycough, 232 Ark. 760, 341 S.W.2d 18 (1960)). Thus, the Evanses must rely on their November 30, 2004 Commissioner’s Deed in order to prove ownership of the four acres.

Appellant contends that the “legal description renders the deed void as it pertains to the four acre tract, as it is impermissibly vague and could describe any four acre portion of land ‘north of the creek.’ ” We agree. A deed will not be held void for uncertainty of description if by any reasonable construction it can be made available. Wyatt, 360 Ark. at 515-16, 202 S.W.3d at 519 (citing Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974)). A description of land is sufficient if the descriptive words in the deed furnish a key of identifying the land conveyed. Id. (citing Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789 (1939)). A deed is not void for uncertainty if the land can be located by the description used. Id. (citing Tolle v. Curley, 159 Ark. 175, 251 S.W. 377 (1923)).

Here, the trial court found that the description in the Evanses’ deed was not void. | sin so finding, the trial court stated that the four-acre tract is the same parcel shown on the 2006 DeClerk-Throesch survey and that the description in the Ev-anses’ deed is the same as the description in the 1964 quitclaim deed from the Internal Revenue Service. However, the legal description contained in the 2004 Commissioner’s Deed must be sufficient to identify the location of the disputed property. See Wyatt v. Ark. Game & Fish Comm’n, 360 Ark. 507, 202 S.W.3d 513 (2005) (holding that the legal description in the AGFC’s deed was not void for vagueness because it could be read and interpreted to identify the disputed property).

Our courts have held that the description in a deed is void where it is so vague and indefinite that it in no way identifies the land. American Portland Cement Co. v. Certain Lands, 179 Ark. 553, 17 S.W.2d 281 (1929) (citing Lonergan v. Baber, 59 Ark. 15, 26 S.W. 13 (1894); Buckner v. Sugg, 79 Ark. 442, 96 S.W. 184 (1906); Brinkley v. Halliburton, 129 Ark. 334, 196 S.W. 118 (1917)). In the present case, it is impossible to determine the location or to specifically identify the disputed four acres of property based on the property description in the Evanses’ deed. Neither the 2006 DeClerk-Throesch survey nor the 1964 quitclaim deed from the Internal Revenue Service are helpful in identifying the land. The 1964 quitclaim deed provides almost no additional description than the description in the Ev-anses’ deed. A description of land is sufficient if the descriptive words in the deed furnish a key of identifying the land conveyed. Wyatt, supra (citing Davis v. Burford, 197 Ark. 965, 125 S.W.2d 789 (1939)). Here, there is no key. The description is not sufficient to identify which four acres of the land were conveyed. Our courts have held that a “part” description or an indefinite description conveys no title. See Browning v. Hicks, 243 Ark. 394, 395-96, 420 S.W.2d 545, 547 (1967) (citing Price v. Price, 207 Ark. 804, 182 S.W.2d 879 (1944); Clem v. Mo. Pacific R.R. Co., 223 Ark. 887, 269 S.W.2d 306 (1954); Peer v. Plant, 238 Ark. 92, 378 S.W.2d 663 (1964); Thomason v. Abbott, 217 Ark. 281, 229 S.W.2d 660(1950)). Moreover, an indefinite description will not support an action in ejectment or quiet title. See Browning, supra.

Arkansas law clearly states that the legal description contained in a deed must sufficiently describe a specific tract or property to convey title. Because there is not a sufficient legal description in the Evanses’ deed, we reverse the trial court’s decision to quiet title based on the deed. We also remand the case to the trial court for consideration of the claim of acquiescence, which was not ruled on by the trial court.

Reversed and remanded.

ROBBINS and KINARD, 33., agree.