author: ANNABELLE CLINTON IMBER, Justice.

text:
    2009 Ark. 224
    Herman BROCK, Appellant, v. Tab TOWNSELL, Appellee.
    No. 08-807.
    Supreme Court of Arkansas.
    April 23, 2009.

      James F. Lane, for appellant.
    Michael L. Murphy, Conway City Attorney and Kurt J. Meredith, Deputy City Attorney, for appellee.
   ANNABELLE CLINTON IMBER, Justice.

| Appellant Herman Brock appeals an order of the Faulkner County Circuit Court dismissing his complaint and granting summary judgment in favor of Appel-lee Tab Townsell, Mayor of the City of Conway, Arkansas. On appeal, Brock argues that the circuit court erred in finding, as a matter of law, that the land-use ordinances of the City, adopted pursuant to Arkansas Code Annotated sections 14-56-401-14-56^26 (Repl.1998 & Supp.2007), do not conflict with the statutory authority of the Arkansas Department of Health, pursuant to Arkansas Code Annotated section 20-17-903 (Repl.2005), to grant or deny permits for cemeteries. Brock also challenges the circuit court’s finding that section 20-17-903 is subject to the properly adopted land-use ordinances of Arkansas cities. This appeal presents a significant issue needing clarification of the law and a substantial question of law | gconcerning the interpretation of an act of the General Assembly. Therefore, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — 2(b)(5) and (6) (2008). We find no error and affirm.

In September of 1994, the City of Conway adopted a zoning ordinance, Ordinance 0-94-54, that requires the issuance of a conditional-use permit in order for burial facilities, including cemeteries, to be located on property in an agricultural zoning district. On July 21, 2003, Brock, who resided in Conway on a piece of real property in an agricultural zoning district, applied to the Conway Planning Commission for a conditional-use permit so that he might establish a family cemetery on his property. Brock’s first request was withdrawn, and his second request was unanimously denied by the Commission on October 20, 2003. Brock appealed to the Conway City Council, which voted 7-1 to deny his request on November 11, 2003. Brock did not appeal from this decision to the circuit court.

In the meantime, on July 30, 2003, Brock submitted the following handwritten request to Townsell: “I, Herman Brock, am making a request to the Mayor, Tab Townsell, of Conway, AR, for a family cemetery and to have it registered.” On August 1, 2003, the Chief Engineer at the Arkansas Department of Health notified Townsell by letter that an engineer for the Department had inspected the proposed location and reviewed the plans for the cemetery, neither of which indicated that a public-health problem would result from the construction of the cemetery. The Department recommended approval of Brock’s request and included blank permit forms for Townsell’s completion, if he “concuifred] in the [..¡cemetery request.” Townsell did not grant Brock’s request.

Brock filed a complaint against Townsell in the circuit court on July 23, 2004. He sought a mandatory injunction directing Townsell to grant the permit and argued that, pursuant to section 20-17-903, Town-sell had no discretion to deny his request. Brock amended his complaint on October 19, 2004, to add a claim for declaratory judgment. Townsell filed a motion for summary judgment, asserting that section 20-17-903 has no application to cities of the first class such as Conway. Brock filed a response and counter-motion for summary judgment, contending that the enactment of section 20-17-903 repealed by implication Arkansas Code Annotated section 14-54-803 (Repl.1998), which empowers cities of the first class to prohibit the burial of the dead within their limits. Townsell responded, arguing that section 20-17-903 has no application to cities that have adopted zoning ordinances regulating the burial of the dead in accordance with sections 14-56-401 through 14-56^426. Brock replied and asserted that the City’s adoption of the zoning ordinance could not be deemed to have repealed section 20-17-903. The circuit court did not hold a hearing on the summary-judgment motions.

On March 24, 2007, the circuit court issued a letter opinion finding that the land-use ordinances enacted by the City in accordance with sections 14-56-401 through 14-56-426 do not conflict with the Health Department’s authority to grant or deny applications for cemeteries. Specifically, “the Arkansas Health Department’s findings are subject to properly adopted land use ordinances of Arkansas cities.” A judgment and order, filed April 28, |42008, memorialized these conclusions. In that order, the circuit court granted Townsell’s summary-judgment motion, denied Brock’s summary-judgment motion, and dismissed the complaint. Brock filed a timely notice of appeal.

As a preliminary matter, we must address our jurisdiction over this appeal. Townsell argued below that the circuit court lacked subject-matter jurisdiction over Brock’s claims due to Brock’s failure to timely and properly appeal from the Conway City Council’s decision to deny his permit application. If the circuit court was without subject-matter jurisdiction, this court would likewise be without jurisdiction to hear the appeal. Clark v. State, 362 Ark. 545, 546, 210 S.W.3d 59, 60 (2005) (citing Priest v. Polk, 322 Ark. 673, 679, 912 S.W.2d 902, 905 (1995)). This issue is not fully developed in the parties’ briefs on appeal, but subject-matter jurisdiction is an issue that can and indeed must be raised by this court sua sponte. Viravonga v. Samakitham, 372 Ark. 562, 568, 279 S.W.3d 44, 49 (2008).

Arkansas Code Annotated section 14-56-425 (Repl.1998), captioned “Appeals to circuit court,” is part of a chapter governing municipal building and zoning regulations and is part of a subchapter governing municipal planning. It provides as follows, in its entirety: Ark.Code Ann. § 14-56-425. We have interpreted section 14-56-425 to incorporate the | r,appeal procedure found in Arkansas District Court Rules 8 and 9. Combs v. City of Springdale, 366 Ark. 31, 33, 233 S.W.3d 130, 132 (2006) (citing Ingram v. City of Pine Bluff, 355 Ark. 129, 133 S.W.3d 382 (2003)). In particular, Rule 9 provides that an appeal to circuit court shall be taken by filing a record of the proceedings had in the district court. District Ct. R. 9(b) (2003). Alternatively, an appellant may perfect an appeal by filing an affidavit showing that he or she has requested the clerk of the district court to prepare and certify the record and that the clerk has neglected or refused to do so. Id. § (c). All appeals to circuit court must be filed in the office of the clerk of the particular circuit court having jurisdiction within thirty days from the date of entry of judgment. Id. § (a). The filing requirements of Rule 9 are mandatory and jurisdictional, and failure to comply prevents the circuit court from acquiring subject-matter jurisdiction. Combs v. City of Springdale, 366 Ark. at 34, 233 S.W.3d at 133.

In addition to any remedy provided by law, appeals from final action taken by the administrative and quasi-judicial agencies concerned in the administration of this subchapter may be taken to the circuit court of the appropriate county where they shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.

This court has previously held that Rule 9 applies to city council and planning | (¡commission resolutions via section 14-56-425. Ingram v. City of Pine Bluff, 355 Ark. at 134, 133 S.W.3d at 385. We have further held that section 14-56-425 applies to appeals of actions of a city council when the act complained of is the city’s applieation of its zoning regulations. Green v. City of Jacksonville, 357 Ark. 517, 521, 182 S.W.3d 124, 126 (2004) (citing City of Jonesboro v. Vuncannon, 310 Ark. 366, 837 S.W.2d 286 (1992)).

It is undisputed that Brock did not perfect an appeal from the City Council to the circuit court within the thirty-day time limitation of Rule 9. However, Brock suggested below that his complaint, which sought declaratory and injunctive relief, was not intended as an appeal of the City Council’s decision. This court has previously affirmed grants of summary judgment and judgment on the pleadings for failure to comply with Rule 9, even when the complaint filed in circuit court seeks declaratory and injunctive relief and therefore does not appear to be a direct appeal of a city council’s decision. See Green v. City of Jacksonville, supra; Ingram v. City of Pine Bluff, supra. In Green, the Jacksonville City Council voted to approve the appellant’s proposed plat with the condition that he would construct sidewalks in accordance with an ordinance requiring sidewalks in all subdivisions. 357 Ark. at 519, 182 S.W.3d at 125. The appellant filed an action against the city in circuit court, seeking a declaration that the city council’s action was void and an injunction to stop the city council from forcing him to construct sidewalks. Id. This court affirmed the circuit court’s grant of summary judgment in favor of the city on the basis that subject-matter jurisdiction was lacking due to the appellant’s failure to appeal within thirty days. Id. at 519-20, 182 S.W.3d at 125-26. We rejected the appellant’s argument that his complaint was not an appeal of the substance of the city council’s decision, but rather an assertion that the city council had acted beyond its statutory and procedural authority. Id. at 520, 182 S.W.3d at 126.

Under the Green rationale, Brock may not circumvent the requirements of Rule 9 by seeking declaratory and injunctive relief if his complaint is actually an appeal of the City Council’s decision. We conclude, however, that Brock has abandoned the avenue of relief available to him from the City Council and subsequent appeal of its decision. Instead, he sought relief from Townsell in accordance with section 20-17-903, making section 14-56-425 and Rule 9 inapplicable. Section 14-56-425 governs appeals from final action taken by “the administrative and quasi-judicial agencies” involved in the administration of municipal planning. Brock’s complaint filed in circuit court was not an appeal of final action taken by the City Council. It was, instead, a complaint against Townsell based on his alleged failure to comply with a mandatory duty. Therefore, section 14-56-425 does not apply. Brock was not required to comply with the directives of Rule 9, and the circuit court had subject-matter jurisdiction of his claims.

Turning to the merits of the appeal, we note that Brock makes four distinct arguments in support of the proposition that the circuit court erred: 1) section 20-17-903 is applicable to cities of the first class, such as Conway; 2) there is an irreconcilable conflict between section 20-17-903 and the various statutes authorizing cities to enact zoning |sordinances and regulate the burial of the dead, such that the doctrine of repeal by implication applies; 3) under article 12, section 4 of the Arkansas Constitution, a city’s land-use ordinance cannot supersede an Arkansas statute on the same subject; 4) if the Department of Health recommends approval of a cemetery request, the mayor is without discretion to deny it. Each of these arguments is addressed individually below.

The standard of review used by this court in reviewing a grant of summary judgment is well settled. Summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law. Sykes v. Williams, 373 Ark. 236, 239-40, 283 S.W.3d 209, 213 (2008). Once a moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. at 240, 283 S.W.3d at 213. After reviewing undisputed facts, summary judgment should be denied if, under the evidence, reasonable minds might reach different conclusions from those undisputed facts. Id. On appeal, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion leave a material question of fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review is not limited to the pleadings, as we also focus on the affidavits and other documents filed by the parties. Id.

|flWe review issues of statutory construction de novo. Id. It is for this court to decide what a statute means, and we are not bound by the circuit court’s interpretation. Id. The basic rule of statutory construction is to give effect to the intent of the General Assembly. Id. In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Our court construes the statute so that no word is left void, superfluous, or insignificant, and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to the rules of statutory construction. Id. However, we will not give statutes a literal interpretation if it leads to absurd consequences that are contrary to legislative intent. Id. We will accept a circuit court’s interpretation of the law unless it is shown that the court’s interpretation was in error. Id. Our court seeks to reconcile statutory provisions to make them consistent, harmonious, and sensible. Id.

Applicability of Section 20-17-903

While the circuit court made no specific ruling on this issue, Brock contends that section 20-17-903 applies to cities of the first class. We address the argument because the applicability of section 20-17-903 to first-class cities was relevant to Townsell’s defense, and because this court may affirm a circuit court when it has reached the right result, even though it has announced the wrong reason. Alphin v. Alphin, 364 Ark. 332, 341, 219 S.W.3d 160, 166 (2005).

|, ^Section 20-17-903 is part of a title of the Arkansas Code governing the public health and welfare and is part of a chapter dealing with “Death and Disposition of the Dead.” It provides that a person proposing to locate a cemetery or to extend the boundaries of an existing cemetery shall make written application to the county judge or mayor “of an incorporated city or town,” depending on whether the cemetery or extension is to be located in the jurisdiction of a county or municipality. Ark.Code Ann. § 20-17-903(a). Before acting upon the application, the county judge or mayor shall refer it to the Arkansas Department of Health for investigation “from a sanitary standpoint.” Id. § 20-17-903(b). The Department “shall take into consideration the proximity of the proposed cemetery or extension of a cemetery to human habitations, the nature of the soil, the drainage of the ground, the danger of pollution of valuable springs or streams of water, and such other conditions as would bear upon the situation.” Id, Once the investigation is completed, the Department is to submit a report to the county judge or mayor “and either approve or disapprove the application.” Id. § 20-17-903(c). Having received the report, the county judge or mayor, “as recommended by the division, shall either grant or deny the application.” Id. § 20-17-903(d). If the application is granted, the county judge or mayor is to issue a permit, which shall be recorded in the office of the county judge or mayor. Id, § 20-17-903(e) & (f).

As Townsell points out, section 20-17-903 refers to “an incorporated city or town.” Id. § 20-17-903(a). He asserts that it does not, therefore, apply to first-class cities. The Impertinent question is whether a city of the first class, such as Conway, is also considered an incorporated city. In 1875, the General Assembly enacted laws governing the incorporation, organization, and government of municipal corporations. 1875 Ark. Acts 1. Municipal corporations were “divided into the classes following: Cities of the first, and cities of the second-class, and incorporated towns.” Id, § 1. In addition:

All corporations which existed when the present constitution took effect for the purpose of municipal government, and described or denominated in any law then in force, are hereby organized into cities of the first and second-class, as the case may be, and incorporated towns, with the territorial limits respectively prescribed or belonging. All municipal corporations having over five thousand inhabitants shall be deemed cities of the first-class. All cities having twenty-five hundred inhabitants and less than five thousand inhabitants shall be deemed cities of the second-class; all others shall be incorporated towns, and shall be governed respectively by the provisions of this act.

Id. § 5. These provisions are now codified at Arkansas Code Annotated sections 14-37-101 through 14-37-103 (Repl.1998). According to the plain language of section 14-37-103, there are only three types of municipal corporations. Simply put, all incorporated cities must fall within one of two discrete categories, based upon population: cities of the first class or cities of the second class. This rationale is consistent with our previous interpretations of various statutes using the phrase “incorporated city or town,” which we 1 iahave taken to include all cities. See, e.g., Dena Constr. Co., Inc. v. Burlington Northern R.R., 297 Ark. 547, 764 S.W.2d 419 (1989); Little River County Bd. of Educ. v. Ashdown. Special Sch. Dist., 156 Ark. 549, 247 S.W. 70 (1923); Kansas City Southern Ry. Co. v. City of Mena, 123 Ark. 323, 185 S.W. 290 (1916). Accordingly, Brock is correct in contending that section 20-17-903 applies to cities of the first class.

Further support for this conclusion is contained in another provision of Act 1 of 1875, which sets forth a method for inhabitants of a part of a county, not embraced within the limits of a city or incorporated town, to “be organized into a city or town.” 1875 Ark. Acts 1, § 35. The language of Act 1 refers primarily to the creation of an incorporated town, but the statutes as they are now codified often refer to both cities and incorporated towns. See Ark.Code Ann. § 14-38-101-14-38-114 (Repl.1998 & Supp.2007). For example, section 14-38-104 provides that, if a county court finds that a petition for incorporation should be granted, the court shall “make out and endorse on the petition an order to the effect that the city or incorporated town as named and described in the petition may be organized.” Id. § 14-38-104(a) (Supp. 2007) (emphasis added). This section as originally enacted by the General Assembly in 1875 referred instead to an order “to the effect that the incorporated town as named and described in the petition may be organized.” 1875 Ark. Acts 1, § 37. In addition, Act 1237 of 2005 added section 14-38-115, which provides an alternative method of incorporation. 2005 Ark. Acts 1237. Section 14-38-115 states that the inhabitants of a part of a county not embraced within the limits of a city or | ^incorporated town may apply to the county judge of the proper county to call for an election “on the issue of incorporating a city or town ” and for electing municipal officials. Ark. Code Ann. § 14-38-115(a)(1) (Supp.2007) (emphasis added). As these statutes demonstrate, the legislature has often referred to cities as incorporated. Pursuant to sections 14-38-101 through 14-38-108 and section 14-38-115, cities are incorporated in the same manner as towns.

Moreover, as Brock points out, various statutes utilize the phrase “incorporated city or town” to refer to all municipal corporations: Arkansas Code Annotated section 17-25-301(b) (requiring proof of a contractor’s license when applying to an authority of any incorporated city or town charged with the duty of issuing permits when the work to be done is twenty thousand dollars or more); section 18-15-601(d) (providing that no municipal corporation exercising eminent-domain power shall provide water service to any existing customer of any incorporated city or town without approval of the incorporated city or town); section 24-ll-422(c) (providing additional retirement pay to members of police departments of cities that are divided by a street state line from an incorporated city or town); section 26-1-101(10) (defining, for taxation purposes, towns and cities as all cities or towns, incorporated or not, and all blocks, lots, or parts thereof assessed for taxation as such, whether they are part of an incorporated city or town or not). These examples support Brock’s assertion that there is no meaningful distinction between incorporated cities and cities of the first and second class.

114TownseII nonetheless argues that section 20-17-903 must be read in conjunction with section 14-54-803, which provides that “[c]ities of the first and second class and incorporated towns shall have the power to prohibit the burial of the dead within their limits.” Ark.Code Ann. § 14-54-803(a). Townsell contends that these two statutes cover the same subject matter and that section 14-54-803 is more specific than section 20-17-903 and therefore controls. See Ark. Soil & Water Conservation Comm’n v. City of Bentonville, 351 Ark. 289, 300, 92 S.W.3d 47, 54 (2002) (noting that statutes relating to the same subject are said to be in pari materia and should be read in a harmonious manner, if possible). According to Townsell’s interpretation, section 14-54-803 and section 20-17-903 can be read harmoniously; section 20-17-903 applies to counties and incorporated cities and towns that are not of the first and second class, while section 14-54-803 applies to cities of the first or second class. The problem with this argument is that section 14-54-803 applies to all cities and towns, not just cities of the first or second class. See Ark.Code Ann. § 14-54-803(a). When section 14-54-803 was first enacted by the General Assembly in 1901, it applied only to cities of the first and second class. 1901 Ark. Acts 102, § 1. A 1929 amendment changed the statute to apply to “[c]ities of the first and second class and incorporated towns.” 1929 Ark. Acts 202, § 1. Section 14-54-803 therefore applies to all municipal corporations. Accordingly, it is no more specific than section 20-17-903. Both statutes are applicable to all three types of municipal corporations.

Repeal by Implication

1 lflNext, Brock suggests that there are irreconcilable differences between section 20-17-903, on the one hand, and sections 14-54-802, 14-54-803, and 14-56-401 through 14-56-426 (specifically 14-56-116), on the other hand, such that the doctrine of repeal by implication applies. Section 14-54-802 provides that municipal corporations have the power to regulate the burial of the dead, provide places for interment outside the corporate limits, and prevent interment within the corporate limits. Ark.Code Ann. § 14-54-802(a) (Repl.1998). They may impose proper fines and penalties and shall also have the power to cause bodies interred contrary to the prohibition to be taken up and buried outside the municipal limits. Id. § 14-54-802(b). Sections 14-56-401 through 14-56-426 provide cities of the first and second class and incorporated towns with the power to adopt and enforce plans for the development of the municipality. See id. § 14-56-402 (Repl. 1998). These statutes are to be construed liberally. Id. § 14-56-401 (Repl.1998). Section 14-56-416 specifically authorizes city planning commissions to submit recommended zoning ordinances to city councils and other equivalent legislative bodies. Id. § 14 — 56—416(a)(1) (Repl. 1998).

The basis of Brock’s repeal-by-implication argument is that cities are given discretion regarding burial in accordance with the statutes authorizing the adoption of land-use ordinances and empowering municipalities to regulate burial within their limits; however, under section 20-17-903, as interpreted by this court in Assembly of God Church, Lambert v. Ford, 255 Ark. 132, 499 S.W.2d 273 (1973), cities are afforded no discretion. According to Brock, this constitutes an irreconcilable conflict, and because section 20-17-903 was more 11firecently enacted, it repeals by implication the other statutes at issue.

This court has outlined its statutory-construction rules regarding repeal by implication on numerous occasions. See Doe v. Baum, 348 Ark. 259, 274, 72 S.W.3d 476, 484 (2002). The fundamental rule of the doctrine is that a repeal by implication is not favored and is never allowed except when there is such an invincible repugnancy between the provisions that both cannot stand. Id. at 274-75, 72 S.W.3d at 484. Repeal by implication is not a favored device in our interpretation of statutes, and we must construe all statutes relating to the same subject matter together. Id. at 275, 72 S.W.3d at 484-85.

There are two situations in which a repeal by implication may occur. The first is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the latter one, which governs the subject matter so far as relates to the conflicting provisions, and to that extent only. Uilkie v. State, 309 Ark. 48, 52-53, 827 S.W.2d 131, 133 (1992). Where there are two acts on the same subject, the rule is to give effect to both, if possible; but, if the two are repugnant in any of their provisions, the latter act, without any repealing clauses, operates to the extent of the repugnancy as a repeal of the first. Id. at 53, 827 S.W.2d at 134. The second situation is that a repeal by implication is accomplished where the legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new. 117/d Thus, even where two acts are not in express terms repugnant, if the latter act covers the whole subject of the first and embraces new provisions, plainly showing that it was intended as a substitute for the first, it will operate as a repeal of that act. Id. Brock’s argument is of the first type; therefore, the question for our consideration is whether there are irreconcilable conflicts between section 20-17-903 and the above-cited statutory provisions affording discretion to municipalities.

Section 20-17-903 was first enacted in 1929 as section 1 of Act 204, “An Act to Better Protect the Public Health of the Citizens of the State, and for Other Purposes.” 1929 Ark. Acts 204. Act 204 also provided that all cemeteries shall be registered with the county judge or mayor, and that a copy of the registration shall be filed with the State Board of Health. Id. § 2. This provision is now codified as Arkansas Code Annotated section 20-17-901 (Repl.2005). Additionally, Act 204 provided that it shall be unlawful to bury a dead body outside of a registered cemetery, and that the person in charge of a cemetery shall keep a correct record, on a form prescribed by the State Board of Health, of each body buried therein. 1929 Ark. Acts 204, § 3. This provision is now codified as Arkansas Code Annotated section 20-17-902 (Repl.2005). Act 204 was amended in 1985 to change all references to the State Board of Health to reflect the agency’s new name, the State Department of Health. 1985 Ark. Acts 1014.

Section 14-54-802 was first enacted by the General Assembly in 1875. 1875 Ark. Acts 1, § 15. As noted earlier, section 14-54-803 was first enacted in 1901, as an act to | ^“authorize the removal of dead from abandoned cemeteries and for other purposes.” 1901 Ark. Acts 102. Section 14-54-803 was amended in 1929 to give identical authority to incorporated towns, in addition to cities of the first and second class. 1929 Ark. Acts 202. Therefore, section 20-17-903 was indeed enacted later than both section 14-54-802 and section 14-54-803. However, section 20-17-903 was originally enacted in the same year, and approved on the same day, that section 14-54-803 was amended. This court has held that the rationale requiring reconciliation of statutes on the same general subject matter when possible applies even more strongly to acts passed during the same legislative session. Uilkie v. State, 309 Ark. at 52, 827 S.W.2d at 133. “This court has also held that, where two acts were under consideration by the General Assembly at the same time, and were passed at the same session, this strengthens the presumption that there was no intention to repeal one by the other.” Id. Accordingly, Brock’s repeal-by-implication argument fails with respect to section 14-54-803; the legislature cannot be deemed to have intended to repeal section 14-54-803 by its enactment of section 20-17-903, when it amended section 14M54-803 in the same session.

Section 14-56-416 was first enacted by the General Assembly in 1957, as part of an act “to Provide for the Creation of City Planning Commissions in Cities of the First and Second Class and to Authorize Them to Provide for City Planning, Zoning, Sub-Division Control and for Other Purposes.” 1957 Ark. Acts 186, § 5. Section 5 of Act 186 was amended in 1965 to include a provision relating to the control of land along navigable [^streams. 1965 Ark. Acts 134, § 1. Section 14-56-416 was thus enacted later in time than section 20-17-903, although section 20-17-903 was more recently amended. However, the 1985 amendment to section 20-17-903, changing all references to the State Board of Health to reflect the agency’s new name (the State Department of Health), was clearly not substantive. Therefore, if the repeal-by-implication doctrine were applicable here, section 20-17-903 would be the provision repealed.

In any event, we hold that there are no irreconcilable conflicts between the statutes at issue. We first note that the statutes have very different purposes and accomplish very different tasks. Sections 14-56-401 through 14-56-426 provide municipalities with the power to conduct land-use planning, establish planning commissions, adopt zoning ordinances, and enforce land-use regulations. The purpose of providing such authority is to allow municipalities to “promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity, and general welfare of the citizens.” Ark.Code Ann. § 14-56-403(a) (Repl.1998). Section 14-56-403 provides a non-exclusive list of permissible purposes of municipal planning:

(1) Efficiency and economy in the process of development;
(2) The appropriate and best use of land;
(3) Convenience of traffic and circulation of people and goods;
(4) Safety from fire and other dangers;
(5) Adequate light and air in the use and occupancy of buildings;
(6) Healthful and convenient distribution of population;
(7) Good civic design and arrangement;
(8) Adequate public utilities and facilities; and
(9) Wise and efficient expenditure of funds.

12i)Id. § 14-56-403(b). Similarly, sections 14-54-802 and 14-54-803 are included in the chapter dealing with municipal powers. Like sections 14-56-401 through 14-56-426, they provide municipalities with the authority to regulate certain activities within their limits.

Conversely, section 20-17-903 provides a mechanism for a county or city to ensure public-health compliance before approving the construction or expansion of a cemetery. Section 20-17-903 makes clear that the Health Department’s review is limited to a “sanitary standpoint,” taking into consideration such factors as the proximity of the proposed cemetery or expansion to human habitations, the nature of the soil, the drainage of the ground, and the danger of pollution of valuable springs or streams of water. Id. § 20-17-903(b). Sections 20-17-901 and 20-17-902, enacted simultaneously with section 20-17-903, also reflect the public-health concerns inherent in the statutory framework. They require that a copy of a cemetery’s registration be filed with the Department of Health and that the person in charge of a cemetery keep records as prescribed by the Department of Health. Id. §§ 20-17-901-20-17-902. In sum, the essential purpose of section 20-17-903 is not to provide more power or authority to municipalities.

Furthermore, there is no irreconcilable conflict between the statutes if section 20-17-903 is interpreted in accordance with the circuit court’s finding. Specifically, if section 20-17-903 is viewed as being “subject to” the properly adopted land-use ordinances of cities, then the statutes can be construed harmoniously. Under our well-settled rules of statutory interpretation, this result is required. See, e.g., Doe v. Baum, 348 Ark. at 274-75, 72 S.W.3d at 484. For these reasons, we hold that the enactment of section 20-17-903 did not impliedly repeal sections 14-54-802, 14-54-803, and 14-56-401 through 14-56-426.

Effect of Zoning Ordinance

Brock next argues that, under article 12, section 4 of the Arkansas Constitution, a land-use ordinance enacted by a city council cannot supersede an Arkansas statute on the same subject. This proposition is correct: “No municipal corporation shall be authorized to pass any laws contrary to the general laws of the state.” Ark. Const. art. 12, § 4. However, as Townsell points out, the ordinance at issue here was not contrary to the general laws of the state; instead, it was enacted pursuant to state law, specifically Arkansas Code Annotated section 14-56-416. We have previously held that a city ordinance will not be held to conflict with a state statute when it is possible to read them in a harmonious manner. City of Barling v. Fort Chaffee Redevelopment Auth., 347 Ark. 105, 116, 60 S.W.3d 443, 449 (2001) (citing Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986)). We conclude that Ordinance 0-94-54 may be read harmoniously with section 20-17-903. In short, municipalities that have passed a relevant zoning ordinance in accordance with section 14-56-416 may regulate the construction and expansion of cemeteries pursuant to the ordinance. Municipalities that have not done so have only the benefit of sections 20-17-903, 14-54-802, and 14-54-803.

Mayoral Discretion Under Section 20-17-903

For his final argument, Brock contends that, due to the Health Department’s ^recommended approval of his permit application, Townsell is without discretion to refuse the permit under Assembly of God Church, Lambert v. Ford, supra. In that case, this court affirmed the circuit court’s ruling ordering a county judge to issue a permit in accordance with the predecessor to section 20-17-903. 255 Ark. at 133-34, 499 S.W.2d at 273-74. We held that “the county judge ha[d] no discretion under the statute to refuse a permit once the State Health Department ha[d] given its approval.” Id. at 134, 499 S.W.2d at 274.

We decline to address this argument, because a holding on this point would not affect the outcome of the instant appeal. As we have indicated, the authority of the Department of Health under section 20-17-903 is subject to the land-use ordinances enacted pursuant to section 14-56-416. The Conway City Council, in accordance with Ordinance 0-94-54, has declined to grant Brock a conditional-use permit for the construction of a cemetery on his property. Brock has failed to appeal that decision to the circuit court. Therefore, even if Townsell had no discretion under section 20-17-903 to refuse a permit once the Health Department gave its approval, such a permit would still be subject to Conway’s zoning ordinances. Thus, regardless of the outcome under section 20-17-903, the Conway City Council’s denial of Brock’s request for a conditional-use permit precludes the establishment of a cemetery on his property.

For the reasons stated above, we affirm the circuit court’s grant of summary judgment in favor of Townsell.

Affirmed.

      . Formerly known as the Inferior Court Rules, the District Court Rules were revised and renamed effective January 1, 2005.

      . Substantial amendments have been made to Rule 9, the most recent of which became effective January 1, 2009, and completely changed the method for perfecting an appeal to circuit court. In re Ark. Dist. Court Rules; Rules of Civil Procedure; Rules of Evidence; Rules of the Supreme Court and Court of Appeals; and Rules of Appellate Procedure-Civil, 374 Ark. App'x - (Oct. 9, 2008) (per curiam). However, because an attempt to appeal from the Conway City Council's decision in this case would have occurred in November or December of 2003, the version of Rule 9 applicable to this case is a former version. See Ark. State Univ. v. Prof'l Credit Mgmt., Inc., 2009 Ark. 153, 299 S.W.3d 535. Moreover, because Brock failed to perfect an appeal within the thirty-day period provided for in each version of Rule 9, the outcome under either version would be the same.

      . The population limits have changed since the original enactment. Under the current version of the statute, municipal corporations having over two thousand five hundred inhabitants are cities of the first class, and municipal corporations having five hundred inhabitants or more and fewer than two thousand five hundred inhabitants are cities of the second class. All others are incorporated towns. Ark.Code Ann. § 14-37-103(a).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 283
    In re F. Scott STRAUB, Arkansas Bar No. 98019.
    No. 09-404.
    Supreme Court of Arkansas.
    May 14, 2009.
   PER CURIAM.

JjF. Scott Straub was granted the privilege of practicing law in the State of Arkansas by this Court in 1998. On April 20, 2009, the Arkansas Supreme Court Committee on Professional Conduct (the Committee) filed a petition to reciprocally disbar Straub. The petition stated that on March 9, 2009, the Office of Professional Conduct received notification that Straub had been permanently disbarred from practicing law in the State of Louisiana and that, pursuant to Section 14(A). of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (the Procedures), the disbarment of any person from the practice of law in any other state shall operate as a disbarment of such person from the practice of law in this State under any license issued to such person by the Arkansas Supreme Court prior to his or her disbarment in such other state. The petition also noted that Straub was given full notice of all Louisiana proceedings [2and had ample opportunity to defend himself. On April 29, 2009, an amended petition to reciprocally disbar was filed, which stated that Straub had also been given notice of the Committee’s action directing the filing of the petition for reciprocal disbarment by sending notice to Straub’s address of record with the Clerk and by telephone on March 27, 2009.

Also on April 29, 2009, Straub filed a response to the petition to reciprocally disbar, asserting that he was not given proper notice of the formal charges filed against him in Louisiana; a motion for an evidentiary hearing on the petition to reciprocally disbar; a motion for stay pending appeal of his Louisiana disbarment; and a petition for writ of mandamus. The Louisiana Office of Disciplinary Counsel filed two sets of formal charges against Straub, but he contends that he received notice only of the first set of formal charges, and was unable to defend himself against those allegations due to life-threatening health problems and extreme financial hardship from medical expenses. Straub contends that the time for appeal of his Louisiana disbarment has not run, that he is making all possible efforts to pursue that appeal, and he urges this court to grant a stay of these proceedings pending the result of that appeal. We find merit in Straub’s argument and hereby grant a stay in these proceedings and remand the matter to the Committee, pending the result of the Louisiana appeal. We deny his request for an evidentiary hearing. We also deny his petition for writ of mandamus without prejudice.

| sMotion to Stay granted; remanded to Arkansas Supreme Court Committee on Professional Conduct.


author: JIM GUNTER, Justice.

text:
    2009 Ark. 277
    WESTERN SIZZLIN CORPORATION and Western Sizzlin of Little Rock, Inc., Appellants, v. PARKS LAND COMPANY, LLLP and Parks Management Corporation, Appellees.
    No. 08-1199.
    Supreme Court of Arkansas.
    May 14, 2009.
    Rehearing Denied June 25, 2009.

      James, Carter and Coulter, PLC, by: John Coulter; and Wilson, Engstrom, Co-rum & Coulter, by: Nate Coulter, Little Rock, for appellants.
    Friday, Eldredge & Clark, LLP, by: Martin A. Kasten, Little Rock, for appel-lees.
   JIM GUNTER, Justice.

| ,This appeal arises from a jury verdict in the amount of $689,526 in favor of Ap-pellees Parks Land Company, LLLP, and Parks Management Corporation (collectively “Parks”) against Appellants Western Sizzlin Corporation and Western Sizzlin Stores of Little Rock, Inc. (collectively “WSC”). We reverse and remand for a new trial.

WSC entered into a lease agreement with Parks, wherein Parks leased four Western Sizzlin restaurants including their equipment to WSC. The lease agreement provided that, upon termination of the lease, WSC “shall surrender the Leased Property to [Parks] in the same condition as existed on the commencement date hereof, broom-cleaned, ordinary and normal wear and tear excepted.” Parks filed a complaint on September 22, 2006, claiming [2that WSC did not operate all of the restaurants continuously during the term of the lease, permitted some of the leased premises to fall into a state of disrepair, improperly disposed of some of the equipment owned by Parks, and failed to clean and maintain other equipment and personal property. The jury found in favor of Parks and awarded $689,526 in damages for its breach-of-contract claim. On March 14, 2008, WSC filed a motion for judgment notwithstanding the verdict, and in the alternative, a motion for a new trial. In its motions, WSC argued that Parks’s questioning of its CFO about whether it hired an expert who did not testify was improper. Because the circuit court did not rule on the motions, they were deemed denied. WSC filed a notice of appeal on May 9, 2008.

For its first point on appeal, WSC asserts that the circuit court erred in permitting Parks to refer to WSC’s engagement of a non-testifying expert. Specifically, WSC contends that reference to a non-testifying expert is prohibited by Arkansas case law as well as attorney-client and work-product privileges. WSC also asserts that it suffered prejudice as a result of the reference made by Parks regarding the non-testifying expert. Parks responds, asserting that the circuit court did not abuse its discretion in allowing Parks to examine CFO Robyn Mabe’s personal knowledge of WSC’s retention of a non-testifying expert because no privilege applied; if any privilege did exist, it was waived; and WSC cannot show prejudice.

In Arkansas State Highway Commission v. Phillips, 252 Ark. 206, 478 S.W.2d 27 (1972), we held, with three justices dissenting, that a landowner was permitted to call a staff [ ^appraiser hired by the commission and identified as such to give an opinion, although he was not called as a witness by the commission.

In Arkansas State Highway Commission v. Witkowski, 257 Ark. 659, 519 S.W.2d 743 (1975), we held that the trial court had not erred in following our holding in the Phillips case, but that we would reconsider the issue because Phillips had not been a unanimous decision and was contrary to a majority of the other jurisdictions that had considered the issue.

In Arkansas State Highway Commission v. First Pyramid Life Insurance Co. of America, 265 Ark. 417, 579 S.W.2d 587 (1979), the circuit court allowed First Pyramid to call an appraisal witness who had been retained by the Commission but not called to testify. In reversing course from our decisions in Phillips and Witkowski, we discussed the rationale employed by the majority of jurisdictions, stating:

[Tjestimony as to the original employment of the expert is not pertinent to the issue of just compensation and when admitted over the objection of the party who originally employed the expert the same constitutes prejudicial error requiring a new trial.

We thus concluded:

It follows that the trial court erred in permitting appellee to show that Wesley Adams had been employed by appellant to make an appraisal of the estimated just compensation due.

First Pyramid, 265 Ark. at 421, 579 S.W.2d at 589.

In Arkansas State Highway Commission v. Johnson, 300 Ark. 454, 780 S.W.2d 326 (1989), the Commission hired an expert to make an appraisal of condemned land. The Commission did not call the expert at trial. The circuit court allowed the opposing party to call the expert as a witness, and the expert testified that he had been hired by the Commission to appraise the condemned land, which he appraised at $233,600. We reversed the ruling of the circuit court, holding that it was improper to allow the expert to testify that he formed his opinion at the request of the Commission. We also discussed our holding in First Pyramid, stating that while the only reason given for the holding was that the original employment of the expert was not “pertinent” to the issue of valuation, other reasons could be found in Justice George Rose Smith’s dissenting opinion in Phillips. In his dissenting opinion, Justice Smith wrote:

Phillips, 252 Ark. at 219, 478 S.W.2d at 34 (Smith, J., dissenting). In sum, our holdings in First | BPyramid and Johnson clearly divert from our holdings in Phillips and WitJcowski, thereby making it impermissible to disclose the employment of a non-testifying expert witness.

I would reverse this judgment. In simple fairness a party ought not to be permitted to show, as the appellees did in the trial court, that his adversary has failed to call as a witness an expert whom his adversary employed merely for the purpose of obtaining an opinion. If such testimony has any effect at all, other than its intended purpose to arouse an attitude of passion and prejudice in the jury room, that effect is completely outweighed by the reasons of policy for not admitting such proof and by the weight of authority elsewhere.

Turning to the present case, the original employment of WSC’s expert was disclosed during Parks’s questioning of WSC’s CFO Robyn Mabe. Parks asked Mabe whether she had personal knowledge of the employment of an expert by WSC to calculate the cost of repair to the properties. The circuit court allowed the questioning over WSC’s objection. During closing argument, Parks’s counsel made the following statement:

Ms. Mabe acknowledged that Western Sizzlin’s counsel had engaged a contractor to prepare an estimate. Don’t you wonder where he is? Don’t you wonder what his report would say? Don’t you think that if it said anything less than $469,008 you would have seen him on the witness chair?

Based on our case law, we hold that it was error for the circuit court to allow Parks to refer to WSC’s employment of an expert. During closing argument, full advantage was taken of the evidence of the expert’s original employment by WSC and the fact that WSC chose not to call the expert as a witness. Reference to the original employment of the non-testifying expert constitutes prejudicial error and requires a new trial. See First Pyramid, supra. Because we reverse and remand for a new trial, we need not reach WSC’s remaining arguments.

Reversed and remanded.

      . The court in First Pyramid mistakenly avers that this issue was resolved in Witkowski, when actually we followed the Phillips precedent but gave notice to the bench and bar that the issue in Phillips would be reconsidered.


author: JIM HANNAH, Chief Justice.

text:
    2009 Ark. 276
    Russ SKALLERUP and Beauford E. Myers Individually and o/b/o a class of similarly situated persons, Burchwood Bay Sewer Improvement District and Carpenter Dam-Catherine Heights Sewer Improvement District, Appellants, v. CITY OF HOT SPRINGS, Arkansas and Honorable Mike Bush, Mayor of Hot Springs, Arkansas, in his official capacity, Appellees.
    No. 08-611.
    Supreme Court of Arkansas.
    May 14, 2009.

      Arnold, Batson, Turner & Turner, PA, by: Todd Turner; and McMillan, McCor-kle, Curry & Bennington, LLP, by: Toney McMillan, Arkadelphia, for appellant.
    Brian W. Albright, City Attorney, Hot Springs, for appellee.
   JIM HANNAH, Chief Justice.

|, Russ Skallerup and Beauford E. Myers, individually, and on behalf of a class of similarly situated persons; Burch-wood Bay Sewer Improvement District; and Carpenter Dam-Catherine Heights Sewer District (collectively referred to as Skallerup) appeal from summary judgment entered in favor of the City of Hot Springs and Mike Bush in his official capacity as mayor (the City). Skallerup challenges the City’s authority to charge nonresident City sewer customers a higher sewer rate and a higher debt-service charge than that charged to resident City customers.

12This case comes before this court on a petition for review. See Skallerup v. City of Hot Springs, CA 07-1022, 2008 WL 1961473 (Ark.App. May 7, 2008). The court of appeals reversed the circuit court. This court granted a petition for review of the decision of the court of appeals, and our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(e). When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. See Stehle v. Zimmerebner, 375 Ark. 446, 291 S.W.3d 573 (2009).

At issue is the propriety of the entry of summary judgment. Summary judgment is granted when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Couch v. Farmers Ins. Co., 375 Ark. 255, 289 S.W.3d 909 (2008). Once the moving party has established a prima facie case showing that no genuine issue of material fact remains to be litigated, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of the motion leave a material fact unanswered. Id. We view the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Id.

| ..On March 27, 1970, the Arkansas Pollution Commission (Commission) issued an order to the City of Hot Springs to cease polluting local waters, including Lake Hamilton and Lake Catherine. The City was further ordered to “take other remedial measures, including the construction of a comprehensive sewerage collection and treatment system ... adequate to serve the City of Hot Springs and its area of reasonable anticipated growth, and as may be necessary and appropriate to abate the pollution of said waters.” Pursuant to a December 15, 1972 Commission order, “no additional private sewerage disposal systems” could be installed. As a eonse-quence of these orders, all further development in the subject areas stopped. According to the parties to this suit, these orders effectively constituted a ban on all construction and halted development in the Hot Springs area.

An agreement was reached with the Commission. It provided that a new City sewage treatment plant would be built. It was in the interest of the City and the nonresidents to cooperate in establishing a sewer system over the affected areas inside and outside the City so that development could be restarted. The nonresidents chose to avail themselves of the City sewage treatment plant rather than build and operate their own sewage treatment.

A number of improvement districts were created in areas largely outside the City. These districts designed, built, and paid for systems necessary to transport nonresident sewage to a point where it could be introduced into the City system. The districts have |4ceased to exist, and their systems, as of 1997, were dedicated to the City. The City has maintained the nonresident sewage transport systems to the present date.

By 2004, there was a need for an additional sewage treatment plant. Further, according to the City, it was operating the existing treatment facility at a deficit and was losing money at a rate that threatened the viability of the system. The City also noted that customers outside the city limits were typically farther away and created an “operating cost differential.” Part of the cost differential apparently arises from the “hilly terrain” around Lake Hamilton that requires 110 “major pump stations” and 3500 “grinder pump stations.” The City passed ordinance 5274 in 2004, which imposed the new rates and debt-service charges. The increase in rates was 9% for City customers and 52% for non-City customers. Debt-service charges show a similar disparity.

Skallerup first argues that a 1994 consent order entered in Burchwood Bay v. Ellis, No. CV-93-1639 (Garland County Cir. Ct. Nov. 3, 1994), previously established Skallerup’s right to enforce contracts between the improvement districts and the City, as well as rights to relief under estoppel. The only parties in the present case that were also parties in the Burchwood case are the Burchwood Bay Sewer Improvement District, the Carpenter Dam-Catherine Heights Sewer Improvement District, and the City of Hot Springs. The Burchwood case concerned Hot Springs City Resolution 2821 requiring that prior to any nonresident connecting to the City sewer system they had to be annexed to the city or agree |5to be annexed as soon as the subject land became contiguous to the City. The 1994 consent order concluded that the right to connect to the sewer system could not be made conditional on annexation. Sewer rates and debt-service charges were not at issue.

Skallerup argues that under the doctrine of res judicata, the issue of equal treatment of residential and nonresidential customers of the City sewer system was decided by the circuit court in the Burch-wood ease and may not be decided again. The purpose of res judicata is to put to an end litigation by preventing a party who has already had a fair trial on the matter from litigating it again. See Powell v. Lane, 375 Ark. 178, 289 S.W.3d 440 (2008). Res judicata is comprised of two facets, claim preclusion and issue preclusion. See Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 255 S.W.3d 453 (2007). Under claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action. See id. Under issue preclusion, also referred to as collateral estoppel, only those issues that were actually adjudicated are precluded. See Powell, supra.

To prevail under claim preclusion, both suits must concern the same claim or cause of action. See Council v. Glyneu, 367 Ark. 397, 240 S.W.3d 600 (2006). The claim or cause of action in the Burchwood litigation was that annexation could not be used as a condition of connection to the City sewer system. The claim in the present case is that sewer rates and sewer debt-service charges may not be different for nonresidents than they are for | (¡residents. We also note that, contrary to Skallerup’s assertion, the consent order does not conclude that nonresident customers must be treated just as resident customers in all situations. Thus, the claims or causes of action in the present case are not based on the same events or subject matter as the Burchwood litigation, and the present case is not barred by claim preclusion. Beebe v. Fountain Lake Sch. Dist., 365 Ark. 536, 545, 231 S.W.3d 628, 635 (2006). The questions of whether sewer rates or debt-service charges were improper were not matters that were or could have been ripe for adjudication in the Burchwood litigation regarding annexation. See id.

To prevail under issue preclusion, the issue sought to be precluded must be the same issue as previously litigated. See Powell, supra. The issue in the Burch-wood litigation was annexation. The issues in the present case concern sewer rates and debt-service charges. Further, as already noted, and contrary to Skaller-up’s assertion, the consent order does not conclude that nonresident customers must be treated just as resident customers in all situations. Thus, the issues in the present case are not the same as in the Burchwood litigation, and the present case is not barred by issue preclusion.

Skallerup next argues that the City is estopped from enforcing ordinance 5274 imposing the new rates and debt-service charges. Skallerup argues that, in the course of the agreement reached with the Commission to end the building ban, the City promised nonresidents that they would “receive equal treatment as customers of the regional system.” On the issue of estoppel, Skallerup cites us to City of Russellville v. Hodges, 330 Ark. 716, 719, 957 S.W.2d 690, 691-92 (1997), where this court set out the elements of estoppel:

They are: (1) the party to be estopped must know the facts; (2) the party to be estopped must intend that the conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other’s conduct and be injured by that reliance.

Skallerup argues that had the class known at the time the system was set up in the 1970s and 1980s that the City would not abide by its promise that nonresidents would pay the same fees as residents, they would not have entered into the contracts with the City to create the system and dedicated their systems to the City. Skal-lerup argues that the class has detrimentally relied on the promise of equal treatment for more than thirty years. The City argues that demands on the system have significantly increased over thirty years, and that the City must build an entirely new sewage treatment facility. The City further argues that costs of service to nonresidents have increased because of the hilly terrain that has been developed since that time. The City provided sewage services to nonresidents at the same rate as residents throughout the years in which the sewage system created under the agreements of the 1970s and 1980s could provide service. The City must now build new facilities that were not contemplated in the 1970s and 1980s. Skallerup argues that the class should be able to receive the benefit of the new system based on its agreements with respect to the old system. We hold that the elements of estoppel are not met. Skaller-up has not shown that the City agreed in the 1970s and 1980s contracts to provide services at the same 18rate in perpetuity no matter what new facilities might be needed to supply demand. The class received the benefit of the system at the same rate as the residents so long as that system could provide the needed services. There is no evidence of detrimental reliance or that the class is injured. Skallerup does not show that there is a genuine issue of material fact with respect to estoppel.

We note that Skallerup references promissory estoppel in his brief. To the extent that Skallerup argues that estoppel applies to the contract obligations asserted, he is in error. Promissory estoppel applies when the elements of a contract cannot be shown. See Reynolds v. Texarkana Constr. Co., 237 Ark. 583, 374 S.W.2d 818 (1964). Skallerup argues that contracts exist in the present case making promissory estoppel inapplicable. We hold that there is no relief available under either equitable estoppel or promissory es-toppel.

Skallerup also argues that the City may be bound by contract to charge certain rates for municipal services. The City relies on Delony v. Rucker, 227 Ark. 869, 302 S.W.2d 287 (1957), for the proposition that it may charge disparate rates. Delony concerned the constitutionality of Act 7 of 1955 that provided, relevant to this case, that “[w]ater may be supplied to nonresident consumers at such rates as the Legislative Body of the municipality |9may deem just and reasonable, and said rates need not be the same as the rates charged residents of the municipality.” 227 Ark. at 870, 302 S.W.2d at 290. Further, this court in Delony stated that “[t]he specific issue here is whether the Little Rock municipal waterworks may charge its nonresident consumers higher rates than those paid by residents of the city.” 227 Ark. at 871, 302 S.W.2d at 289. This court held, “A city’s first duty is to its own inhabitants, who ordinarily pay for the municipal plant, directly or indirectly, and should therefore have a preferred claim to the benefits resulting from public ownership.” Delony, 227 Ark. at 872, 302 S.W.2d at 289. The court went on to state that, “[u]pon this reasoning it is held by the decided weight of authority that ‘the municipality, in the absence of any legislative limitation, may make a discrimination as to rates based solely on the political boundaries of the municipality.’ ” Id. (quoting Recent Case, Rate Discrimination in Sale of Water Service to Non-Residents, 101 U. Pa. L.Rev. 140 (1952)). This court also noted that “an agreement fixing public utility rates to be charged in the future is subject to the sovereign’s reserved power of rate regulation and must yield to the exercise of that power.” Id. at 874, 302 S.W.2d at 290. In Camden v. Arkansas Light & Power Co., 145 Ark. 205, 224 S.W. 444 (1920), this court stated as follows:

[t]o alter or regulate rates charged, or to be charged, by public utilities, is an inherent attribute of the police power or sovereignty existing in the state, which may be exercised at any time for the purpose of establishing the just, equitable, and reasonable rates under such circumstances as may exist at the time. It is seemingly an attribute of sovereignty which cannot be contracted away, and in contemplation of which all contracts or agreements must be made.

145 Ark. at 210, 224 S.W. at 446. In fact, any contract with a regulating body “must be made in full recognition of and subject to the sovereign power as much as if such a reservation were written into the body of the contract.” Camden Gas. Corp. v. City of Camden, 184 Ark. 34, 37, 41 S.W.2d 979, 980 (1931). Further, the state has the power, even under statutes enacted after contracting, “to impose regulations which have the effect of changing the terms of contracts in regard to rates for public service.” Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., 148 Ark. 260, 275, 230 S.W. 897, 902 (1921) (citing Ark. Light, supra). The following language from Phillips v. Town of Oak Grove, 333 Ark. 183, 189, 968 S.W.2d 600, 603 (1998), on police power is instructive:

In Springfield v. City of Little Rock, 226 Ark. 462, 290 S.W.2d 620 (1956), we recognized the city’s plenary duty to exercise its police power in the interest of the public health and safety of its inhabitants. Id. at 464-65, 290 S.W.2d at 622. The police power of the state is founded in public necessity and this necessity must exist in order to justify its exercise. Id. It is always justified when it can be said to be in the interest of the public health, public safety, public comfort, and when it is, private rights must yield to public security, under reasonable laws. City of Little Rock v. Smith, 204 Ark. 692, 695, 163 S.W.2d 705, 707 (1942) (quoting Beaty v. Humphrey, 195 Ark. 1008, 115 S.W.2d 559 (1938)). The State has authorized the municipalities to legislate under the police power in Ark. Code Ann. § 14-55-102 (1987). That section provides, “Municipal corporations shall have the power to make and publish bylaws and ordinances, not inconsistent with the laws of this state, which, as to them, shall seem necessary to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and | ^convenience of such corporations and the inhabitants thereof.”

It is clear that a city may not contract away its power and obligation to charge reasonable rates for municipal services. There is no merit to Skallerup’s claim that the City could be bound to rates set by contract.

Skallerup finally argues that the new rates and debt-service charges are unreasonable. Mount Olive Water Association v. City of Fayetteville, 313 Ark. 606, 856 S.W.2d 864 (1993), is cited by the City for the proposition that “there is no law that prevents a city from charging a higher rate to those customers who reside outside the city limits, so long as the rate is reasonable.” The City cites Arkansas Code Annotated section 14-234-111(d) (Repl.1998), which provides that sewer service may be extended to adjacent areas and that the municipality has the power to fix the rates.

The City offered a rate study from NRS Consulting Engineers. Further, evidence was offered to show that because a second system was being constructed, higher rates should be charged because of “considerably greater costs associated with providing services to outside City customers.” We also note evidence offered showing that due to the need for new facilities and due to higher costs associated with providing services in hilly terrain, the costs needed to be higher for nonresidents. Skallerup countered with conclusory testimony that hpthe rates should not be higher. It was also argued that the rates for nonresidents were “drastically higher,” but nothing beyond conclusory allegations were offered to counter the City’s evidence that higher rates and debt-service charges were required. Skallerup argues that the nonresidents paid for their own system in the 1970s and 1980s, but that does not address the City’s allegation that a second system must be built to provide capacity that was not required when the first system was constructed. The City put on proof that higher rates and charges were needed and reasonable. Skallerup has failed to meet proof with proof as required. Couch, supra.

Below, Skallerup argued that the disparate rates and charges violates due process, equal protection, and constitute an illegal tax. Those arguments were not developed on appeal and will not be addressed. See Teris, L.L.C. v. Chandler, 375 Ark. 70, 289 S.W.3d 63 (2008). Affirmed.

      . This is now the Arkansas Pollution Control and Ecology Commission. See Ark. Code Ann. § 8-1-101 (Repl.2007).

      . We note that the parties presented arguments on the various contracts, who the parties to the contracts were, and whether subsequent contracts modified or nullified earlier contracts. Because our holding that a municipality may not restrict its power and obligation to charge reasonable rates for municipal services, there is no need to distinguish between the contracts.

      . Even if a municipality could be bound to certain rates by contract, because the contracts at issue did not contain a provision fixing the period of the contract's duration, they would be terminable at will by either party. Delony v. Rucker, 227 Ark. 869, 874, 302 S.W.2d 287, 290 (1957).

      . The City also cites us to Arkansas Code Annotated section 14-234-110(a)(3) (Repl. 1998) for the proposition that water may be supplied to nonresident consumers at different rates than those charged to resident consumers. However, sewer service rather than water service is at issue, so the statute is inapplicable.

      . Skallerup offered the deposition testimony of Donald Brady and E.J. ''Pat” Patterson. The City argues the deposition testimony must be excluded as untimely. We agree.


author: JOHN MAUZY PITTMAN, Judge.

text:
    2009 Ark. App. 273
    George T. RANSOM, Appellant, v. Lyndel L. RANSOM, Appellee.
    No. CA 08-1235.
    Court of Appeals of Arkansas.
    April 15, 2009.

      Rice & Adams, by: Scott A. Scholl, Jacksonville, for appellant.
    Janet K. Moore, PLC, by: Janet K. Moore, Hot Springs, for appellee.
   JOHN MAUZY PITTMAN, Judge.

| Appellant George Ransom seeks reversal of a divorce decree. He argues that his former wife, appellee Lyndel Ransom, failed to prove grounds for divorce and that the circuit court erred in dividing the couple’s property. Appellee also challenges the court’s division of property but states that she will not pursue her cross-appeal unless we reverse on direct appeal. We affirm on direct appeal, which renders the cross-appeal moot.

Standard of Review

We review domestic-relations cases de novo on the record, but we will not reverse the circuit court’s findings unless they are clearly erroneous. Hunter v. Haunert, 101 Ark.App. 93, 270 S.W.3d 339 (2007). A circuit court’s finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with |2a definite and firm conviction that a mistake has been committed. Id. We give due deference to the superior position of the circuit court to view and judge the credibility of the witnesses. Id.

Proof of Grounds

Appellee sued appellant for divorce on the ground of general indignities. See Ark.Code Ann. § 9-12-301(b)(3)(C) (Repl.2008). To obtain a divorce on this ground, the plaintiff must show a habitual, continuous, permanent, and plain manifestation of settled hate, alienation, and estrangement on the part of one spouse, sufficient to render the condition of the other intolerable. Poore v. Poore, 76 Ark. App. 99, 61 S.W.3d 912 (2001). Such manifestations may consist of rudeness, unmerited reproach, contempt, studied neglect, and open insult. See Pomraning v. Pomraning, 13 Ark.App. 258, 682 S.W.2d 775 (1985). Mere uncongeniality and quarrelsomeness, without more, are not sufficient to sustain a charge of indignities. Poore, supra. Additionally, testimony by the plaintiff and corroborating witnesses that is merely general or conclusory in nature is not sufficient. See Dee v. Dee, 99 Ark.App. 159, 258 S.W.3d 405 (2007); Harpole v. Harpole, 10 Ark.App. 298, 664 S.W.2d 480 (1984); Copeland v. Copeland, 2 Ark.App. 55, 616 S.W.2d 773 (1981). The circuit court’s finding of general indignities must be based on factual testimony and proof of specific acts and language showing the rudeness, contempt, and indignities complained of. Poore, supra (quoting Bell v. Bell, 105 Ark. 194, 150 S.W. 1031 (1912)).

IsAppellant contends that appellee’s evidence of grounds consisted of little more than a few minor incidents that occurred while he was under stress due to health and family problems. Appellant has understated appellee’s proof. Appellee testified that she and appellant played golf every Friday and that his anger over her golf game reduced her to tears each week. Appellant’s conduct toward appellee on the golf course was confirmed by witnesses Betz Windsor and Faye Taylor. Taylor testified that she once observed appellant come onto the golf course while appellee was playing in a ladies’ league and scream at appellee so loudly that Taylor could hear him from across the fairway. According to Taylor, appellant continued to chastise appellee after she took her next shot, which left appellee “sobbing and shaking.”

Appellee also testified to appellant’s conduct outside the golf course. She recounted one incident in which she and appellant drove separate cars home to Hot Springs from Little Rock. Appellee could not keep up with appellant’s rapid driving in heavy traffic, and he motioned for her to pull over to the side of the road. Appellee did so and, according to her, appellant ran toward her vehicle, “tore the door open” and “started screaming and cussing at me about what was wrong with the blankety-blank car, I told you to stay up with me and his language and his demeanor toward me was horrible.” Appellee said that when they arrived home, appellant left without saying where he was going. Appellee further testified that, during this same period, she heard appellant talking on his cell phone downstairs in the middle of the night and that he would not disclose to whom he was ^speaking. She also found, under a mat in the back of her vehicle, a birthday card containing a romantic message to appellant from a woman of their acquaintance. Appellee additionally said that she was afraid of appellant because he had started carrying a gun and that “he left our home day after day for hours on end not letting me know where he was going.” Further, appellee said that appellant gambled regularly and that he often made large cash withdrawals. She stated that she could not account for at least $77,000 of their joint funds.

Appellee’s witnesses described appellant as domineering, loud, and demanding. Teresa Cummings stated that appellee had once been “a leader in our community” but that she had become nervous and withdrawn, though Cummings acknowledged that appellee’s health problems might have caused her to be a little more soft-spoken than in the past. Patsy Crocker testified that appellant treated appellee “like a maid” and that appellee had lost her self-esteem.

Given the above testimony, we cannot say that the circuit court clearly erred in granting appellee a divorce on the ground of general indignities. Appellee and her witnesses offered fully developed, narrative accounts of appellant’s conduct, citing specific acts and language. They also testified in detail to the effect of appellant’s conduct on appellee. As a result, appel-lee’s proof far exceeded that in Dee, supra, and Harpole, supra, where we reversed divorce decrees that were based solely on the plaintiffs’ short responses to their attorneys’ inquiries about indignities. Ap-pellee’s proof also surpasses that in Poore, supra. There, we affirmed a circuit court’s dismissal of a divorce complaint after the plaintiff proved | .^nothing more than a continuing disagreement over the husband’s job decision. By contrast, appellee showed that appellant frequently directed his wrath toward her in a manner that embarrassed, humiliated, and frightened her; that appellant publicly and privately harangued appellee over minor matters; that appellant acted in a dismissive and suspicious manner by leaving the house for hours without explanation, making a late-night phone call without saying to whom he was speaking, and being in possession of a romantic card from another woman; that appellant gambled frequently; and that appellee could not account for a large portion of the couple’s joint funds. Even if no single one of these incidents, standing alone, would constitute grounds for divorce, the incidents together produce a cumulative effect sufficient to support the ground of general indignities. See generally Moore v. Davidson, 85 Ark.App. 104, 145 S.W.3d 833 (2004). We therefore affirm the circuit court’s decision to grant a divorce.

Property Division

Prior to the marriage, appellee owned homes on Pineapple Drive and Arlington Road. She and appellant lived at the Arlington Road home during the marriage. Appellant argues that the circuit court erred in failing to award him an interest in these properties.

A party to a divorce is ordinarily entitled to the return of his or her premarital property. See Ark.Code Ann. § 9-12-315(a)(l)(B)(2) (Repl.2008). However, the circuit court may find that a non-owning spouse is entitled to some benefit by reason of marital funds being used to improve or reduce the debt on the owning spouse’s property. See Box v. Box, 312 Ark. 550, 851 S.W.2d 437 (1993); Dial v. Dial, 74 Ark.App. 30, 44 S.W.3d 768 (2001); Camp v. Camp, 18 Ark.App. 87, 710 S.W.2d 842 (1986). It is undisputed in this case that, during the marriage, the parties spent at least $18,685 in marital funds to repair and improve the Arlington Road home and at least $4,634 in marital funds to repair and improve the Pineapple Drive home. Appellant contends that these expenditures and the contribution of marital funds to the properties’ mortgage payments, of which he offered one canceled check from 2005 as his sole documentary proof, entitled him to an interest in the realty.

We see no clear error in the circuit court’s property division. Appellee sold the Pineapple Drive home during the marriage and placed the $53,773 in sale proceeds into the parties’ joint savings account. Appellee offered proof that appellant accessed the savings account frequently during the marriage and made a large number of cash withdrawals from it. Although appellant testified that he spent the money on cash payments to the contractors who performed the repairs and improvements on appellee’s homes, appel-lee testified that the parties did not pay the contractors in cash. This conflict in testimony was a matter for the circuit court to resolve. See McNamara v. Bohn, 69 Ark.App. 337, 13 S.W.3d 185 (2000). The evidence also showed that the parties used proceeds from the savings account to fund a jointly-owned investment account, which the court divided equally as marital property. The court may therefore have concluded that appellant had already benefitted from the sale of the Pineapple Drive home.

|7As for the Arlington Road home, which appellee still owned at the time of the divorce, appellant produced no proof that marital expenditures reduced the debt on the home or increased its value, though it was his burden to offer such proof. See Farrell v. Farrell, 365 Ark. 465, 231 S.W.3d 619 (2006). However, we have recognized that, even in the absence of such proof, a spouse is entitled to have the circuit court consider the contribution of marital funds when balancing the equities of property division. See Powell v. Powell, 82 Ark.App. 17, 110 S.W.3d 290 (2003). Nevertheless, in this case, we decline to disturb the circuit court’s balancing of the equities. As mentioned previously, appel-lee demonstrated that appellant reaped considerable benefits from the sale proceeds of the Pineapple Drive home. Additionally, appellee testified that marital funds were used to pay some of appellant’s separate expenses, such as property-owner-assoeiation dues on a lot that he owned and three years of child-support payments. Furthermore, the decree awarded appellant full ownership in an entity called Enterprise Products Partners, which was titled in both parties’ names, and awarded appellant full ownership of an investment account that he created with pre-divorce income. Under these circumstances, we see no basis for reversal.

Appellant also argues that the circuit court erred in equally dividing a Merrill Lynch investment account. Appellant owned the account prior to marriage. In 2006, the parties transferred $100,000 from their joint savings account to the Merrill Lynch account and changed the ownership of the Merrill Lynch account to themselves as joint tenants with |8right of survivor-ship. At the time of the divorce hearing, the account had a value of approximately $145,000, and the court divided it equally as marital property. Appellant argues that the equal division was erroneous because the account was funded with a $260,000 settlement that he received for injuries sustained as a railroad worker. See generally Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2 (1999) (holding that a personal-injury award is not marital property if it is for a degree of permanent disability or future medical expenses and is the result of an on-the-job injury or a tortious act). It is true that the savings account, from which the Merrill Lynch account was funded, contained appellant’s railroad settlement. However, the savings account also contained contributions from appellee. During the marriage, both parties transferred approximately $100,000 from the jointly-held savings account into the jointly-held Merrill Lynch account. As we stated in Singleton v. Singleton, 99 Ark.App. 371, 375, 260 S.W.3d 756, 759 (2007):

Appellant’s argument focuses on the fact that the funds used to purchase the home, vehicles, and other property came from her personal-injury settlement. The trial court could have decided that, because the settlement money was deposited into joint accounts and was used to purchase, among other things, a house titled in both names, it lost its character as appellant’s separate property. See McKay v. McKay, 340 Ark. 171, 8 S.W.3d 525 (2000); Lofton v. Lofton, 23 Ark.App. 203, 745 S.W.2d 635 (1988). Placing the funds from her settlement into joint accounts created a presumption that appellant intended to make a gift to appellee of one-half of the settlement proceeds. Appellant offered no testimony seeking to rebut this presumption, and it was her burden to do so. See Davis v. Davis, 79 Ark.App. 178, 84 S.W.3d 447 (2002). Moreover, one spouse’s unequal contributions to marital property need not be recognized upon divorce. McKay, supra.

The circuit court has broad powers to distribute both marital and non-marital property to achieve an equitable division. Dial, supra. Our property-division statute does | snot require mathematical precision in property distribution but only that property be distributed equitably. Id. Our review of the circuit court’s division of property reveals no inequity. We therefore affirm the divorce decree. As stated previously, our affirmance renders appellee’s cross-appeal moot.

Affirmed on direct appeal; cross-appeal moot.

GLADWIN and HENRY, JJ., agree.


author: DAVID M. GLOVER, Judge.

text:
    2009 Ark. App. 284
    Steve WOLFE, Appellant, v. Michael STEVENS & Karen Harris, Appellees.
    No. CA 08-1075.
    Court of Appeals of Arkansas.
    April 15, 2009.
    Ed Tarvin, Attorney at Law P.A., by: Ed Tarvin, Bentonville, for appellant.
    No response.
   DAVID M. GLOVER, Judge.

|]In this one-brief appeal, appellant, Steven Wolfe, challenges the trial court’s dismissal with prejudice of his complaint seeking to establish paternity of T.M.S., a minor child born on February 24, 2003. We hold that the trial court erred in dismissing the complaint, and we reverse and remand this case.

Appellee Karen Harris, T.M.S.’s mother, and appellee Michael Stevens were married to each other at the time of his birth in Louisiana. Harris and Stevens were divorced in 2004, and Stevens was eventually awarded custody of the minor child. See Stevens v. Stevens, 978 So.2d 916 (La.App. 1 Cir.2007). Stevens later moved to Arkansas, and Wolfe, after learning of Stevens’s and the child’s whereabouts, filed his complaint seeking 12to establish paternity here. Stevens answered the complaint, admitting that Wolfe was T.M.S.’s biological father but alleging that he was the child’s legal father. Stevens also moved to have the complaint dismissed.

The trial court held a hearing on Stevens’s motion to dismiss on April 15, 2008. At that hearing, there was testimony from Wolfe that Harris told him during her pregnancy that he was the father of the child; that a DNA test had been performed; and that he knew prior to March 2005 that he was the biological father. Wolfe said that he was in T.M.S.’s life until August or September 2004. Stevens testified that he knew that he was not the biological father since shortly after his birth, but that he did not challenge his status or standing as T.M.S.’s father during the divorce proceedings, electing “to stay on as his father,” and ultimately receiving full custody of him. In the order dismissing Wolfe’s complaint seeking to establish paternity, the trial court found that Stevens was the legal father; that Wolfe had actual knowledge of his status as the biological father but did not take timely action to establish his paternity; and that pursuant to the doctrine of laches, Wolfe was barred from bringing the action or being awarded relief.

Wolfe argues that the trial court erred in dismissing his complaint to establish paternity. He is correct. In this action Wolfe sought to establish himself as T.M.S.’s biological father. Arkansas Code Annotated section 9 — 10—102(b) (Repl.2008) provides, in pertinent part, “Actions brought in the State of Arkansas to establish paternity may be brought at any time.” (Emphasis added.) In light of this explicit statutory provision, the trial |scourt erred as a matter of law in dismissing Wolfe’s complaint to establish paternity. We therefore reverse and remand this case to allow Wolfe to pursue his paternity action

Reversed and remanded.

GRUBER and MARSHALL, JJ., agree.

      . This court issues no opinion regarding who is entitled to custody of T.M.S.


author: D.P. MARSHALL JR., Judge.

text:
    2009 Ark. App. 342
    Zachary Colt CARTER and Sherron M. Carter, Appellants, v. STATE of Arkansas, Appellee.
    No. CA 08-1322.
    Court of Appeals of Arkansas.
    April 29, 2009.

      Billy Bob Webb, Springdale, for appellants.
    Dustin McDaniel, Att’y Gen., by: Eileen Harrison, Ass’t Att’y Gen., for appellee.
   D.P. MARSHALL JR., Judge.

| t Arguing a denial of due process, the Carters — mother and son — appeal the circuit court’s order forfeiting their Chevrolet Trailblazer to the Fayetteville Police Department. Zachary and a group of friends used the vehicle when they burgled an unfinished hotel. Zachary confessed, and the police seized the Trailblazer. After Zachary pleaded guilty and was convicted, he and his mother moved to get the Trailblazer back. The State responded promptly and sought forfeiture in its response. About a month later, the circuit court held a hearing and heard argument from the parties. At the end of the hearing, the court said it wanted more time to look at statutes and gave the parties ten days to file briefs. The Carters and the State filed 12a brief. The court then granted the State’s request for forfeiture. Were the Carters denied due process? U.S. Const, amend. XIV; Ark. Const, art. II, § 8.

The process due a citizen before the State may take his or her property depends on the circumstances presented. Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); Sims v. Moser, 373 Ark. 491, 499, 284 S.W.3d 505, 512-13 (2008). The constitutional minimum, however, is adequate notice and some kind of a hearing before a neutral decision-maker. Dusenbery v. U.S., 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002); Tsann Kuen Enterprises Co. v. Campbell, 355 Ark. 110, 119, 129 S.W.3d 822, 827 (2003). The Carters argue that they received neither notice of the forfeiture proceeding nor an opportunity to be heard. But this record shows both.

The State’s response to the Carters’ motion to return the Trailblazer notified the Carters that the State sought forfeiture. In drug-related forfeiture cases, the prosecuting attorney must file a complaint to start forfeiture proceedings. Ark.Code Ann. § 5-64-505(g) (Supp.2007). The forfeiture statutes covering vehicles allegedly used in committing thefts and burglaries, however, impose no such complaint requirement. Ark.Code Ann. §§ 5-5-201(a) & 5-5-204(a) (Repl.2006). The State, of course, had to file some paper notifying the Carters of its forfeiture request and asking the court for action. The State’s response sufficed. The State served its response on the Carters’ lawyer more than a month before the hearing. See Nunley v. Department of Justice, 425 F.3d 1132, 1139 (8th Cir.2005) (holding that defendant was afforded due process when the government sent the forfeiture notice to him in care of his attorney). The State’s response gave the Carters adequate notice of the forfeiture effort.

The Carters also got an opportunity to be heard, orally and in writing. At the hearing, the parties stipulated to the facts and made full arguments about forfeiture. Then, at the court’s invitation, they filed post-hearing briefs. The hearing and the briefing satisfied the Constitutions’ requirement that the citizen have the opportunity to be heard against the State’s position.

The Carters emphasize that Sher-ron Carter’s rights as the Trailblazer’s co-owner were unfairly compromised by the forfeiture. We disagree. “Zachary Colt Carter or Sherron M. Carter” held title to the Trailblazer. Either owner could transfer title and divest the other. Warren v. Warren, 273 Ark. 528, 534, 623 S.W.2d 813, 817 (1981). Zachary could have sold the vehicle, for example, without his mother’s consent or involvement. The parties stipulated to Zachary’s burglary and theft convictions and his use of the vehicle in these crimes. Zachary’s actions divested his mother’s interest in the Trailblazer as surely as if he had sold it. Ark.Code Ann. §§ 5-5-201(a) & 5-5-204(a).

Affirmed.

14VAUGHT, C.J., and BAKER, J., agree.