text:
    2009 Ark. App. 347
    Julie DAVIS, Appellant, v. Deric SHERIFF, Appellee.
    No. CA08-247.
    Court of Appeals of Arkansas.
    April 29, 2009.
    Rehearing Denied June 3, 2009.

      Glen Hoggard, North Little Rock, for appellant.
    Alexander Law Firm, by Micah Nail Lane, Jacksonville, for appellee.
   KAREN R. BAKER, Judge.

| lAppellant Julie Davis asserts two points of error with the trial court’s modification of custody, placing primary physical custody of the parties’ two minor children with appellee Deric Sheriff: (1) The trial court erred in finding the existence of a material change of circumstances in that neither the facts nor the law support the finding; and (2) The trial court erred in finding that appellant failed to make appel-lee aware of his children’s educational issues. For the reasons discussed herein, we affirm.

Appellant and appellee were divorced on September 21, 2001, by decree of an Oklahoma District Court. The decree awarded the parties joint custody of their two minor children, C.S. and R.S., with appellant being awarded primary physical custody. On April 28, 2006, appellee filed a motion in Lonoke Circuit Court for change of custody. At the time of the petition, both parties lived in Arkansas.

|2Appellee’s petition listed a number of allegations as changes in material circumstances: (1) continuous problems maintaining telephone contact with the children; (2) being unaware of his children’s whereabouts, home address, and school assignment; (3) the alleged third marriage of appellant since her divorce from appellee; (4) the alleged abusiveness and mental instability of appellant’s husband — Brian; (5) Brian’s no-contest pleas to a charge of second-degree battery concerning his biological son; (6) the alleged marriage of appellant within one month of her divorce from appellee; (7) three residential moves undertaken by appellant without appellee’s knowledge; (8) going without contact with his children for two weeks incident to one of the alleged residential moves; (9) withdrawing and enrolling the children in school incident to each of the alleged residential moves; (10) an alleged announcement of an intent to move again to Oklahoma; and (11) certain behaviors by the children during visitation that appellee attributed to remarks and treatment by their stepfather.

A previous order filed on November 25, 2003, in an Oklahoma court, recognized the parties’ agreement settling all pending issues on a petition for modification and relocation, modified the visitation schedule, and granted appellant’s request for relocation to Arkansas. The trial court in this matter correctly admonished the parties that allegations of events occurring prior to the 2003 Oklahoma order were not considered for purposes of appellee’s petition in this case. Allegations of occurrences prior to 2003 included appellee’s being unaware of his children’s whereabouts, three residential moves, having no contact with the Ischildren for two weeks, and the school enrollments. Regarding allegations of problems with maintaining telephone contact with the children, appellee admitted in his testimony that appellant was in compliance with the court’s order concerning telephone contact. He also testified that both he and appellant had been married a total of three times and that he had missed only one weekend of scheduled visitation since 2003. Of the allegations pled by appellee, the only remaining issues alleged as a basis for material change of circumstances were the claims concerning the childi-en’s stepfather and his no-contest plea. While appellee alleged that the plea was to a charge of second-degree battery, the stepfather testified that the plea was for a Class A misdemeanor of endangering a minor, rather than a felony charge.

The no-contest plea involved the stepfather’s biological son from his first marriage. At trial, the stepfather explained the acrimonious nature of the relationship with his first wife and depicted the charges as an extension of that situation. He also testified that he believed his first wife’s ill-will toward him, and her desire to have her new husband become the adoptive father, was such a strong motivation for her actions that continuing to fight her threatened his new family. The trial court’s ruling made no finding regarding the stepfather’s interaction with the parties’ children and its order placed no restrictions on appellant regarding the stepfather’s contact with the children. In evaluating the stepfather’s explanation, the trial court had the advantage of observing the stepfather’s first wife who also testified at the hearing.

I/The trial court found a change of circumstances existed and granted appellee’s motion for change of custody and relocation to Texas. While the order itself did not identify the factual basis supporting the change-of-circumstances finding, the trial court discussed its concern about three issues prior to declaring a material change existed: (1) the attendance of R.S. in kindergarten and first grade; (2) R.S.’s grades in first grade; and (3) a failure to make appellee aware of the educational problems his children were experiencing. The trial court also found that appellee was $8322 in arrears in child support, ordered that appellant pay minimum child support as she was unemployed, and ordered that her obligation would be credited against appellee’s arrearage.

Appellant’s argument on appeal focuses on these three observations of the trial court stated from the bench. The written order of the court set forth no specific findings regarding the matter, and the parties did not ask for specific findings from the court. Rule 52(a) of the Arkansas Rules of Civil Procedure affords a litigant a right to request specific findings of the trial court. However, failure to make a timely request for separate findings constitutes a waiver of that right. Legate v. Passmore, 268 Ark. 1161, 1162, 599 S.W.2d 151, 152 (Ark.App.1980) (holding that parties could not construe trial court’s statement to be exclusive of other legal conclusions it might have reached in determining the verdict and judgment). Where no specific findings are made, we may nonetheless conclude under our de novo review that there was sufficient evidence from which the trial court could have found a change in circumstances. Hamilton v. Barrett, 337 Ark. 460, 989 S.W.2d 520 (1999).

A trial court’s decision concerning custody is reviewed de novo, but its findings will not be reversed unless they are clearly erroneous. Hollandsworth v. Knyzewski, 78 Ark.App. 190, 193, 79 S.W.3d 856, 858 (2002). 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 was committed. Id. Under these facts, we are not left with such a conviction. Because the question of whether the trial court’s findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child’s best interest. Middleton v. Middleton, 83 Ark.App. 7, 113 S.W.3d 625 (2003).

Custody should not be changed unless conditions have altered since the most recent custody order was rendered, or material facts existed at the time of the last order but which were unknown to the court, and then only for the welfare of the child. Gerot v. Gerot, 76 Ark.App. 138, 61 S.W.3d 890 (2001). The court must first determine that a material change in circumstances has occurred since the last order of custody; if that threshold is met, the court must then determine who should have custody with the sole consideration being the best interest of the child. Id. Our courts require a more rigid standard for custody modification than for initial custody determinations so as to promote stability and continuity for the children and to discourage repeated litigation of the same issues. Vo v. Vo, 78 Ark.App. 134, 139, 79 S.W.3d 388, 391 (2002).

Appellant argues that the factors specifically mentioned by the court at the time of 11,its ruling were not legally significant and do not support the finding that there has been a material change of circumstances. However, this court does not examine each finding cited by a trial court in isolation. See Hollinger v. Hollinger, 65 Ark.App. 110, 986 S.W.2d 105 (1999). Certain factors, when examined in the aggregate, may support a finding that a change in custody is warranted where each factor, if examined in isolation, would not. See Hollinger v. Hollinger, supra (holding that the noncustodial parent’s remarriage, the custodial parent’s move, or the passage of time, when examined in the aggregate, supported a change in custody).

In this case, the trial judge remarked from the bench that she was disturbed about R.S.’s “nonattendance at school” and that appellee “wasn’t made aware of a lot of the educational problems his children had.” Testimony showed that the younger child had significant absences, had been tardy several times and was being retained in first grade. However, the record does not demonstrate that appellant was thwarting the child’s school attendance or academic endeavors. To the contrary, testimony of school personnel revealed appellant to be more involved than the majority of first grade parents and to be responsive to the child’s needs and school recommendations. The lack of achieving academic milestones was specifically identified by school personnel as being most likely attributable to as yet undiagnosed neurological causes. The school principal testified that if there had been an issue of unexcused absences, her attention would have been required to address the attendance issue and she was unaware of any problems with appellant or her children | ^regarding noncompliance with attendance regulations. Further, the testimony of school personnel showed that appellee was in contact with the school regarding the children’s progress, and refuted his suggestion that a no-pickup instruction impeded appellee’s access to school personnel or the children’s educational records.

Excessive absences, tardiness, and the lack of academic progress are matters that may be weighed by the trial court in determining the best interest of the child. However, given the evidence in this case, we agree with appellant that none of the concerns specifically listed by the trial court in its comments from the bench, either alone or in combination, constituted a material change sufficient to warrant a modification of custody. Our agreement with appellant on this point, however, does not end our review.

Our review includes the entire record, and we do not reverse a finding of fact by the trial court unless it is clearly erroneous. Medlin v. Weiss, 356 Ark. 588, 158 S.W.3d 140 (2004). A finding of fact is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. In reviewing the trial court’s decision, we defer to that court’s superior position for measuring the witnesses’ credibility and evaluating what was in the child’s best interest. Brandt v. Willhite, 98 Ark.App. 350, 255 S.W.3d 491 (2007).

In this case, the stepfather’s conviction of child endangerment against his biological son is sufficient to affirm the trial court’s finding that a material change of circumstances existed. We recognize that the trial court made no finding in its discussion from the bench |Rthat the stepfather was a threat to the children and provided no restrictions in the order regarding the stepfather’s contact with the children. Nevertheless, it is undisputed that the stepfather pled no contest to a charge arising from allegations he caused harm to a child.

The fact that the stepfather disputed the factual basis for the charge to which he pleaded no contest, explaining to the trial court that a conviction for the battery would have ended his military career and he believed that he could not disprove the allegations, cannot refute the fact that he has been convicted of a crime involving harai to a minor child. A plea of no contest is treated as a conviction. Pryor v. State, 314 Ark. 212, 861 S.W.2d 544 (1993). See, e.g., Moore v. Arkansas Dep’t of Human Servs., 69 Ark.App. 1, 9 S.W.3d 531 (2000) (affirming trial court decision based on a finding made in the previous adjudication order that appellant had sexually abused his daughter and from which appellant had not appealed). Furthermore, a court may consider an individual’s purposeful injury to a child whose welfare is not before the court in a proceeding when determining the best interests of children before the court. See Arkansas Dep’t of Human Servs. v. McDonald, 80 Ark.App. 104, 91 S.W.3d 536 (2002) (finding father’s children were dependent-neglected, even though father did not cause direct injury to children in question). We hold that a stepparent’s conviction of a crime involving the intentional harm of a minor is sufficient to support a trial court’s finding that a material change of circumstances has occurred to justify re-evaluating the best interests of a child.

On appeal appellant challenges only the trial court’s finding of a material change of | <)Circumstance, and does not specifically challenge its ruling that the change in primary physical custody was in the children’s best interests. Because our review of the record does not demonstrate that the trial court clearly erred in finding a material change of circumstances, we affirm.

Affirmed.

VAUGHT, C.J., and MARSHALL, J., agree.


source: Caselaw Access Project

author: RITA W. GRUBER, Judge.

license: Public Domain

text:
    2009 Ark. App. 337
    Terry A. HATCH, Appellant, v. William Paul HATCH, Appellee.
    No. CA 08-1275.
    Court of Appeals of Arkansas.
    April 29, 2009.

      James A. McLarty, III, Newport, for appellant.
    Ralph Myers, III, McCroy, for appellee.
   RITA W. GRUBER, Judge.

| Appellant Terry A. Hatch contends that the circuit court erred in denying her claim for a share of alleged retirement benefits that appellee William Paul Hatch, her ex-husband, received from the Arkansas Public Employees Retirement System (APERS) after their 1990 divorce. We affirm the circuit court’s decision that these benefits were not subject to division under the parties’ property-settlement agreement.

The property-settlement agreement, which was incorporated into the parties’ divorce decree, included the following provision:

The Plaintiff [appellee] agrees that the Defendant [appellant] shall be entitled to ½ of 9/20ths of his pension benefits from the Arkansas Game and Fish Commission, and that upon his retirement from the aforesaid agency he shall deliver over to her ½ of 9/20ths of each pension check which he shall receive from the aforesaid agency.

In April 2008 appellant filed a petition for citation alleging that appellee had secured early [¿retirement status based upon disability in April 2003. She prayed that appellee be directed to appear and show cause why he should not be held in contempt, and that she be awarded her share of the benefits.

After conducting a hearing on the petition, the circuit court ruled that appellee was not in contempt. The court reserved ruling on appellant’s entitlement to the challenged benefits, leaving the record open so that the parties could conduct discovery on the issue. At the conclusion of a second hearing, the court ruled that appellant was not entitled to the funds under the property-settlement agreement because they were disability income rather than retirement income. The court’s oral findings and conclusions were incorporated into a written order of August 12, 2008, from which the present appeal arises.

At the initial hearing appellee testified that he had not retired. He testified that he nearly broke his back in an on-the-job injury and had not worked as a wildlife officer since December 31, 2001. He stated that he initially drew workers’ compensation benefits; used vacation, sick, and catastrophic leave for a year and a half; and after qualifying “for early retirement, namely disability retirement, from Game and Fish,” received benefits from February 2004 through May 2008. He said that he never considered the benefits “as retirement,” explaining that they were tied to social security, that he was a disabled employee who could not work, and that his retirement age of fifty-six was more than seven | «years away. He said that he had started his own carpentry business and that in May, the month before the hearing, he drew no state benefit because his monthly income had exceeded the allowable amount of $940. He said he understood that the disability was totally separate from retirement because it was not based on his age, explaining that disability benefits were paid by the state when an injured employee could not work and that “the retirement amount is a different amount.” He testified that his state benefits had not vested at the time of the parties’ divorce because he did not have ten years’ service, and he had known at that time that appellant would not have been entitled to any of his retirement.

Evidence before the court at the second hearing included two letters from APERS and further testimony by appellee. The first letter stated:

In reference to your inquiry about Mr. Hatch and his status with this Retirement System, please be advised that this is a defined benefit plan meaning that retirement benefits are based on a defined formula and determined by salary, service, age and benefit multipliers. Benefits based on disability are, in our definition, retirement benefits, payable to the member monthly for his/her lifetime and based on the same formulas as any other benefit paid by APERS. The exception is that if the member meets the required criteria for disability, there is no age penalty applied.
Because Mr. Hatch was not vested for any type of monthly benefit when his marriage ended, this system would not honor a QDRO and would not pay an alternate any part of his monthly benefit. If he is ordered by the court to provide payment to his ex-wife, he will be responsible for making those payments.

The second letter from APERS showed the effective date of appellee’s “retirement due to | ¿disability” as April 1, 2003, and stated that appellee was paid “$72,804.96 in disability benefits” from April 2003 through May 2008, when benefits were suspended.

Appellee’s testimony at the second hearing expounded upon his previous testimony. He said that his accident occurred on river rocks when a rolling boulder “about disintegrated two discs,” and that in January 2002 he underwent back surgery. He testified that he did not draw state disability until he was found disabled for purposes of social security, which “is what the state bases their disability on.” He said that state retirement and disability had different sets of rules and regulations, explaining that disability stipulates “[y]ou cannot work and have to go for medical reviews” but that there are no stipulations “when you retire with your years of service and you have met the age requirement.”

The court pronounced its ruling in open court, finding that the benefits at issue were in the nature of disability income. The court observed that although APERS called the funds retirement income, the state had different sets of rules for retirement and disability as follows:

If this was truly retirement income that was vested in him that he has a right to draw on, then it would not matter how much money he made, and they would not take it away from him. It is completely tied to his Social Security Disability Claim. They did not even give it to him until he was determined to be disabled. They call it ... in their vernacular!,] retirement, but when they set it up with a different set of rules that says that if you don’t reach a certain age or time in service that it is conditioned that it must be by, under a disability of some sort.
From a de facto standpoint, that is what they have done. They have made two different sets of eligibility for this payment that they call retirement, but that is in fact not retirement since if it were, he would still be getting it.

15The court clarified that “retirement would be reached under the decree,” at the time that the plan should pay benefits that are irrevocable, “in other words, that are in a sense vested retirement benefits.” Noting that there was no testimony about when that would occur, the court commented that presumably, at some point, appellee would be entitled to apply for benefits of a permanent nature not tied to whether he could work. The court reiterated that until that time, appellant was not entitled to the disability pay that was the subject of the hearing.

Appellant presents four points in support of her contention that the circuit court erred in failing to award her part of appel-lee’s retirement under the property-settlement agreement. She asserts that 1) the property-settlement agreement stated that she was entitled to “any retirement payments,” 2) the circuit court was without authority to modify the agreement, 3) the undisputed evidence showed that appellee received retirement benefits, and 4) Arkansas law supports a finding that retirement benefits are marital property even if due to disability.

Appellant cites no law or authority to support the conclusory argument she first raises, that the property-settlement agreement stated she “was entitled to any retirement benefits.” Her second argument, that the circuit court was without authority to modify the agreement, was not made to the trial court. It has long been held that the appellate courts will not address arguments unless they are sufficiently developed and include citation to authority. Gatzke v. Weiss, 375 Ark. 207, 289 S.W.3d 455 (2008). It is also well settled that | (¡arguments made for the first time on appeal will not be considered. City of Fort Smith v. MeCutchen, 372 Ark. 541, 279 S.W.3d 78 (2008).

Appellant’s third argument is that “the undisputed evidence” showed that ap-pellee’s APERS payments were retirement benefits. She notes that APERS defined “benefits based on disability” as retirement benefits, and she asserts that appel-lee clearly anticipated that they would be subject to division under the property-settlement agreement. And again, as in her second argument not raised below, she argues that the circuit court was without jurisdiction to modify the agreement.

When a contract provision is susceptible to two reasonable interpretations, its meaning is a question of fact for the trial court to determine. Hickman v. Kralicek Realty & Construction Co., 84 Ark.App. 61, 129 S.W.3d 317 (2003); McKay Properties, Inc. v. Alexander & Associates, 63 Ark.App. 24, 971 S.W.2d 284 (1998). Decisions sounding in equity are reviewed de novo on appeal and are not reversed unless we find that the circuit court’s decision is clearly erroneous. Abbott v. Abbott, 79 Ark.App. 413, 90 S.W.3d 10 (2002). Applying this standard, we can find no fault with the circuit court’s interpretation.

Here, the parties disagreed whether the payments made to appellee as a result of his disability constituted “retirement pay” under the settlement agreement. Appellant argued to the circuit court that this was “an issue of law of the interpretation of the property settlement agreement.” Reiterating his testimony that he had no idea that his disability benefits were retirement benefits, he argued that it would not be equitable to hold him liable 17under the decree.

The settlement agreement stated that appellant was entitled to a share of appel-lee’s pension benefits upon his retirement from Game and Fish. Appellee explained in his testimony, which the circuit court clearly found credible, that the benefits he had received were unlike retirement benefits because they were not tied to years of service, were dependent upon a determination of disability for social-security purposes, and indeed had ceased after he achieved an income threshold. He further testified that he had never considered these benefits to be retirement benefits. The APERS letter and appellee both stated that the benefits he received after being declared disabled were not dependent upon age. The circuit court determined that the payments were in the nature of disability rather than retirement benefits, noting that they did not depend upon age or time in service. We find no error in the court’s interpretation of “retirement benefits” in the settlement agreement.

We also believe that it was reasonable for the trial court to conclude that appellant’s entitlement to retirement benefits as contemplated under the decree would occur when appellee was paid benefits that were vested, irrevocable, or permanent in nature instead of tied to whether or not he could work. We cannot say that its finding is clearly erroneous.

Appellant’s final argument is that Arkansas law supports a finding that retirement benefits are marital property even if due to disability. She asserts that the circuit court’s ruling was contrary to public policy and that the money appellee received, whether disability | ¿payments or a retirement benefit, was subject to division as marital property. Again, she asserts that the court’s ruling was contrary to the parties’ agreement.

Our marital property statute requires that all property acquired subsequent to the marriage be divided, with certain exceptions not applicable here. Burns v. Burns, 312 Ark. 61, 847 S.W.2d 23 (1993). Retirement or pension benefits that have not vested at all have been held, in non-community property states with such statutes, not to be property subject to division or direct consideration in making such equitable property divisions. Id. To the extent a party acquires an enforceable right during the marriage, the party acquires marital property. See Bunt v. Bunt, 294 Ark. 507, 744 S.W.2d 718 (1988) (stating that to the extent Mr. Bunt acquired an enforceable right during the marriage to recover for personal injury, he acquired marital property).

Through the property-settlement agreement in this case, appellee agreed to give appellant half of a 9/20 interest in his retirement benefits when he received them. However, he was not vested in benefits of any type from Game and Fish prior to the divorce and clearly had not acquired an enforceable right to disability payments. The circuit court interpreted the contract and found that the word “retirement” as used in the agreement did not include disability payments he had received eleven years after the divorce. We find no clear error in this ruling.

Affirmed.

PITTMAN and ROBBINS, JJ., agree.

      . A colloquy between the court and the parties' attorneys established that APERS administered the plan for Game and Fish employees.

      . Appellee testified that these benefits were retroactive to April 2003.


author: KAREN R. BAKER, Judge.

text:
    2009 Ark. App. 346
    Detriawn WADE, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-782.
    Court of Appeals of Arkansas.
    April 29, 2009.
    Rehearing Denied June 3, 2009.

      S. Butler Bernard, Jr., West Memphis, for appellant.
    Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for ap-pellee.
   KAREN R. BAKER, Judge.

hOn March 18, 2008, a jury in Critten-den County convicted appellant, Detriawn Rondell Wade, of rape, a Class Y felony, and fourth-degree sexual assault. He was sentenced to twenty-six years’ imprisonment for the rape conviction and six years’ imprisonment for the assault conviction. He raises two points on appeal. He argues first that the trial court erred by denying his motion to dismiss for lack of a speedy trial. Second, he argues that the trial court erred in denying his motion for a directed verdict. Finding no error, we affirm.

On September 26, 2006, the State of Arkansas filed a felony information. An amended two-count information was filed on September 24, 2007. In the amended information, count one alleged that appellant engaged in sexual intercourse between November 2004 and June 2006 with his niece who was less than eighteen years of age. |2Count two of the information alleged that appellant, being twenty years of age or older, engaged in sexual activity on or between November 2004 and June 2006 with another person who was less than sixteen years of age and not his spouse.

At trial, the marriage certificate of appellant and Elizabeth Wade was introduced into evidence. Testimony showed that Elizabeth Wade was the victim’s aunt: the victim’s mother and Elizabeth were sisters. The victim, appellant’s niece, gave birth to a baby on October 29, 2005; she was fifteen years old at the time. DNA testing conducted in both 2006 and 2007 confirmed that appellant was the biological father of the child. The victim testified that between November 2004 and June 2005, she and appellant engaged in sexual intercourse “at least, if not more than 50 times. About three or four times a week.”

At the conclusion of the State’s case, appellant’s counsel made a motion for a directed verdict based on the fact that the rape statute did not include an uncle related only by marriage. The trial court denied the motion. Appellant’s counsel renewed the motion at the close of the evidence, and the motion was again denied. Ultimately, appellant was convicted of rape and sexual assault. This appeal followed.

Appellant contends that the trial court erred in denying his motion for a directed verdict. Our standard of review for a sufficiency challenge is well settled. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Gillard v. State, 372 Ark. 98, 270 S.W.3d 836 (2008) (citing Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007)). We have repeatedly held that in reviewing a challenge to the sufficiency of the | c,evidenee, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We affirm a conviction if substantial evidence exists to support it. 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. Id.

Appellant was convicted of rape pursuant to Arkansas Code Annotated section 5-14-103 (Repl.2006), which provides in pertinent part: “(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person: ... (4)(A) Who is less than eighteen (18) years of age and the actor is the victim’s: (ii) Uncle....” Ark.Code Ann. § 5-14-103. Appellant asserts that the State failed to meet the statutory element that he was the victim’s uncle. His argument focuses on the fact that he was the victim’s uncle by affinity only, as evidenced by the marriage certificate, and not the victim’s uncle by consanguinity. Relying on this distinction, he asserts that there was insufficient evidence to support his conviction.

Appellant asserts that the word “uncle” in the rape statute refers only to an uncle who is related by blood to the victim. Because this court has not previously interpreted the word “uncle” in the context of the rape statute at issue here, we are called upon to do so now.

This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. See Stivers v. State, 354 Ark. 140, 118 S.W.3d 558 (2003). We construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic rule of statutory construction, which 14is to give effect to the intent of the legislature. See id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. See id. Additionally, in construing any statute, we place it beside other statutes relevant to the subject matter in question and ascribe meaning and effect to be derived from the whole. See id.

Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009). Moreover, as our supreme court stated in Heikkila v. State, 352 Ark. 87, 90, 98 S.W.3d 805, 807 (2003):

The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature. Williams, 347 Ark. at 742, 67 S.W.3d 548. We are without authority to declare an act to come within the criminal laws of this state by implication. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). It would violate the accepted canons of interpretation to declare an act to come within the criminal laws of the State merely by implication. Lewis v. State, 220 Ark. 259, 247 S.W.2d 195 (1952) (citing State v. Simmons, 117 Ark. 159, 174 S.W. 238 (1915)). Nothing is taken as intended which is not clearly expressed. Graham v. State, 314 Ark. 152, 861 S.W.2d 299 (1993); Hales v. State, 299 Ark. 93, 771 S.W.2d 285 (1989).

Heikkila is instructive in this case. In Heikkila, the court interpreted the incest statute, Ark.Code Ann. § 5-26-202 (Repl. 1997), and determined that it applied to an uncle by marriage. Heikkila, 352 Ark. at 91, 98 S.W.3d at 807. In so finding, the court in Heikkila explained:

The incest statute prohibits sexual intercourse or deviate sexual activity with five named categories of persons, including “uncle, aunt, nephew or niece.” The word “niece” is not defined in the statute. However, the statute in its express terms creates criminal liability for sexual intercourse or deviate sexual activity with one’s niece. Webster’s defines a niece as a female descendant or relative, a daughter of one’s brother or sister, or a daughter of one’s brother-in-law or sister-in-law. Black’s defines niece as “the daughter of a person’s brother or sister; sometimes understood to include the daughter of a person’s brother-in-law or sister-in-law.” Black’s Law Dictionary 1066 (7th ed. 1999). Webster’s Third New International Dictionary, 1526 (1993). Both |5nieces in this case were the daughters of Heikkila’s sister-in-law. When the words used in a statute have a well-defined meaning, and the wording of the statute is clear, we give those words their plain meaning. Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993). Therefore, under the express terms of the statute, the conduct between Heikkila and his nieces was prohibited.

Id. Here, the rape statute prohibits sexual intercourse or deviate sexual activity with different categories of people including an uncle, aunt, grandparent, stepgrandparent, or grandparent by adoption. The word “uncle” is not defined in the statute. Moreover, the word “uncle” is not defined in the latest edition of Black’s Law Dictionary. Black’s Law Dictionary 1560 (8th ed. 2004). However, Webster’s Third New International Unabridged Dictionary defines “uncle” as “la: the brother of one’s father or mother” and “lb: the husband of one’s aunt....” Webster’s Third New International Unabridged Dictionary 2485 (1993). Thus, general understanding of the word “uncle” includes the husband of a blood aunt.

In this case, we reject appellant’s interpretation of the relevant statute and hold that appellant was the victim’s uncle, per the plain meaning of the wording of the statute. As does the incest statute at issue in Heikkila, the rape statute in the present case protects the integrity of the family. The familial relationship extends to a relationship by affinity as well as a blood relationship. Sexual intercourse between a girl under eighteen and her uncle by marriage is equally disruptive of the family as would be sexual activity between her and her uncle by blood. See Heikkila, supra. In keeping with this purpose, we hold that ample evidence supports the fact that appellant, the victim’s uncle, engaged in sexual intercourse |fiwith the victim when she was less than eighteen years old.

Appellant also presents a speedy-trial argument. He alleges that the trial court erred by denying his motion to dismiss for lack of a speedy trial. The right to a speedy trial is expressed in the Bill of Rights, U.S. Const, amend. 6, and guaranteed to state criminal defendants by the

Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Arkansas Rules of Criminal Procedure 28.1(c) and 28.2(a) require the State to bring a defendant to trial within twelve months from the date the charge is filed in circuit court or, if the defendant has been lawfully set at liberty pending trial, from the date of arrest. See also Rose v. State, 72 Ark.App. 175, 35 S.W.3d 365 (2000). We have placed responsibility on the defendant to be available for trial; therefore, such time delays which result from a failure to appear for trial are excluded. Ballard v. State, 75 Ark.App. 15, 53 S.W.3d 53 (2001) (citing Henson v. State, 38 Ark.App. 155, 832 S.W.2d 269 (1992)); see also Ark. R.Crim. P. 28.3(e). However, the State has the burden to show that any delay was the result of the defendant’s conduct or was otherwise justified. Id. (citing Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999)). The State also has the duty to show that it made diligent, good-faith effort to bring the accused to trial. Id. (citing Brown v. State, 330 Ark. 239, 952 S.W.2d 673 (1997); Duncan v. Wright, 318 Ark. 153, 883 S.W.2d 834 (1994); Chandler v. State, 284 Ark. 560, 683 S.W.2d 928 (1985)).

Arkansas Rule of Criminal Procedure 28.3 states in relevant part as follows:

The following periods shall be excluded in computing the time for trial.
|7(c) The period of delay resulting from a continuance granted at the request of the defendant or his counsel. All continuances granted at the request of the defendant or his counsel shall be to a day certain, and the period of delay shall be from the date the continuance is granted until such subsequent date contained in the order or docket entry granting the continuance.

In the present case, appellant contends that the appropriate dates for exclusion ran from the dates of each of his motions for a continuance until the next pre-trial date following the relevant motion. We disagree. Each of appellant’s requests for continuances caused the case to be continued from a certain trial date to a trial date that was not specifically ascertainable until after the pre-trial hearing. Clearly, a motion for a continuance necessitates a delay until a jury can be impaneled to hear the case. Therefore, the period of time from one set trial date to the next is attributable to appellant and excludable for purposes of speedy trial.

Here, the record demonstrates that appellant filed his first motion for a continuance on July 18, 2007. His motion was granted, and the trial date was rescheduled for September 24, 2007. Appellant also filed a second motion for a continuance on November 13, 2007. That motion was also granted and a new trial date was set for January 2, 2008. Again, on January 2, 2008, appellant requested and was granted yet another continuance. The trial date was then rescheduled for March 17, 2008. Each of the three delays in appellant’s trial dates was a result of his own motions for continuances, which pursuant to Ark. R.Crim. P. 28.3(c) was time that was properly excluded in calculating the time for trial. See Branning v. State, 371 Ark. 433, 267 S.W.3d 599 (2007) (stating that delays resulting from |scontinuances given at the request of the defendant are excluded in calculating time for speedy trial). Excluding the time periods related to appellant’s motions for continuances puts the March 17, 2008 trial date within the one-year time period for speedy trial.

Affirmed.

VAUGHT, C.J., and MARSHALL, J., agree.


author: ROBERT J. GLADWIN, Judge.

text:
    2009 Ark. App. 332
    RWR PROPERTIES, INC., Appellant, v. M. Pauline YOUNG, et al., Appellees.
    No. CA 08-1013.
    Court of Appeals of Arkansas.
    April 29, 2009.

      Stephen E. Whitwell, North Little Rock, for appellant.
    Wright, Lindsey & Jennings, LLP, by: James R. Van Dover, Little Rock, for ap-pellee.
   ROBERT J. GLADWIN, Judge.

| Appellant RWR Properties, Inc., appeals the May 22, 2008 order of the Jefferson County Circuit Court granting summary judgment in favor of appellees Pauline Young and Richard and Loretta Hudspeth (the Hudspeths). On appeal, appellant contends that the circuit court erred in granting the motions for summary judgment and setting aside the tax sale prior to such time as Ms. Young’s deposition could be taken. We affirm.

Facts

This appeal involves property located in Pine Bluff, Jefferson County, Arkansas, specifically the center lot of three contiguous lots owned for many years by Ms. Young. Ms. Young’s home sat on portions of the three contiguous lots, and the mailing address for the home was 1100 North Lee Street, Pine Bluff, Arkansas. In January 1997, Ms. Young decided to move to be near her sister in Missouri, and she contracted to sell her home to the laHudspeths. The Hudspeths arranged to borrow the purchase funds from Weyer-hauser Mortgage Company, which in turn engaged Standard Abstract and Title Company (Standard) to prepare the required documents and conduct the closing of the transaction. It is undisputed that in drafting the related warranty deed and deed of trust, Standard omitted the description of the center lot. Accordingly, the record title for the center lot remained with Ms. Young.

In October 1998, the Hudspeths refinanced the mortgage debt on the property through EquiFirst Corporation. Equi-First also engaged Standard to serve as the closing agent. Again, Standard omitted the description of the center lot when preparing the deed of trust.

It is also undisputed that the 1997 real estate taxes extended against the center lot were not paid. In May 2000, the center lot was certified to the Commissioner of State Lands (Commissioner) as being tax delinquent. On June 30, 2000, the Commissioner sent the required Notice of Delinquent Real Estate Taxes, via certified mail, addressed to Ms. Young, at the Lee Street address. The envelope containing the notice was returned to the Commissioner, unopened and marked “unclaimed.” It is undisputed that this single mailing was the only attempt at notice directed to Ms. Young.

Neither a review by the Commissioner nor the Commissioner’s records themselves indicated that the Hudspeths held any interest in the property. Despite that, on June 15, 2001, and prior to the sale, the Commissioner sent a petition to redeem, via regular mail, addressed to the Hud-speths, to the Lee Street address. That petition indicated that Ms. | .¡Young was the record owner of the center lot. The petition contained the date of the auction, the parcel number, and the legal description of the center lot. The petition, according to the Commissioner’s records, was never returned.

The property did not sell at auction and was thereafter offered at negotiated sale. Prior to that sale, the Commissioner conducted pre-sale research, which resulted in no further information about either the ownership of the property or the location of Ms. Young. On November 30, 2004, the Commissioner accepted appellant’s offer of $51.51 for the center lot and executed Limited Warranty Deed No. 149197.

On November 4, 2005, subsequent to the running of the statute of limitations regarding any closing-agent malpractice action Ms. Young might have had against Standard, appellant filed a complaint to quiet title to the center lot and to have Ms. Young’s claims, titles, and interests foreclosed. Ms. Young filed an answer to the complaint on January 27, 2006, followed by the Hudspeths filing an answer on February 27, 2006, in response to the warning order. The circuit court allowed the Hud-speths to become a party to the action.

The Commissioner’s designee, Lisa Pel-ton, was deposed by the parties. Her testimony confirmed that the Commissioner, after receiving the unopened, “unclaimed” envelope containing the notice of delinquent real estate taxes addressed to Ms. Young, took no additional steps to assure that Ms. Young received that notice. She did acknowledge that the Commission sent a petition to redeem to the Hudspeths at the same address via regular mail. Appellant did not contradict Ms. Pelton’s testimony.

|4On November 10, 2006, appellant’s counsel sent a letter to Ms. Young’s counsel requesting dates that Ms. Young would be available to be deposed. On November 28, 2006, appellant’s counsel sent a followup request to Ms. Young’s attorney. On November 29, 2006, Ms. Young’s attorney sent a reply to appellant’s attorney with the information that appellee was still recovering from late summer back surgery. He indicated that she was unable to travel at the time and still taking pain medication, and suggested that appellant’s counsel check back in late January 2007. On February 23, 2007, Ms. Young filed a motion for summary dismissal, and the Hudspeths did likewise on March 7, 2007. Appellant filed a response to both Ms. Young’s and the Hudspeths’ motions for summary dismissal on March 7, 2007.

Because the motions were accompanied by documents outside the pleadings, the circuit court treated the motions as motions for summary judgment pursuant to Arkansas Rule of Civil Procedure 56. On May 22, 2008, the circuit court granted the motions of Ms. Young and the Hudspeths. Appellant filed a timely notice of appeal on June 20, 2008.

Standard of Review

The law is well settled that summary judgment is to be granted by a circuit court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. See Felton v. Rebsamen Medical Center, Inc., 373 Ark. 472, 284 S.W.3d 486 (2008); Stromwall v. Van Hoose, 371 Ark. 267, 265 S.W.3d 93 (2007). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence ofUa material issue of fact. See Felton, supra. 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. See 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. See id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. See id.

Discussion

1. Discovery Issue

Appellant asserts that the primary issue here is whether the circuit court erred in granting summary judgment. Appellant claims it did because summary judgment should not have been granted prior to the time that appellant was able to depose Ms. Young. Appellant cites First National Bank v. Newport Hospital & Clinic, 281 Ark. 332, 663 S.W.2d 742 (1984) and Pults v. City of Springdale, 23 Ark.App. 182, 745 S.W.2d 144 (1988), for the proposition that summary judgment is improper where discovery has not been completed. In the present case, appellant claims it attempted to take the deposition of Ms. Young with no success. Appellant maintains that the central issue in this case is whether Ms. Young received notice of the pending tax sale, and further claims that there was nothing before the circuit court to indicate that she did not have knowledge of the tax sale. She failed to provide an affidavit stating that she never received notice. Appellant alleges that the circuit court merely assumed that she had no knowledge of the tax sale based upon the return of the letter from the Commissioner “unclaimed.” Because there was evidence that the occupants of the property — the Hudspeths — requested and received a petition to redeem the property, appellant urges that the testimony of Ms. Young was critical to the issue before the circuit court. As the moving party in this matter, she bore the burden of showing that there was no genuine issue of material fact. See Young v. Paxton, 316 Ark. 655, 873 S.W.2d 546 (1994).

Ms. Young points out that some fourteen-and-a-half months elapsed between the time she filed her motion for summary dismissal on February 23, 2007, and the date the circuit court granted her motion on May 22, 2008. Appellant did nothing over that extended period to compel her deposition by giving the notice provided by Rule 30 of the Arkansas Rules of Civil Procedure (2008), or to ask for a delay in the proceedings by filing an affidavit as prescribed by Rule 56(f) of the Arkansas Rules of Civil Procedure (2008), or to even request a continuance. Appellant did not avail itself of any of these measures at any time before it first complained on March 7, 2007. The response to Ms. Young’s motion for summary dismissal, filed on that date, contains the only reference to the unavailability of Ms. Young’s testimony. Appellant alleged “that summary judgment is improper at this time because discovery had not been completed. Plaintiff has attempted to arrange for the deposition of YoungU but she has been unavailable for deposition.” Ms. Young states that this response was not verified, did not refer to Rule 56(f), and did not assert appellant’s inability to “present by affidavit facts essential to justify opposition.”

Even if paragraph nine of appellant’s response to Ms. Young’s motion for summary dismissal were to be construed to comply with the requirements of Rule 56(f), appellant |7never took any additional steps to make its predicament known to the circuit court or to seek a ruling on this issue. Ms. Young maintains that appellant’s failure to obtain such a ruling proee-durally bars this court from considering the question of whether the circuit court’s ruling on the motions for summary dismissal was premature. See Barker v. Clark, 343 Ark. 8, 33 S.W.3d 476 (2000).

Upon learning that the Commissioner’s efforts to deliver the notice of delinquent real estate taxes to Ms. Young via certified mail had failed, appellant knew that it would be unable to make its prima facie case, or at least meet proof with proof regarding the motions for summary dismissal, without having Ms. Young’s testimony. In order to prevail, appellant had to show that Ms. Young received notice of the sale. While the motions for summary judgment were pending, the trial was rescheduled from June 25, 2007, to May 19, 2008, and then to April 14, 2008, before being transferred to the Fifth Division Circuit Court. Ms. Young asserts that these unanticipated delays provided appellant with even more opportunity to notice up her deposition, comply with Rule 56(f), file an explicit motion for a delay or continuance, and request a hearing on the issue. Appellant failed to do even one of these things.

Regarding the specific cases cited by appellant, Ms. Young states that in First National Bank v. Newport Hospital & Clinic, supra, the defendants moved for summary judgment after being served with interrogatories and requests for production of documents. Summary judgment was granted without waiting for defendant to respond, but our supreme court vacated the ruling on appeal. Ms. Young distinguishes that case in two respects, (1) it does |8not mention Rule 56(f) or the defendant’s reliance upon it, and (2) she was never served any written discovery or notice for deposition in the instant case.

With respect to Pults, supra, Ms. Young argues that the case in no way supports appellant’s argument. Pults involved the interpretation of a written airport lease and the application of the rule against perpetuities. From our reading of Pults, the need for additional facts, the existence of unanswered discovery, the involvement of Rule 56(f), or the improper entry of summary judgment cannot be gleaned from that decision, which simply states that it was proper for the circuit judge to decide the case by summary judgment because no material facts were in genuine dispute.

In summary, Ms. Young asserts that if her testimony was truly “essential to justify [appellant’s] opposition” and would have allowed appellant to create a genuine issue of material fact, surely appellant would have “forcefully pursued to the proper courses of self-preservation and protection.” We agree. A party cannot successfully resist a motion for summary judgment by ignoring a fact adduced by affidavit or deposition. If the party otherwise entitled to judgment as a matter of law moves for summary judgment and shows that no dispute of material fact exists, the responding party must counter with facts showing the existence of a factual dispute; otherwise, the appellate court must affirm the circuit court’s grant of summary judgment. Golden Tee, Inc. v. Venture Golf Schools, Inc., 333 Ark. 253, 969 S.W.2d 625 (1998).

In its response brief, appellant cites Pledger v. Carrick, 362 Ark. 182, 208 S.W.3d 100 (2005), in which our supreme court reversed the grant of summary judgment, noting that |3the appellant was “not denied discovery from the opposing party; however, he was denied the benefit of completing the discovery that, in his opinion, would have allowed him to develop, if obtainable, the necessary proof in this case.” Id. at 196, 208 S.W.3d at 106. Accordingly, appellant maintains that the issue is not whether the moving party was at fault in regards to the completion of discovery, but simply whether the discovery was in fact completed. While we do not dispute the analysis in Pledger, it does not support appellant’s extension of that analysis to hold that a party can simply sit on its hands and do absolutely nothing to further the process along — if so, a party could always prevent summary judgment from being granted for this very reason.

Finally, appellant contends that appel-lee’s argument confuses the issue of who had the burden of proof, maintaining that, as the moving party, Ms. Young had the burden to show that she did not receive notice of the tax sale. Appellant claims that while she put on proof that she did not receive the certified notice sent by the Commissioner, she failed to show that she never received notice through other means. Appellant claims that a fact issue exists, even if the facts are not in dispute, if the facts may result in differing conclusions as to whether the moving party is entitled to judgment as a matter of law. See Ultracuts Ltd. v. Wal-Mart Stores, Inc., 343 Ark. 224, 33 S.W.3d 128 (2000).

As previously stated, once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Rees v. Smith, 2009 Ark. 169, 301 S.W.3d 467. On appellate review, we determine if summary judgment was appropriate based on whether the |, nevidentiary items presented by the moving party in support of its motion leave a material fact unanswered. Id. We hold that they did not. Even reviewing the evidence in the light most favorable to appellant — as the party against whom the motion was filed — and resolving all doubts and inferences against the moving party, we hold that appellant failed to meet proof with proof. We cannot say, under the evidence, that reasonable persons might reach different conclusions from those undisputed facts. Accordingly, we affirm the circuit court’s grant of summary judgment.

II. Notice Under Arkansas Code Annotated Section 26-37-301

Appellant also raises an issue regarding the notice requirements of Arkansas Code Annotated section 26-37-301 (Repl.1997), which provides for notice to owners of property regarding a pending tax sale and redemption of realty to be sold, and the applicability of potential “additional reasonable steps” contemplated by the United States Supreme Court in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006). The argument before us is whether the additional step of sending the petition to the Hudspeths would qualify as a sufficient follow-up step that might be taken by the Commissioner prior to the forfeiture of property for nonpayment of taxes to satisfy the due-process requirements discussed by the United States Supreme Court in Jones v. Flowers, supra, and if such an additional step was even necessary under the circumstances.

We hold that summary judgment was appropriate because there was no dispute that notice to Young was a single unclaimed letter sent by certified mail — precisely the notice that the U.S. Supreme Court found constitutionally inadequate in Jones v. Flowers. ^Accordingly, some additional step reasonably calculated to give Young notice was required. Further we hold that a mailing to the Hudspeths did not, as a matter of law, satisfy the requirements of due process.

Affirmed.

HART and KINARD, JJ., agree.


text:
    2009 Ark. App. 373
    Clifton GHOLSON, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1100.
    Court of Appeals of Arkansas.
    May 6, 2009.
    C. Brian Williams, West Memphis, for appellant.
    Dustin McDaniel, Att’y Gen., by: Leaann J. Irvin, Ass’t Att’y Gen., for ap-pellee.
   KAREN R. BAKER, Judge.

| T Appellant Gholson appeals from the revocation of his suspended sentence and the subsequent denial of his motion to vacate the judgment and commitment order. He argues that the trial court had no authority to set aside a nolle prosequi order erroneously entered prior to his revocation hearing and that the erroneously entered order rendered the pending petition nonexistent, which violated his due-process rights. The trial court in this case appropriately entered a judgment nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 5.W.2d 682 (1999). The standard of review here is abuse of discretion. Id. We hold the trial court did not abuse its discretion and affirm.

On February 17, 1998, Gholson pled guilty to two counts of battery in the first degree, for which he received a sentence of 240 months’ incarceration and 120 months’ | gsuspended sentence. On October 9, 2007, the State filed a petition to revoke his suspended sentence, alleging that appellant had violated the following conditions of his suspended sentence: (1) failure to pay fine, costs, and fees; (2) commission of rape; (3) failure to notify the sheriff of his current address and employment. Various scheduling orders and an order directing the return of appellant to the county for the purpose of giving testimony in his revocation case were entered from October 9, 2007 through January 18, 2008. The last scheduling order set the revocation proceeding for March 6, 2008. An order of nolle prosequi as to the petition to revoke was signed and filed of record on February 26, 2008. Despite the fact that the nolle prosequi order was entered, a hearing on the petition to revoke was held on March 6, 2008. The March 6 hearing proceeded as scheduled, and the trial court ultimately revoked Gholson’s suspended sentence finding that he had violated the terms of his suspended sentence by committing the act of rape. No one acknowledged or referenced the entry of a nolle prosequi order in this case, prior to, during, or immediately after the revocation hearing.

Appellant later learned of the entry of the nolle prosequi order and filed a motion to set aside the judgment on March 18, 2008. He alleged that pursuant to Ark. R.Crim. P. 37.2, the February 26, 2008 order of nolle prosequi left the court without subject-matter jurisdiction to hear the revocation petition. Gholson amended that motion on March 20, 2008, to clarify that he did not become aware of the order nolle prosequi until March 17, 2008, and to note the absence of a new petition to revoke on the part of the State. On |sMarch 25, 2008, the State filed a response, alleging that the order of nolle prosequi was entered and filed erroneously. The State explained that the case number was provided to the prosecuting attorney’s office by the Administrative Office of the Courts in a list of active stale cases, and that the order was presented to the trial court in error, having been included in a stack of orders intended to dismiss stale cases in which no activity had occurred within the past year. After a hearing, the trial court set aside the nolle prosequi order, citing that it was a scrivener’s error, and simultaneously denied Gholson’s motion to set aside his revocation. This appeal followed.

The authority of the court to set aside the order of nolle prosequi directly affects the success or failure of appellant’s arguments. Appellant merely states that the “trial court did not have authority to set aside the nolle prosequi order and reinstate the revocation petition as requested by the State.” He cites no authority for that proposition, but merely reinforces his assertion by stating that “the State did not give any authority, and appellant has found none, wherein the trial court had the authority to change its order.”

Contrary to appellant’s suggestion, authority does exist for the trial court to set aside the nolle prosequi order. A circuit court judge may set aside its own order dismissing charges in a criminal case if the original order was entered in error. See Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977) (holding that a trial court may set aside its own order in the same term of court without notice to the parties if the original order was entered in error). Additional authority also supports a trial court’s authority to set aside an order erroneously | ¿entered in a criminal case. While appellant argues that our supreme court does not allow the application of Arkansas Rule of Civil Procedure 60 in criminal cases, he is only partially correct. Our supreme court has specifically acknowledged that the theory behind Rule 60 has been applied in those criminal cases where it recognized a trial court’s power to correct a judgment nunc pro tunc to make it speak the truth. State v. Dawson, 343 Ark. 683, 38 S.W.3d 319 (2001).

As orders entered in error do not speak the truth, courts have the power to enter an amended judgment and commitment order nunc pro tunc to correct an erroneous judgment. McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999); Willis v. State, 90 Ark.App. 281, 205 S.W.3d 189 (2005). Our supreme court has defined a true clerical error, one that may be corrected by nunc pro tunc order, as “essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else).” Francis v. Protective Life Ins. Co., 371 Ark. 285, 293, 265 S.W.3d 117, 123 (2007) (citing Luckes v. Luckes, 262 Ark. 770, 772, 561 S.W.2d 300, 302 (1978)).

The trial court in this case determined that the entry of the nolle prosequi order resulted from a mistake by an officer of the court, the prosecutor, by presenting the case as one of the many cases in which no activity had occurred in over a year that were ripe for dismissal. The record supports the trial court’s finding that the order for nolle prosequi of the petition to revoke was entered in error. The form, which became the erroneously entered nolle prosequi order in this case, was generated in response to a list prepared by the | -'Administrative Office of the Courts (AOC). The AOC list was included in the supplement to the record and identified a list of active stale cases. The prosecutor stated that the intent was to nolle prosequi the stale cases. The list as presented in the briefs was twenty-nine pages of difficult to read case numbers and names including various information regarding the cases. Our review of the list indicates that neither appellant’s name nor his case number were included on the list; however, the difficulty in ascertaining the numbers or names on the list demonstrates the ease with which case names and numbers could be misread.

At the hearing on appellant’s motion to set aside judgment, the prosecutor explained that the AOC directed the circuit courts to “clean up” the dockets and to close inactive cases. The prosecutor stated that he personally “sat down and went through the docket and spent a number of hours going through those forms.... This case happened to be in the midst of that group and I erroneously looked at the docket sheet.... The name didn’t register at that time. I did a Nolle Pros order and put it in the stack with a number of others, which Your Honor signed off on at some later date.” Moreover, it is clear that at no time before or during the hearing on the petition to revoke were the parties or the judge aware that the petition to revoke had been nolle prossed. In conducting the hearing, all parties proceeded as if the petition to revoke was pending.

Our supreme court has explained the wisdom in recognizing the trial court’s inherent power to correct erroneously entered judgments, particularly when the appellant is fully aware of the nature of the proceedings:

| fiHere, appellant was aware at all times that he was being tried for crimes he committed in 1986. He had been put on notice by the State of the correct dates for the crimes and was not prejudiced by his trial for the 1986 crimes. This case presents the exact situation where a clerical error may have been corrected by a nunc pro tunc order. Clerical errors of this type do not entitle appellant to a writ of habeas corpus.
Appellant’s petition has failed to show that he was being detained without lawful authority. Appellant was not tried for crimes that he had not yet “consummated.” A mere clerical error in the offense dates stated in the judgment and commitment order does not negate the jurisdiction of the trial court as the clerical error does not speak the truth. Appellant failed to prove that the judgment and commitment order was invalid on its face or that the trial court lacked jurisdiction over the cause.

Carter v. Norris, 367 Ark. 360, 363, 240 S.W.3d 124, 127 (2006) (citations omitted).

Similar to the appellant in Carter, appellant was fully aware of the allegations pending against him in this revocation proceeding. He participated in the hearing and was afforded the full opportunity to address each and every allegation presented by the State. The only fact of which he was not aware, at the time of the hearing, was that an order erroneously dismissing his case had been filed with the clerk.

Accordingly, we find no error with the trial court setting aside the nolle prosequi order. With the removal of the nolle pro-sequi order, the State’s petition was unaffected by the erroneously entered order.

Appellant contends that his due process rights were violated because, as a result of the order for nolle prosequi, the petition requirements of § 5-4-310(b)(3) (Repl. 2006) were not met. Arkansas Code 17Annotated section 5-4-310(b)(l) provides that a suspension or probation shall not be revoked except after a revocation hearing. Arkansas Code Annotated section 5-4-310(b)(3) states that “[t]he defendant shall be given prior written notice of the: (A) Time and place of the revocation hearing; (B) Purpose of the revocation hearing; and (C) Condition of suspension or probation the defendant is alleged to have violated.” Each of the requirements of section 5-4-310 was met in this case.

Appellant does not dispute that he had actual notice of the requirements in Arkansas Code Annotated section 5 — 4—310(b)(3). Appellant does not argue that the State failed to provide him with notice of the time and place of his revocation hearing, the purpose of the revocation hearing, and the conditions of suspension that he was alleged to have violated. See Ark.Code Ann. § 5^4 — 310(b)(3). Here, appellant was present at the hearing, was provided the opportunity to hear and controvert evidence against him at the hearing, was provided the opportunity to offer evidence in his own defense, and was represented by counsel. See Ark.Code Ann. § 5-4-310(b)(4) (Repl.2006) (stating that “the defendant has the right to: (A) Hear and controvert evidence against him or her; (B) Offer evidence in his or her own defense; and (C) Be represented by counsel”). See Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984) (holding that in light of the fact that Reynolds received actual notice of the time and place of the hearing and did not ask for a continuance, there was no error in the lack of written notice of the time and place of the revocation hearing).

Moreover, appellant has failed to demonstrate that any due process protecting fundamental fairness was not provided to him. He has failed to show any prejudice, without which we will not reverse. Here, a hearing was held, appellant was found to have | committed the offense of rape, and the court revoked his probation. Given these unique facts, we cannot say the trial judge abused his discretion in refusing to set aside the judgment and commitment order.

Affirmed.

VAUGHT, C.J., and MARSHALL, J., agree.


author: /s/ John D. Minton, Jr. Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. James Kevin MATHEWS, Respondent.
    No. 2010-SC-000024-KB.
    Supreme Court of Kentucky.
    April 22, 2010.
   OPINION AND ORDER

The Board of Governors for the Kentucky Bar Association (KBA) has recommended that Respondent, James Kevin Mathews, KBA Member No. 84435, with a last known bar roster address of 1812 Elm Street, Henderson, Kentucky 42420, be permanently disbarred from the practice of law and ordered to pay full restitution to his client. We agree with the Board’s rulings and adopt its recommendations.

KBA File No. 16272

Mathews represented Matthew Meyer in a personal injury case and obtained a $45,000 settlement. Mathews’ fee was $18,000, plus an additional $2,279.60 in expenses, and Mathews turned over a check to Meyer in the amount of $9,720.40 with the understanding that he would assist him in obtaining an annuity with the remaining $15,000. Meyer never received any payments on the annuity and, several months later, Mathews stated that Meyer should withdraw the money from the annuity. Accordingly, Mathews stated that he would obtain the necessary paperwork.

Meyer waited several months but did not receive any documents from Mathews. When Meyer called, Mathews vowed that he would obtain the documents and send Meyer a personal check for $1,000 to assist him with his bills. Meyer never received the check but eventually received the doc-uraents, which he signed, notarized, and returned to Mathews.

Meyer never received his money and he called Mathews again. Mathews stated that he would contact the company himself, but he later informed Meyer that he was unable to make contact with anyone. Consequently, Mathews stated that he would consult with the judge regarding the matter. Meyer, however, never heard from Mathews again and never received his remaining $15,000.

The Disciplinary Clerk filed Meyer’s Bar Complaint and sent a copy to Mathews via certified mail before it was later returned “unclaimed,” indicating three attempts at service. On May 7, 2008, Mathews was personally served by the Jefferson County Sheriff, but he failed to file a response within twenty days. A reminder letter was sent and similarly returned after several attempts at service. Mathews was no longer at his previous address and could not be found.

Investigating the Bar Complaint, the Inquiry Commission issued a subpoena seeking Mathews’ escrow account records. The records showed that Mathews withdrew the remaining proceeds from Meyer’s settlement in late May and early June of 2007. According to information obtained from JMW Settlements, the company that supposedly provided the annuity, Mathews wrote a check to Hartford Life on or around June 5, 2007 to fund Meyer’s annuity. The check, however, was returned due to insufficient funds and the annuity was, in fact, never funded.

On June 4, 2009, Mathews sent an email to the KBA stating that his membership had lapsed. On June 18, 2009, he contacted the Office of Bar Counsel, who informed him of the status of his disciplinary cases, obtained his new address, directed him to the reinstatement rule, and requested that he respond to the Bar Complaint. Mathews was also advised to update his bar roster address and, that same day, a copy of the Complaint was sent to his new address by certified mail.

Bar Counsel later received a letter from Mathews requesting more information and stating that he could not find any records showing that he had represented Meyer. Bar Counsel replied by letter, enclosing copies of the documents obtained by the Inquiry Commission’s subpoena as well as those obtained from Meyer’s Complaint. There was no further communication between Bar Counsel and Mathews.

On July 31, 2009, the Inquiry Commission issued a Charge against Mathews containing five (5) counts: Count I alleges that Mathews violated SCR 3.130-1.4(a) (communication) when he failed to respond to his client’s repeated requests for information; Count II alleges that Mathews violated SCR 3.130-1.15(a) (safekeeping property) when he failed to keep his client’s funds separate from his own funds; Count III alleges that Mathews violated SCR 3.130-3.4(c) (fairness to opposing party and counsel) and SCR 3.175(1) (notice of attorney’s address) by failing to maintain a current Bar Roster Address; Count IV alleges that Mathews violated SCR 3.130-8.1(b) (bar admission and disciplinary matters) by failing to respond to the Bar Complaint after receiving sufficient notification; and Count V alleges that Mathews violated SCR 3.130-8.4(c) (misconduct) when he told Meyer that he would fund an annuity with his settlement proceeds but converted the funds to his own use, and when he told Meyer that he was communicating with the annuity company when no such communication took place.

The Charge was mailed to Mathews the day it was issued. Though signing for its receipt, Mathews did not file a response to the Charge. A reminder letter was sent apprising Mathews of his obligation to file an Answer to the Charge, but he never did so.

After hearing the case, the Board unanimously found Mathews guilty on all five counts of the Charge and reviewed his prior discipline. In Kentucky Bar Ass’n v. Mathews, 283 S.W.3d 741 (Ky.2009), this Court suspended Mathews for one-hundred and eighty-one days for violations of SCR 3.130-1.3 (diligence), SCR 3.130-1.16(d) (termination of representation), SCR 3.130-3.4(e), and SCR S.lSO-S.Kb). In Kentucky Bar Ass’n v. Mathews, 291 S.W.3d 236 (Ky.2009), Mathews was again suspended for one-hundred and eighty-one days for violations of SCR-3.130-8.1(a) and SCR 3.130-8.1(b). In light of this history, the Board unanimously recommended that Mathews be permanently disbarred from the practice of law in Kentucky, make full restitution to his client, comply with all previous orders of this Court, and pay all costs associated with the disciplinary proceedings.

Neither party has filed notice, pursuant to SCR 3.370(8), for this Court to review the Board’s decision nor do we elect to review the decision of the Board pursuant to SCR 3.370(9). Therefore, we adopt the decision of the Board pursuant to SCR 3.370(10).

Accordingly, it is hereby ORDERED that:

1.Respondent, James Kevin Mathews, is found guilty of the ethical violations described above;
2. Mathews is permanently disbarred from the practice of law in Kentucky;
3. Mathews must immediately make full restitution to his client, Matthew Meyer, in the amount of $15,000;
4. Mathews must comply with all prior Orders of this Court;
5. In accordance with SCR 3.450, Mathews is directed to pay all costs associated with these disciplinary proceedings against him, said sum being $480.47, for which execution may issue from this Court upon finality of this Opinion and Order; and
6. Pursuant to SCR 3.390, Mathews shall, within ten (10) days from the entry of this Opinion and Order, notify all clients in writing of his inability to represent them, and notify all courts in which he has matters pending of his disbarment from the practice of law, and furnish copies of said letters of notice to the Director of the KBA. Furthermore, to the extent possible and necessary, Mathews shall immediately cancel and cease any advertising activities in which he is engaged.

All sitting. All concur.

ENTERED: April 22, 2010.

/s/ John D. Minton, Jr. Chief Justice

      . Therein, Mathews was ordered to refund $1,000.00 to each client, attend the Bar Counsel's remedial ethics program, and submit to counseling through the Kentucky Bar Association's Lawyer Assistance Program. He has not complied with the requirements of this order.

      . The Board also notes that Mathews has been suspended since January 31, 2008 for failure to pay bar dues,


author: /s/ John D. Minton Jr. Chief Justice

text:
    Bruce Dwain ATHERTON, Movant, v. KENTUCKY BAR ASSOCIATION, Respondent.
    No. 2010-SC-000057-KB.
    Supreme Court of Kentucky.
    April 22, 2010.
   OPINION AND ORDER

Movant, Bruce Dwain Atherton, moves this Court to enter an order permanently disbarring him from the practice of law in the Commonwealth of Kentucky. In response, the Kentucky Bar Association (KBA) agrees that Movant’s conduct warrants permanent disbarment. Movant, whose KBA member number is 0212, and whose bar roster address is 455 South Fourth Street, Suite 1450, Louisville, Kentucky 40202, was admitted to the practice of law in this Commonwealth on September 20, 1979. Movant was temporarily suspended from the practice of law in Kentucky, pursuant to SCR 3.166, effective September 3, 2009. Having considered Movant’s four KBA files and his six matters currently pending before the KBA, we conclude that he should be permanently disbarred.

Movant admits that he is guilty of violating the Rules of Professional Conduct as set out in the following KBA files: 11337; 12587, with the exception of Count III; 14408, with the exception of Counts II and III; and 17316. In addition, Movant requests that pending KBA Files 12372, 16870, 17143, 17753, 17898, and 18283 be closed in light of his admissions and request for permanent disbarment, to which Respondent offers no objections. Movant states that, upon entry of an order granting his motion to resign under terms of permanent disbarment, he will never again engage in the practice of law in the Commonwealth of Kentucky.

Movant and Respondent agree to the following facts and circumstances concerning KBA Files 11337, 12587, 14408 and 17316:

KBA File 11337

This charge arose out of Movant’s representation of Randall and Patsy Acton in a bankruptcy proceeding. In June 2001, Mr. and Mrs. Acton filed a voluntary Chapter 11 bankruptcy petition, retaining the services of Merritt Deitz and Sandra Freeburger. Due to a potential conflict of interest, Movant became employed as counsel for the Actons. On June 5, 2003, Movant filed what he termed a “final petition for payment of attorney fees.” Mov-ant utilized a form from a previous case which represented to the bankruptcy court that, “This fee application represents the fifth and final such petition for payment. Counsel for debtors have previously requested, and received Court approval of and payment of the following fees and expenses.” This petition for payment listed dates and amounts billed to the Actons between January 2002 and March 2003, with a total bill of $62,955.58. Movant claimed a balance of $8,862.24. Movant admits the statement that the fee application was the “fifth” such petition for payment was not true, and that the bankruptcy court had never approved payment of attorney’s fees.

Various creditors of the bankruptcy estate objected to the payment of the fees, and the court set the matter for a hearing on July 29, 2003. Movant failed to appear. Another hearing was set for August 26, 2003. This time, Movant appeared and acknowledged the billings and receipt of fees from the Actons. He also acknowledged that he had not obtained approval of his fees from the bankruptcy court, and that he had not circulated his invoices to the creditors. By order dated September 25, 2003, the bankruptcy court found that Movant failed to obtain prior approval to secure payment for services rendered from the debtor’s estate and ordered full disgorgement of Movant’s fees. This order was never set aside, vacated, or modified.

Movant is aware that the bankruptcy court’s order constitutes conclusive proof that he engaged in conduct described in the order and, thus, engaged in professional misconduct. See Kentucky Bar Association v. Harris, 269 S.W.3d 414 (Ky.2008); Kentucky Bar Association v. Horn, 4 S.W.3d 135 (Ky.1999). The Inquiry Commission filed a charge against Movant, alleging violations of SCR 3.130-1.3; 3.130-1.5; 3.1B0 — 3.3(a)(1); 3.130-3.4(c); and 3.130-5.3(b). Movant admits that his actions violated these rules.

KBA File 12587

On December 10, 2003, Movant was retained by Allen McCartney to represent him in defending an adversary proceeding filed in a bankruptcy court in the Western District of Kentucky. The proceedings had been filed by Dolphin Aviation, Inc. and sought to have Mr. McCartney’s debt to the company, the payment of which was the subject of a separate lawsuit filed in Florida, declared non-dischargeable. On December 12, 2003, McCartney hand-delivered the pleadings requiring immediate attention to the Movant. Dolphin Aviation, Inc. subsequently filed a Motion for Summary Judgment. Although Movant prepared a reply brief and signed a certificate of service, no reply brief was filed in the adversary proceeding. On March 8, 2004, an order was entered granting Dolphin Aviation, Inc.’s motion, declaring non-dis-chargeable Mr. McCartney’s debt in the amount of $43,876.25 in attorney’s fees and $4,356.31 in related expenses incurred in disproving an affidavit. On July 6, 2004, an order was entered in the Manatee County Circuit Court in Florida, noting that the debt had been declared non-dis-chargeable and requiring McCartney to pay $48,232.56, plus interest at the rate of nine percent annum, nunc pro tunc to May 12, 2003.

McCartney made various attempts to contact Movant on three separate days. Finally, Movant replied to McCartney on November 18, 2004, and requested, via letter, allowance to set the judgment aside “prior to turning this over to any malpractice insurance company.” Movant was unaware that he did not have malpractice insurance in effect from December 2003 through November 2004.

The Inquiry Commission filed a charge against Movant, alleging violations of SCR 3.130-1.3; 3.130 — 5.3(b); and 3.130-8.3(c). Movant admits that his actions violated these rules, with the exception of SCR 3.130-8.3(c).

KBA File 14408

This charge arose from Movant’s representation of Ann Marie Newbold in a medical malpractice action in Jefferson County, Kentucky. This matter was ultimately dismissed by summary judgment on December 6, 2005, as Movant admits he failed to take timely steps to secure an expert witness. Movant disputes that he failed to timely advise Ms. Newbold of his failure to obtain an expert witness and that he failed to timely advise her of the dismissal of her claim.

In the latter part of 2001, Movant again represented Ms. Newbold in a lender liability action. Movant disputes that, in approximately late February or early March 2006, he told Ms. Newbold he had filed suit on her behalf when, in fact, he had not.

The Inquiry Commission filed a charge against Movant, alleging violations of SCR 3.130-1.3; 3.130-1.4(a); and 3.130-8.3(c). Movant denies that his actions violated these rules, with the exception of SCR 3.130-1.3, to which he admits violating.

KBA File 17316

On September 2, 2009, Movant entered a guilty plea in the U.S. District Court, Eastern District of Pennsylvania, to the felony offense of accessory after the fact to conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. § 3. Movant acknowledges that his criminal conviction is conclusive proof that he engaged in criminal conduct and, thus, professional misconduct. See Kentucky Bar Association v. Carmichael, 244 S.W.3d 111 (Ky.2008); Kentucky Bar Association v. Rorrer, 222 S.W.3d 223 (Ky.2007); Marsh v. Kentucky Bar Association, 28 S.W.3d 859 (Ky.2000).

The Inquiry Commission filed a charge against Movant, alleging violations of SCR 3.130 — 8.3(b) and 3.130 — 8.3(c). Movant admits that his actions violated these rules.

CONCLUSION

This Court has granted a motion of permanent disbarment against other attorneys who have been convicted of a felony. Conway v. Kentucky Bar Association, 277 S.W.3d 608 (Ky.2009) (conspiracy to engage in monetary transactions in criminally derived property); Kentucky Bar Association v. Romr, supra (conspiracy to commit money laundering); Dickey v. Kentucky Bar Association, 98 S.W.3d 864 (Ky.2003) (conspiracy to commit securities fraud). Here, Movant has engaged in a lengthy pattern of misconduct, involving the violation of multiple Rules of Professional Conduct. Furthermore, Movant has clearly stated in his motion that he no longer wishes to practice law in this Commonwealth or in any other jurisdiction.

Accordingly, it is hereby ORDERED that:

1. Bruce Dwain Atherton, KBA Member No. 0212, is adjudged guilty of the charges made in the following KBA Files: 11337; 12587, with the exception of Count III; 14408, with the exception of Counts II and III; and 17316. All other pending files not disposed of by this order are hereby closed.

2. Bruce Dwain Atherton is permanently disbarred from the practice of law in the Commonwealth of Kentucky.

3. Pursuant to SCR 3.450, Bruce Dwain Atherton is directed to pay all costs associated with these disciplinary proceedings in the amount of $1,275.10.

4. Pursuant to SCR 3.890, Bruce Dwain Atherton shall, within ten (10) days from the entry of this Opinion and Order, notify all clients, in writing, of his inability to represent them; notify, in writing, all courts in which he has matters pending of his disbarment from the practice of law; and furnish copies of all letters of notice to the Executive Director of the Kentucky Bar Association. Furthermore, to the extent possible, Atherton shall immediately cancel and cease any advertising activities in which he is engaged.

All sitting. All concur.

ENTERED: April 22, 2010.

/s/ John D. Minton Jr. Chief Justice