author: KEM THOMPSON FROST, Justice.

text:
    Svetlana B. POPLIN, Appellant, v. AMERISURE MUTUAL INSURANCE COMPANY, Appellee.
    No. 14-09-00222-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 31, 2010.
    Rehearing Overruled Oct. 21, 2010.

      Dan Hennigan, Houston, for appellant.
    Scot A. Schwartzberg, Joy Marie Brennan, Houston, for appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

KEM THOMPSON FROST, Justice.

In this case, we determine whether the Texas Labor Code’s requirement that a party seeking judicial review of a final decision of the Texas Workers’ Compensation Commission must “serve any opposing party to the suit” compels service by citation. A widow appeals a take-nothing judgment in favor of an insurance carrier in her suit for judicial review of the denial of workers’ compensation benefits in connection with her husband’s death. The trial court granted summary judgment on the basis that the widow was time-barred from seeking judicial review because she failed to follow the procedures of the Texas Labor Code in serving the insurance carrier — procedures the trial court implicitly found required service by citation. Concluding the statute does not require service by citation, we reverse and remand.

BACKGROUND

Appellant Svetlana B. Poplin, the plaintiff below, filed a petition with the trial court for judicial review of an order by an appeals panel of the Texas Workers’ Compensation Commission denying Poplin benefits in connection with her husband’s death. Appellee Amerisure Mutual Insurance Company, the defendant below, entered a general denial and asserted that Poplin’s claims were time-barred.

Amerisure filed a traditional motion for summary judgment. According to the motion and the attached evidence, a case hearing officer from the Texas Workers’ Compensation Commission rendered a decision that Amerisure was not liable to Poplin for compensation benefits because Poplin’s husband’s death was caused by a non-compensable injury, a heart attack. An appeals panel with the Texas Workers’ Compensation Commission issued a final order affirming the hearing officer’s decision.

In its summary-judgment motion, Amer-isure claimed that under the Labor Code, a party seeking judicial review of the appeals panel’s decision must not only timely file a petition with the trial court but also must effect service of citation upon the opposing party within forty days of the appeals panel’s decision. See Tex. Lab. Code ANN. §§ 410.252-258 (Vernon 2006). Amerisure argued that although Poplin timely filed suit for judicial review in the county court at law and simultaneously sent a copy of the suit to opposing counsel, Poplin did not effect service by citation upon Amerisure. Amerisure attached evidence reflecting an address for its registered agent for service of process and an affidavit from the agent, stating that she never received any citation, process, or a waiver of citation for Poplin’s petition for judicial review. Amerisure claimed that without service of citation, Poplin’s petition for judicial review was not timely and the Texas Workers’ Compensation Commission’s decision thus became final as a matter of law.

In response, Poplin argued she was not required to effect service of citation and that she only needed to serve Amerisure with a copy of her petition. Poplin attached an affidavit and letter from Poplin’s attorney as well as a certified mail return receipt signature card (commonly known as a “green card”) as evidence of service on Amerisure’s attorney of record, to whom Poplin had mailed a copy of the petition for judicial review. The letter to Amerisure’s attorney sent by certified mail and the corresponding green card show the petition was mailed on the same date the petition was filed in the county court at law.

Poplin also claimed that because Ameri-sure had filed an original answer to her petition, under the Texas Rules of Civil Procedure there was no requirement that citation be served, and Amerisure therefore had waived any challenge to the purported lack of proper service.

The trial court granted summary judgment in favor of Amerisure. Under a single appellate issue, Poplin argues her suit for judicial review was not statutorily barred based on the failure to serve Amer-isure with citation and that the trial court erred in granting summary judgment in favor of Amerisure on this basis.

Standard of Review

In a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 28 (Tex.2000). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007).

Analysis

Chapter 410, subchapter F of the Texas Labor Code, entitled “Judicial Review,” governs judicial review of workers’ compensation claims. See Tex. Lab.Code Ann. §§ 410.251-.258 (Vernon 2006); Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999) (per curiam). After exhaustion of administrative remedies, a party may seek judicial review of a final decision of an appeals panel of the Texas Workers’ Compensation Commission. Tex. Lab.Code Ann. § 410.251; see Albertson’s, Inc., 984 S.W.2d at 960. The parties do not dispute that Poplin timely filed her petition in the county court at law. See Tex. Lab.Code Ann. § 410.252 (setting forth time period for filing petition). They dispute whether Amerisure was properly served in accordance with section 410.253. The trial court’s summary judgment was implicitly based on a conclusion that Poplin failed to properly serve Amerisure under section 410.253 and that this failure bars Poplin’s suit for judicial review. We presume for the sake of argument that if Amerisure was not properly served, Poplin’s suit would be barred. Thus, the issue before us is whether Amerisure was served in accordance with section 410.253.

Section 410.253, entitled “Service; Notice,” states in its entirety:

(a) A party seeking judicial review shall simultaneously:
(1) file a copy of the party’s petition with the court;
(2) serve any opposing party to the suit; and
(3) provide written notice of the suit or notice of appeal to the division.
(b) A party may not seek judicial review under section 410.251 unless the party has provided written notice of the suit to the division as required by this section.

Tex. Lab.Code Ann. § 410.253. Poplin asserts that service of a copy of the petition by certified mail on any opposing party to the suit is sufficient to satisfy section 410.253(a)(2). Poplin presented summary-judgment evidence proving that she served a copy of her petition on Amerisure’s attorney of record by certified mail on the same day she filed her petition in the trial court.

Amerisure’s entire argument is premised on the notion that the statute requires service of citation upon any opposing party and that service of only the petition by certified mail fails to comply with the statute’s requirements. Amerisure argues that Poplin’s failure to take any steps to have Amerisure served with citation bars her suit. Thus, we consider whether the requirement in section 410.253(a)(2) that a party seeking judicial review “serve any opposing party” means that the party must have the opposing parties served with citation.

We review the trial court’s interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex.1989). In construing a statute, our objective is to determine and give effect to the Legislature’s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). We must not engage in forced or strained construction; instead, we must yield to the plain sense of the words the Legislature chose. See id.

First we note that, as to workers’ compensation proceedings initiated before September 1, 2003, section 410.253 read as follows:

A copy of the petition shall be simultaneously filed with the court and the commission and served on any opposing party-

Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1209 (amended 2003, 2005) (hereinafter “pre-2003 version of section 410.253”). The Texas Administrative Procedure Act provides that a person seeking judicial review of the decision of a state agency must file a petition and, unless otherwise provided by statute, “a copy of the petition must be served on the state agency and each party of record in the proceedings before the state agency.” Tex. Gov’t Code Ann. § 2001.176(a), (b) (Vernon 2008). The Supreme Court of Texas has held that, under section 2001.176 of the Government Code, the person seeking review need only serve copies of the petition and that service of citation is not required. See Tex. Natural Res. Conservation Comm’n v. Sierra Club, 70 S.W.3d 809, 814 (Tex.2002). The pre-2003 version of section 410.253 was substantially similar to section 2001.176(b)(2), requiring that a “copy of the petition shall be ... served on any opposing party.” Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws at 1209. Therefore, the Sierra Club precedent supports a conclusion that the pre-2003 version of section 410.253 did not require service of citation. See Sierra Club, 70 S.W.3d at 814.

The case that we decide today is governed by the current version of section 410.253. We have found no cases addressing whether this statute requires service of citation on opposing parties. Unlike the pre-2003 version of section 410.253 and section 2001.176 of the Government Code, the current version of section 410.253 does not specify that a copy of the petition must be served. See Tex. Lab.Code Ann. § 410.253. Nor does the current version of section 410.253 state that citation must be served. See id. The statute is silent as to what is to be served on opposing parties. See id.

Significantly, a party to a lawsuit may not himself serve citation in that suit. See Tex.R. Civ. P. 103 (stating who may serve process, including citation, and stating that “no person who is a party to or interested in the outcome of a suit may serve any process in that suit”); Kennedy v. Gutierrez, No. 09-09-00373-CV, 2010 WL 1930939, at *3 (Tex.App.-Beaumont May 13, 2010, no pet.) (mem. op.) (holding that plaintiff could not serve citation on defendants). Thus, statutes that explicitly require service of citation in judicial review suits do not state that the party seeking review must serve the citation. See Tex. EduC.Code Ann. § 7.057(d) (Vernon 2006) (requiring service with citation for appeal of an agency decision); id. § 1001.461 (Vernon 2009) (requiring service with citation for judicial review of disciplinary action); Tex. Fam.Code Ann. § 160.422(d) (Vernon 2008) (pertaining to certificate of search of registry and requiring service with citation); Tex. Health & Safety Code Ann. § 361.321(e) (Vernon 2010) (involving petition for judicial review under Solid Waste Disposal Act and requiring service of citation); Tex. Water Code Ann. § 5.357 (Vernon 2008) (requiring service with citation in suits against agency). However, under section 410.253, the party seeking judicial review must “serve any opposing party to the suit.” Tex. Lab.Code Ann. § 410.253.

Under the Texas Administrative Procedure Act’s default rule for a party seeking judicial review, the party must serve a copy of his petition on opposing parties, with no requirement that the opposing parties be served with process. See Tex. Gov’t Code Ann. § 2001.176(a), (b). The Texas Legislature is free to require service of citation on opposing parties under a particular judicial-review procedure, and in some instances, the Texas Legislature has done so. See Tex. Educ.Code Ann. §§ 7.057(d), § 1001.461; Tex. Fam.Code Ann. § 160.422(d); Tex. Health & Safety Code Ann. § 361.321(c); Tex. Water Code Ann. § 5.357. Under section 410.253, the Texas Legislature did not state that citation must be served on the opposing parties, and the parties whom the Texas Legislature requires to “serve” opposing parties are parties who cannot serve citation. See Tex.R. Civ. P. 103; Kennedy, 2010 WL 1930939, at *3. We conclude that, under the plain meaning of section 410.253, Poplin was not required to serve Amerisure with citation or to have Ameri-sure served with citation.

Conclusion

Poplin’s summary-judgment evidence shows that Poplin served Amerisure with a copy of her petition by certified mail on the same day that she filed her petition. This service is all that section 410.253(a)(2) requires. Service of citation upon Ameri-sure was not required, and Poplin’s failure to have citation served on Amerisure does not make her petition for judicial review untimely. Therefore, Amerisure did not prove as a matter of law that Poplin failed to properly serve Amerisure under section 410.253, and the trial court erred in granting summary judgment. Accordingly, we sustain Poplin’s sole issue, reverse the trial court’s judgment, and remand this cause to the trial court for further proceedings consistent with this opinion.

      . Unless otherwise specified, all references to "chapter” or "section” pertain to the Texas Labor Code.


source: Caselaw Access Project

author: ANNABELLE CLINTON IMBER, Justice.

license: Public Domain

text:
    2009 Ark. 333
    FORT SMITH SCHOOL DISTRICT; Greenwood School District; Lavaca School District; Alma School District; Ozark School District; Mansfield School District; Van Buren School District; County Line School District; Charleston School District; Paris School District; Cedarville School District; Mulberry School District; Mountainburg School District; Bonneville School District; and James O. Cox, Esq., Appellants, v. Mike BEEBE, Governor, State of Arkansas; the Arkansas State Board of Education, Randy Lawson, Chair; Sherry Burrow; Diane Tatum; Dr. Naccaman Williams; Jim Cooper; Brenda Gullett; Samuel Ledbetter; Alice Williams Mahoney; and Dr. Ben Mays, All in their Official Capacities as Members of the State Board of Education, Appellees.
    No. 08-618.
    Supreme Court of Arkansas.
    June 4, 2009.

      Thompson and Llewellyn, P.A., by: James M. Llewellyn, Jr., and William P. Thompson, Fort Smith, for appellants.
    Dustin McDaniel, Att’y Gen., by: Scott P. Richardson, Ass’t Att’y Gen., for appel-lee.
   ANNABELLE CLINTON IMBER, Justice.

12Appellants consist of various school districts in Arkansas and James O. Cox, a taxpayer and resident of the Greenwood School District (together “Appellants”). Appellants originally filed a complaint against Mike Huckabee, in his capacity as Governor of Arkansas, and other state officials (together “Appellees”), on May 30, 2003. The original complaint alleged that Appellees were illegally diverting equalization funds (now called “foundation funds”) to satisfy court-ordered desegregation costs in Pulaski County and to provide additional base funding for school districts that did not meet other funding standards. On September 4, 2003, Appellants filed their first amended complaint and raised the additional claim that Appellees were “divert[ing] funds from the Uniform Rate of Tax under Amendment 74 ... contrary to law.” The first amended complaint also alleged that Appellees were diverting funds from the Educational Excellence Trust Fund “contrary to law.”

Eventually, on May 24, 2005, Appellants filed another Complaint and Motion for Injunctive Relief, in which they asserted that “[t]his is an action for, among other things, lüillegal exaction and injunctive relief.” The 2005 complaint alleges that Ap-pellees were constructively retaining and unlawfully diverting funds derived from Amendment 74 property taxes and funds allocated to the Educational Excellence Trust Fund. Shortly thereafter, Appellees filed a motion to dismiss Appellants’ complaint. The motion listed six grounds for dismissal: (1) Appellants lack standing to bring this action; (2) Appellants’ complaint failed to state a claim on which relief could be granted; (3) the claims are barred by res judicata; (4) some of Appellants’ claims are not ripe for adjudication; (5) Appellants’ complaint failed to name necessary and indispensable parties; and (6) the State is immune from suit in state court for money damages. The circuit judge denied Appellees’ motion to dismiss on October 26, 2006.

On August 8, 2007, Appellants moved for summary judgment. Appellees responded by filing their own motion for summary judgment on August 28, 2007, in which they listed the following grounds: (1) Appellants’ claim for money damages are barred by Article 5, Section 2 of the Arkansas Constitution; (2) Appellants’ claims are barred by res judicata; (3) Appellants’ “funds type” illegal-exaction claim entitles them to prospective injunctive relief only; (4) Appellants’ claims relating to acts prior to 2002 are barred by the applicable statute of limitations; (5) Appellant school districts are neither taxpayers nor citizens and lack standing to sue for illegal-exaction; (6) Appellant James O. Cox’s claims for refund of taxes spent prior to 2005 are barred by the voluntary payment rule; (7) Appellants’ claims for injunctive relief are barred by separation of powers; (8) Appellants fail to state a claim |4upon which relief can be granted; and (9) Appellants’ claims for injunctive relief are moot. On March 28, 2008, the circuit court denied Appellants’ motion for summary judgment and granted summary judgment in favor of Appellees. It is from this order that Appellants appeal. We have jurisdiction over the instant case pursuant to Ark. Sup.Ct. R. 1 — 2(a)(1) and (b)(1), (3), (4) and (5) (2009).

I. Standard of Review

In reviewing summary judgment cases, this court need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving party left a material question of fact unanswered. Parker v. Perry, 355 Ark. 97, 131 S.W.3d 338 (2003). The moving party always bears the burden of sustaining a motion for summary judgment. Id. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. Id. The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id.

Once the moving party makes a prima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof showing a material issue of fact. Parker v. Perry, supra. However, if a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Id.

|JI. Whether Appellees Constructively Retained, or Misapplied, the Uniform Rate of Tax Funds

Appellants argue that amendment 74 provides funding for education in addition to state funding. They assert that the General Assembly, by subsequent legislative enactments, has used the growth in funding from ad valorem tax collections under the amendment to make a corresponding reduction in state foundation-funding aid. Appellants further suggest that, while the revenue generated from each county’s ad valorem tax collection grows with changing property assessments, the State should still be required to contribute the same amount of foundation funding per student, even if that results in a total per pupil amount over that set by the General Assembly pursuant to Ark. Code Ann. § 6-20-2305 (Repl.2007).

Appellees counter Appellants’ claims by asserting that amendment 74 does not place any limits on the General Assembly as to how it appropriates the money in excess of that generated by amendment 74. While Appellees acknowledge that the General Assembly must provide a substantially equal opportunity for an adequate education to the students of this State, they also point out that the Uniform Rate of Tax (“URT”) alone generates nowhere near enough funding to meet the adequacy amounts set out in Ark. Code Ann. § 6-20-2305.

In effect, Appellants claim that there has been an illegal exaction because the State has retained and misapplied funds that were meant solely for the purpose of education. Article 16, section 13 of the Arkansas Constitution permits a citizen of this state to pursue Ran illegal-exaction claim. This court has stated that

White v. Ark. Capital Corp./Diamond State Ventures, 365 Ark. 200, 206, 226 S.W.3d 825, 830 (2006) (internal citations omitted). This is a public funds case, and to prevail on their claim, Appellants must show that the State misapplied or illegally spent money that was lawfully collected pursuant to ad valorem property taxes.

In November 1996, the state’s voters adopted amendment 74 to the Arkansas Constitution, amending article 14, section 3. Article 14, section 3 now reads in relevant part as follows:

(a) The General Assembly shall provide for the support of common schools by general law. In order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a, system, some funding variations may be necessary. The primary reason for allowing such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district. It is farther recognized that funding variations or restrictions thereon may be necessary in order to comply with, or due to, other provisions of this Constitution, the United States Constitution, state or federal laws, or court orders.
(b)(1) There is established a uniform rate of ad valorem property tax of twenty-five (25) mills to be levied on the assessed value of all taxable real, personal, and utility property in the state to be used solely for maintenance and operation of 17the schools.
(2) Except as ‘provided in this subsection the uniform rate of tax shall not be an additional levy for maintenance and operation of the schools but shall replace a portion of the existing rate of tax levied by each school district available for maintenance and operation of schools in the school district. The rate of tax available for maintenance and operation levied by each school district on the effective date of this amendment shall be reduced to reflect the levy of the uniform rate of tax. If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment exceeds the uniform rate of tax, the excess rate of tax shall continue to be levied by the school district until changed as provided in subsection (c)(1). If the rate of tax available for maintenance and operation levied by a school district on the effective date of this amendment is less than the uniform rate of tax, the uniform rate of tax shall nevertheless be levied in the district.
(3) The uniform rate of tax shall be assessed and collected in the same manner as other school property taxes, but the net revenues from the uniform rate of tax shall be remitted to the State Treasurer and distributed by the state to the school districts as provided by law. No portion of the revenues from the uniform rate of tax shall be retained by the state. The revenues so distributed shall be used by the school districts solely for maintenance and operation of schools.
(4)The General Assembly may by law propose an increase or decrease in the uniform rate of tax and submit the question to the electors of the state at the next general election. If a majority of the electors of the state voting on the issue vote For the proposed increase or decrease in the uniform rate of tax, the uniform rate of tax shall be increased or decreased as approved. If a majority of the electors of the state voting on the issue vote Against the proposed increase or decrease in the uniform rate of tax, the uniform rate of tax shall continue to be levied at the rate for the year in which the election is held.
(c)(1) In addition to the uniform rate of tax provided in subsection (b), school districts are authorized to levy, by a vote |8of the qualified electors respectively thereof, an annual ad valorem property tax on the assessed value of taxable real, personal, and utility property for the maintenance and operation of schools and the retirement of indebtedness. The Board of Directors of each school district shall prepare, approve and make public not less than sixty (60) days in advance of the annual school election a proposed budget of expenditures deemed necessary to provide for the foregoing purposes, together with a rate of tax levy sufficient to provide the funds therefor, including the rate under any continuing levy for the retirement of indebtedness. The Board of Directors shall submit the tax at the annual school election or at such other time as may be provided by law. If a majority of the qualified voters in the school district voting in the school election approve the rate of tax proposed by the Board of Directors, then the tax at the rate approved shall be collected as provided by law. In the event a majority of the qualified electors voting in the school election disapprove the proposed rate of tax, then the tax shall be collected at the rate approved in the last preceding school election. However, if the rate last approved has been modified pursuant to subsection (b) or (c)(2) of this section, then the tax shall be collected at the modified rate until another rate is approved.

Ark. Const, art. 14, § 3 (Repl.2004) (emphasis added). We construe constitutional amendments liberally to accomplish their purposes. U.S. Term Limits, Inc. v. Hill, 316 Ark. 251, 872 S.W.2d 349 (1994). It is the duty of the court to construe the constitution as written. Cannon v. May, 183 Ark. 107, 35 S.W.2d 70 (1931). We construe a constitutional provision in such a way that an express purpose or implied result will be given effect. Rockefeller v. Hogue, 244 Ark. 1029, 429 S.W.2d 85 (1968). It is also the duty of this court to construe constitutional sections so that the instrument as a whole is harmonious if it is possible to do so. Huggins v. Wacaster, 223 Ark. 390, 266 S.W.2d 58 (1954); Chesshir v. Copeland, 182 Ark. 425, 32 S.W.2d 301 (1930).

This court has analyzed the purpose and effect of amendment 74 many times and has stated,

Amendment 74 established the uniform rate of taxation of twenty-five mills for each school district to be levied on the assessed value of property and to be used solely for the maintenance and operation of the schools. The revenues collected are sent to the State, and the State later distributes the total funds back to the school districts.

See, e.g., Lake View Sch. Dist. No. 25 v. Huckabee, 364 Ark. 398, 402, 220 S.W.3d 645, 648 (2005) (Lake View 2005). The funds generated from the URT, however, only partially fund the basic foundation funding in any given year. Id. at 401, 220 S.W.3d at 647.

According to the Continuing Adequacy Evaluation Act of 2004, also known as Act 57, the General Assembly is required, in each interim, to conduct an assessment of the “entire spectrum of public education across the State of Arkansas to determine whether equal educational opportunity for an adequate education is being substantially afforded to the school children of the State of Arkansas.” ArkCode Ann. § 10-3 — 2102(a)(1) (Supp.2007). Senate and House committees are charged with conducting the assessment and must report their findings and recommendations to the President Pro Tempore of the Senate and the Speaker of the House of Representatives no later than September 1 of each year prior to the convening of a regular session. Ark.Code Ann. § 10-3-2104(a) (Supp.2007). Each report must include, among other things, a recommendation regarding resources needed. Id. |in§ 10-3-2104(b).

The amount of foundation-funding aid each school district receives in a given year is computed as “the difference between the foundation funding amount pursuant to subdivision (a)(2) of this section and the sum of ninety-eight percent (98%) of the uniform rate of tax multiplied by the property assessment of the school district plus the miscellaneous funds of the school district.” Ark.Code Ann. § 6-20-2305(a)(1)(A) (Repl.2007). Pursuant to subdivision (a)(2), the foundation funding amount for the 2007-2008 school year was set at $5,719 per student multiplied by the school district’s average daily membership for the previous school year and $5,789 per student for the 2008-2009 school year. Id. § 6-20-2305(a)(2)(A), (B). Thus, given the provisions of amendment 74 and the statutes enacted by the General Assembly, each school district in Arkansas, for the 2007-2008 school year, would receive foundation-funding aid according to the formula in section 6-20-2305(a)(l)(A). For example, in 2007-008, the State made up the difference between $5,719 per student and the revenue generated by the 25 mills URT in any given school district.

Appellants, nonetheless, argue that, even if the funding generated by the 25 mills URT grows as the value of the property increases, the State cannot reduce its funding accordingly. We disagree. Amendment 74 does not place any limits on the General Assembly as to how it appropriates the money in excess of that generated by amendment 74 | ^following the legislature’s assessment of the resources needed to provide a substantially equal opportunity for an adequate education to the students of this State.

Amendment 74 provides that

[i]n order to provide quality education, it is the goal of this state to provide a fair system for the distribution of funds. It is recognized that, in providing such a system, some funding variations may be necessary. The primary reason for such variations is to allow school districts, to the extent permissible, to raise additional funds to enhance the educational system within the school district.

Art. 14, § 3(a) (Repl.2004). Appellants suggest that the reference to “additional funds” means the funds raised by the base millage rate of 25 mills (including any growth in collections). According to Appellants’ rationale, this reference to the URT as “additional funds” implies that there should be no reduction in funds provided by other means. Such an interpretation, however, fails to take into account section 3(c)(1), which provides that, “[i]n addition to the uniform rate of tax provided in subsection (b) [25 mills], school districts are authorized to levy, by a vote of the qualified electors respectively thereof, an annual ad valorem property tax on the assessed value of taxable real, personal, and utility property for the maintenance and operation of schools and the retirement of indebtedness.” Art. 14, § 3(c)(1) (emphasis added). Thus, according to its plain language, amendment 74 “allows for variances in school district revenues above the base millage rate of 25 mills, which may lead to enhanced curricula, facilities, and equipment which are superior to what is deemed adequate by the State.” Lake View Sch. Dist. No. 25 v. Huckabee, 358 Ark. 137, 189 S.W.3d 1 (2004) (Lake View 2004); Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 43, 91 S.W.3d 472, 478 (2002)(Lake View 2002).

Appellants claim that, by reducing the funds from the State when there is growth in the revenue generated from the URT, the State is constructively retaining the URT funds. Once again, we must disagree. First, there is no dispute that the State distributes all URT funds collected back to the school districts. Lake View 2005, 364 Ark. at 402, 220 S.W.3d 645, 648. As noted by Appellees, the result urged by Appellants “would directly tie the adequacy amount to property wealth in the State.” This court has decreed that the State of Arkansas must provide the children of this State with an adequate and substantially equal education. Lake View Sch. Dist. No. 25 v. Huckabee, 362 Ark. 520, 210 S.W.3d 28 (2005). We have expressly stated that, while amendment 74 does authorize funding variances, it “does not authorize a system of school funding that fails to close the gap between wealthy school districts with premier educational programs and poor school districts on the lower end of the economic spectrum, which are mired in poverty and unable to provide a system of education much above the most elementary kind.” Lake View 2002, 351 Ark. at 77, 91 S.W.3d at 499. The school-funding system, fashioned by the General Assembly in response to this court’s decisions in the Lake View litigation, set a base level of funding per student required to provide a constitutionally adequate and substantially equal education. Ark.Code Ann. § 6-20-2305. To reach that amount of per-student funding, the URT revenues are calculated, and the State then makes up the difference with foundation-funding aid. In 113sum, the twenty-five mills URT and the net revenues it generates are used to determine the amount of state foundation aid, as opposed to Appellants’ premise that amendment 74 revenues merely supplement state funding. Lake View 2005, 364 Ark. at 402, 220 S.W.3d at 648.

In addition to the foundation funding set forth in section 6-20-2305(a)(2)(A) and (B), the General Assembly appropriated an additional $51.00 per student for the 2007-2008 school year and $36.00 for the 2008-2009 school year. Ark.Code Ann. § 6-20-2305(a)(2)(C)(i). The statute states that these funds, to be known as “Enhanced Educational Funding,” are “in addition to the amount of funds necessary to provide an adequate education as required by the Arkansas Constitution.” Ark.Code Ann. § 6 — 20—2305(a)(2)(C)(ii)(6). The statute further states that the funds were “available from a combination of fortunate economic factors, conservative budgeting of all state government, and the favorable forecast of state revenues,” but could not “be ensured and relied on beyond the 2007-2009 biennium.” Id.

Appellants posit that this additional $87.00 per student over two years is the amount of amendment 74 growth over the same period. Accordingly, Appellants contend that this is evidence of the General Assembly’s recognition that it must apply all of the growth in amendment 74 funds toward foundation funding. Such an argument is contrary to the statute’s plain language. In fact, it is nothing more than a challenge to the adequacy of the 114State’s funding for education. We therefore conclude that Appellants’ allegations concerning the application of amendment 74 funds do not support a claim for illegal exaction.

III. Whether the State Constructively Retained and Misapplied Educational Excellence Trust Funds

Appellants make a similar argument with respect to the Educational Excellence Trust Fund (“EETF”). Under section 6-5-308, the funds from general revenues allocated and accruing to the EETF were to supplement, not supplant, funding for public education in this case. Appellants assert that the State constructively retained funds from the EETF because, as the EETF grows, the funding to public schools either remains static, actually declines, or does not keep pace with the growth in EETF.

Appellees respond that EETF is a revenue source to fund the Public School Fund, and it does not replace the Public School Fund, but provides an additional source of revenue for that fund. The State alleges that there is no restriction on the General Assembly’s ability to allocate this revenue source that it has created, and Appellants cannot have this court take over that role of the General Assembly and direct how state revenue is to be allocated.

The EETF was established in 1991 by Act 10, as amended, and is currently codified | isat Ark.Code Ann. §§ 6-5-301 et seq. (Repl.2007). Arkansas Code Annotated § 6-5-302 provides that a portion of specified general revenues is to be used to contribute to certain education accounts. Ark.Code Ann. § 6-5-302 (Repl.2007). Section 6-5-308 is entitled “Legislative intent — Supplemental funding for public education” and states,

It is the intent of this subchapter to supplement, not to supplant, funding for public education in this state. Nothing herein shall be construed to reduce that portion of general revenue or growth revenues which would otherwise accrue to the Public School Fund. The moneys provided by this subchapter are intended to be in addition to those anticipated to be provided to fund public education for the children of this state at the same historical proportionate levels.

Ark.Code Ann. § 6-5-308 (Repl.2007).

Appellants contend that public school funding has been reduced after the establishment of the EETF and the State is using EETF proceeds “to meet the funding levels for an ‘adequate’ education to supplant state funds, but not to supplement that level.” Appellants assert that, while state revenues increased from 1991 to 2006, the Public School Fund represented 49.79% of total state revenues in 1991; whereas, in 2006, the Public School Fund, excluding EETF proceeds, represented 44.05% of total state revenue. Appellees respond that the General Assembly appropriates state funds to the Public School | mFund based not on available revenue, but on educational need as determined by the biennial studies performed pursuant to Act 57, codified at Ark.Code Ann. §§ 10-3-2101 to -2104. We agree. This court has expressly rejected a school-funding system that looks primarily to the resources available instead of need. See Lake View 2002, 351 Ark. 31, 91 S.W.3d 472; Ark.Code Ann. § 6-20-2305.

Appellants have not shown how the State is using EETF funds to supplant its foundation-funding aid contribution to reach the amount per student established pursuant to section 6-20-2305. Thus, Appellants’ illegal-exaction claim based upon the misapplication of EETF proceeds is without merit.

We agree with the circuit court that the Appellees are entitled to judgment as a matter of law. Because we affirm the circuit court’s grant of summary judgment in favor of Appellees, we need not consider the affirmative defenses raised by Appel-lees.

Affirmed.

Special Justice GARY B. ROGERS, joins.

WILLS, J., not participating.

      . School districts included are: Fort Smith School District, Greenwood School District, Lavaca School District, Alma School District, Ozark School District, Mansfield School District, Van Burén School District, County Line School District, Charleston School District, Paris School District, Cedarville School District, Mulberry School District, Mountainburg School District, Bryant School District, Jes-sieville School District, and Booneville School District.

      . State officials included in the original complaint were: Mike Huckabee, Governor, State of Arkansas; The Arkansas State Board of Education, Jonell Caldwell, Chair; Shelby Hillman; Mary Jane Rebick; Dr. Calvin King; Dr. Jeanna Westmoreland; Sherry Burrow; Randy Lawson; Diane Tatum; and Dr. Nac-caman Williams, all in their official capacities as members of the State Board of Education.

      . The EETF contributes to twenty-eight separate trust funds or accounts, two of which are part of the Public School Fund Account. The Public School Fund Account itself included sixty-five line-item appropriations for various educational programs, many of which were completely separate from the foundation funding aid set forth in section 6-20-305.


author: PER CURIAM.

text:
    2009 Ark. 343
    R.J. CHIODINI, Appellant, v. David LOCK, Appellee.
    No. CA 09-297.
    Supreme Court of Arkansas.
    June 4, 2009.

      R.J. Chiodini, pro se.
    David Lock, pro se.
   PER CURIAM.

| Appellant R.J. Chiodini appeals from the Stone County Circuit Court’s entry of a decree quieting title to certain real property in accordance with a survey conducted by Mr. Eugene Gorton. Appellant raises four points on appeal: (1) the circuit court erred (a) in failing to deem admitted Appellant’s requests for admission; (b) in finding Appellee’s responses to interrogatories complete; and (c) in sanctioning Appellant by prohibiting further discovery; (2) the circuit court erred in denying Appellant’s motion for summary judgment; (3) the decree quieting title entered by the circuit court following a bench trial on September 29, 2008, was not supported by substantial evidence; and (4) the circuit court erred in failing to sanction Appellee for violation of the Arkansas Rules of Civil Procedure governing discovery. However, Appellant did not abstract the complete trial transcript and L.only a partial transcript of the trial appears in the record. The notice of appeal reflects that Appellant designated “relevant portions of Court Transcript.” Additionally, in the abstract, Appellant indicates that he did not abstract the trial testimony of several witnesses because their testimony was not considered to be “essential or relevant ... to the issues in this case.”

Under Arkansas Supreme Court Rule 4-2(a)(5), the abstract should consist of the following:

The appellant’s abstract or abridgment of the transcript should consist of an impartial condensation, without comment or emphasis, of only such material parts of the testimony of the witnesses and colloquies between the court and counsel and other parties as are necessary to an understanding of all questions presented to the Court for decision. Depositions shall be abstracted in a similar fashion.

Ark. Sup.Ct. R. 4-2(a)(5) (2009). In the instant case, Appellant challenges the sufficiency of the evidence supporting the decree. Yet, he fails to include a complete trial transcript in the record, and he fails to provide a proper abstract of the transcript that includes all material parts of the testimony as are necessary to an understanding of all questions presented to our court for decision.

Under Arkansas Supreme Court Rule 4 — -2(a)(8), the addendum should include all|sdocuments essential to an understanding of the case:

Following the signature and certificate of service, the appellant’s brief shall contain an Addendum which shall include true and legible photocopies of the order, judgment, decree, ruling, letter opinion, or Workers’ Compensation Commission opinion from which the appeal is taken, along with any other relevant pleadings, documents, or exhibits essential to an understanding of the case and the Court’s jurisdiction on appeal .... Depending upon the issues on appeal, the Addendum may include such materials as the following: a contract, will, lease, or any other document; proffers of evidence; jury instructions or proffered jury instructions; the court’s findings and conclusions of law; orders; administrative law judge’s opinion; discovery documents; requests for admissions; and relevant pleadings or documents essential to an understanding of the Court’s jurisdiction on appeal such as the notice of appeal.

Ark. Sup.Ct. Rule 4-2(a)(8) (2009). In this case, neither the addendum nor the record includes documentary proof of the date when Appellant’s complaint and first request for admissions were served on Ap-pellee. Such proof of service is essential to an understanding of Appellant’s first point on appeal.

Here, the notice of appeal did not make a request for the entire record of the proceedings below. As we stated in Gilbert v. Moore, 362 Ark. 657, 210 S.W.3d 125 (2005), pursuant to Ark. R.App. P.-Civ. 6(c), where the parties in good faith abbreviated the record by agreement or without objection from opposing parties, this court “shall not affirm or dismiss the appeal on account of any deficiency in the record without notice to the appellant and reasonable opportunity to supply the deficiency.” Ark. R.App. P.-Civ. 6(c) (2009). Further, pursuant to Rule 6(e), this court can sua sponte direct the parties to supply any omitted material by filing a certified, supplemental record. Ark. R.App. P.-Civ. 6(e); Gilbert v. Moore, supra.

We recognize that the record presently before us is abbreviated due to the materials requested by Appellant in his notice of appeal and designation of the record. See, e.g., Selmon v. Metropolitan Life Ins. Co., 371 Ark. 306, 264 S.W.3d 547 (2007). Ap-pellee failed to object to the abbreviated record and did not file a designation of any additional materials he believed should have been included in the record. Thus, Appellee tacitly consented to the record. See id. (citing Gilbert v. Moore, supra).

Pursuant to Ark. R.App. P.-Civ. 6(c) and (e), we order Appellant to supply this court with a certified, supplemental record that includes a complete trial transcript and the proof of service referenced above (if part of the proceedings below), within sixty (60) days of the issuance of this opinion. Appellant is further ordered to file a substituted brief that includes an abstract of the complete trial transcript and an addendum as required by Ark. Sup.Ct. R. 4-2(a)(5) and (a)(8) (2009).

While examples of deficiencies in the abstract, addendum, and record are noted above, we encourage Appellant, prior to filing the substituted brief, to review our rules and his substituted brief to ensure that no additional deficiencies are present.

Rebriefing and supplemental record ordered.

      . In the abstracting of testimony, "the first person (i.e., "I”) rather than the third person (i.e., "he, she”) shall be used,” and the "abstract or abridgement of the transcript should consist of an impartial condensation ... of the testimony of the witnesses and colloquies between the court and counsel and other parties. ...” Ark. Sup.Ct. R. 4-2(a)(5) (emphasis added). Thus, the abstract should be a condensed version of the transcript, not a verbatim copy.


text:
    2009 Ark. 342
    Donald THOMPSON, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 09-249.
    Supreme Court of Arkansas.
    June 4, 2009.

      Cindy M. Baker, Berryville, for appellant.
    No response.
   PER CURIAM.

| |Appellant Donald Thompson, by and through his attorney, Cindy M. Baker, has filed a motion for belated appeal.

Thompson’s notice of appeal in this case was due on September 4, 2008. In his original motion for belated appeal, filed on March 10, 2009, Thompson argued that his notice of appeal had not been filed until September 18, 2008, because he had been placed on administrative lockdown at the jail and had not been permitted to contact his attorney to tell her that he wanted to appeal. At that time, we determined that it was not plain from the motion, affidavits, or record whether there was attorney error, and we remanded the matter to the circuit court for entry of findings of fact regarding Thompson’s alleged inability to communicate with his attorney during a period in which he was on 12administrative lockdown at the jail. See Thompson v. State, 2009 Ark. 191, 305 S.W.3d 425 (per curiam).

Following this court’s remand, the circuit court conducted an evidentiary hearing at which the court heard the testimony of appellant Thompson; attorney Cindy Baker; Thompson’s mother, Sharon Ben-da; Captain Archie Rousey of Carroll County Sheriffs Office; Sergeants Patricia Wood and Juan Cribbs and retired Sergeant Walter Noftsger of the Sheriffs Office; and Corporal Christine Clark of the Sheriffs Office. After the hearing, the circuit court entered an order in which it found that Thompson had been on lock-down from August 19 to August 25, 2009, and that during that time, Thompson had not been prohibited from contacting his attorney. The court also noted that, during the first three weeks of Thompson’s incarceration, he had spoken to and attempted to speak with his attorney, and that his attorney was made aware of his desire to see her and discuss the appeal.

The court pointed to the testimony of the Sheriffs Office personnel. Captain Rousey indicated that even when a prisoner is on lockdown, he is not denied access to his attorney and may speak to his attorney on the phone or communicate by mail. Captain Rousey also testified that the only time attorney Baker spoke to Thompson at the jail was on September 18, 2008. However, the jail staff also noted that Thompson never asked to speak to his ^attorney while he was in lockdown, apparently assuming that he would not be allowed to speak to her.

The court described the testimony of Thompson’s mother, Sharon Benda, who stated that she had spoken to her son twice weekly at the jail, and that she had communicated her son’s desire to appeal to Baker. Benda said that she had the money for the appeal as early as July but that she was not aware that Baker wanted the money before the appeal was filed. The court stated that it believed that Benda had the money to pay Baker for the appeal before Thompson went to jail; that Thompson had initially been uncertain about the appeal but later communicated his desire to appeal; and that Thompson repeatedly asked Benda to have Baker contact him.

Cindy Baker also testified at the hearing. She stated that she had spoken to Thompson after he was incarcerated and that he had advised her that his girlfriend and mother would be trying to get the money for his appeal; however, the court noted that this testimony contradicted Benda’s testimony, described above, that Thompson had the money for the appeal earlier. Although Baker testified that she was communicating with Benda and had no reason to believe that Benda would not communicate Thompson’s wishes, the court found that her testimony contradicted Thompson and Benda’s assertions that Thompson asked to speak with Baker and that Benda had communicated Thompson’s desire to appeal. The court noted Thompson’s testimony that he had been permitted to use the |4phone at the booking desk to call Baker’s office on August 26, 2008, as soon as he was released from lockdown, but Baker offered no explanation for her failure to go to the jail and see her client until September 28, 2008. The court described Baker as an “experienced attorney who concentrates her practice in the area of criminal law” and stated its belief that she was “familiar with the jail policies and ... knew she could see her client at any time.”

Regarding the original motion for belated appeal, the circuit court found that Baker’s statements in that motion — that Thompson had been in lockdown when the appeal was due — were untrue. The court further found that Baker’s statement in the motion to the effect that Thompson had no access to a telephone or mail during that time were also untrue. The court determined that the statements in the motion were “unsupported by the testimony of the defendant, his mother, and law enforcement.”

Moreover, the court credited Thompson’s testimony that Baker’s secretary brought the affidavit in support of the motion to the jail and waited for Thompson to sign it. Many of the statements in the affidavit, however, the court found to be untrue. For example, the court pointed to the averments that Thompson was in lock-down and could not communicate with anyone for a week, and the statement that Thompson was unable to secure funding for his appeal until September 18, 2008. The circuit court stated flatly that these statements were false.

| ¡¡The court concluded its factual findings by stating that Thompson had been placed in lockdown from August 19, 2008, until August 25, 2008, and that he was not prohibited from calling or seeing his attorney during this time. The court found that the testimony given in open court did not support the allegations made in the motion for belated appeal and that the statements made in the affidavit in support of the motion were untrue.

From the circuit court’s findings of fact, we conclude that Thompson did timely communicate his desire to appeal to his attorney via his mother and had the funds available to pay counsel to pursue the appeal. However, his attorney did not contact him until well after the time for filing the notice of appeal had expired. In support of this conclusion, we note the trial court’s crediting of Thompson’s testimony that he called Baker on August 26, as soon as he was released from lockdown. Baker, however, undisputedly did not contact Thompson until September 18, 2008, and she gave no explanation for her failure to visit her client in order to ascertain his wishes regarding his appeal.

When the judgment is entered in a criminal case and the trial attorney is made aware by the convicted defendant that the defendant desires to appeal within the thirty-day period from the date of judgment for filing a notice of appeal, counsel is obligated to file a timely notice of appeal. Spillers v. State, 341 Ark. 749, 19 S.W.3d 35 (2000) (per curiam). The obligation to file the notice of appeal and to preserve the appeal by lodging at least a partial record in the appellate court is not affected by counsel’s inexperience with appellate work, Rthe convicted defendant’s financial status, or counsel’s belief that the defendant could not prevail on appeal. See Mallett v. State, 330 Ark. 428, 954 S.W.2d 247 (1997) (per curiam); see also James v. State, 329 Ark. 58, 945 S.W.2d 941 (1997) (per curiam).

The obligation to preserve the appeal also exists if retained counsel believes the appellant to be capable, but unwilling, to pay the costs of the appeal. In no event may counsel simply abandon an appeal. It is well settled that under no circumstances may an attorney who has not been relieved by the trial court fail to preserve an appeal when the convicted defendant timely communicates to counsel his desire to appeal. Ragsdale v. State, 341 Ark. 744, 19 S.W.3d 622 (2000) (per curiam); Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000) (per curiam).

Given the facts as found by the circuit court, we conclude that Thompson’s motion for belated appeal should be granted, and we direct the clerk of this court to accept the record and docket this appeal. However, we refer his attorney, Cindy Baker, to the Supreme Court Committee on Professional Conduct.

Motion for belated appeal granted.


author: LARRY D. VAUGHT, Chief Judge. JOSEPHINE LINKER HART, Judge,

text:
    2009 Ark. App. 400
    J. Somers MATTHEWS, Appellant, v. Katherine MATTHEWS, Appellee.
    No. CA 08-583.
    Court of Appeals of Arkansas.
    May 20, 2009.
    See also, 2007 WL 987805.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Sam Hilburn and Traci LaCerra, North Little Rock, for appellant.
    Dover Dixon Horne, PLLC, by: W. Michael Reif, Little Rock, for appellee.
   LARRY D. VAUGHT, Chief Judge.

| iSomers Matthews appeals the trial court’s order increasing his present alimony obligation and striking, as a discovery sanction, his own motion requesting reimbursement for a previous overpayment of alimony. We affirm.

The parties were divorced in 1995. At that time, Somers was ordered to pay Katherine alimony in the amount of $4500 per month until September 1, 1997, when the alimony would decrease to $4000 per month until September 1, 1998, when the alimony would decrease to $3500 per month until September 1, 1999, when the alimony would decrease to $3000 per month until Katherine died or remarried. However, alimony was reduced to $1935 per month in May 1996, due to Somers leaving his employment at 12Stephens, Inc. Subsequently, alimony was increased to $3500 per month in March 2006, but this award was reversed by this court in April 2007, and the $1935 per month alimony was reinstated.

In June 2007, Somers filed a motion to modify the amount of life insurance he was required to maintain on his life; to terminate the charging order by which his funds were held in the registry of the court; and to require reimbursement by Katherine of $12,520 in overpayments of alimony resulting from the reversal of the 2006 increase in alimony by this court. In response, Katherine filed a counterclaim for an increase in alimony, alleging that there had been a substantial change in circumstances that justified such an increase.

In September 2007, Katherine filed a motion to compel Somers to respond to interrogatories and requests for production of documents she had submitted to him in late June 2007; in response, Som-ers alleged that Katherine, too, had failed to respond to discovery requests submitted to her. The trial judge ordered Somers to provide the information requested by Katherine on or before September 21, 2007. On September 26, 2007, Katherine filed a second motion to compel, stating that Somers had furnished bank statements from May 2006, through July 2007, but had not furnished: (1) a copy of his 2005 federal and state income tax returns; (2) copies of his 2005 W-2, 1099, K-l or other documents showing income received in 2005; (3) a copy of his 2006 federal and state income tax returns; (4) copies of his 2006 W-2, 1099, K-l or other documents showing income received in 2006; (5) a copy of his affidavit of financial means; (6) copies of his bank |sstatements from January 1, 2006, through March 2006; (7) copies of his cancelled checks and deposit slips from January 1, 2006, through present; (8) copies of his credit card statements from January 1, 2006, through present; or (9) copies of accountant work papers for 2005 and 2006. The trial court gave Somers until 4:30 p.m. on November 15, 2007, to furnish the above identified information to Katherine. On November 16, 2007, Katherine filed a third motion to compel, stating that Somers had still not provided: (1) his 2005 state tax return; (2) 2006 federal and state tax returns; (3) an affidavit of financial means; (4) bank statements from January 1, 2006, through March 2006; (5) copies of cancelled checks and deposit tickets for the checking account from January 1, 2006, through present; or (6) a Form 1099 from Sherwood Land Company, Inc. She alleged that she had provided Somers with all information requested of her, including medical records.

A hearing on Katherine’s third motion to compel was held on November 29, 2007, one day before the hearing on the parties’ pending competing requests for relief. At that hearing, Somers’s counsel asserted that Somers was then at his counsel’s office completing his affidavit of financial means. His counsel also stated that the 2005 state tax return had been provided; the 2006 tax returns had not yet been prepared; and that there were no bank statements for the checking account. Somers’s counsel further conceded that there was no issue concerning Somers’s ability to pay alimony and that he had always had the ability to pay alimony. As a result of Somers’s failure to provide the requested information, the trial court sanctioned him by striking his motion requesting repayment of the excess alimony he [thad paid to Katherine. An order reflecting this sanction, as well as the finding that Somers had the ability to pay a reasonable amount of alimony, was subsequently entered on January 2, 2008. Additionally, Somers was ordered to pay a total of $1500 in attorney fees ($350 pursuant to an order to compel entered on November 19, 2007, and $1150 in the January 2, 2008, order).

The following day, Somers’s motion to reduce the insurance amount and terminate the charging order and Katherine’s request for an increase in alimony were heard. After the hearing, the trial court issued a letter opinion in which it found that the amount of alimony paid by Som-ers to Katherine should be increased to $4500 per month. In reaching this decision, the trial court gave substantial weight to Katherine’s rheumatologist, Dr. Columbus Brown IV, who testified that since the last hearing, Katherine’s disability rating had increased from 60-70% to 80-85%; that her rheumatoid arthritis was presently not under control; that he was of the opinion that she was unable to hold a full-time job; and that while he recommended an IV treatment of Orencia to treat Katherine’s disease, Katherine did not have the funds to avail herself of that treatment at this time. Likewise, the trial court gave no weight to Somers’s vocational rehabilitation expert, Bob White, who testified that he believed Katherine could work. The trial court found that White did not interview Katherine and used outdated medical information in his assessment. The trial court further found that Katherine’s management of her apartments, from which she earned about $1000 per month in income, was all the work Katherine was capable of performing and was all the |,fincóme she was capable of earning in light of her education and her health problems.

Katherine testified about her rheumatoid arthritis, her medication, and the fact that she was limited in what she could do. The trial court found that Katherine’s exercise with her personal trainer was determined by her doctor to be beneficial to her; that she was driving a vehicle that had 244,000 miles on it, that she was having mechanical problems with her vehicle due to its age, and that she needed a new roof on her house. The trial court also noted that Katherine had to use proceeds from an insurance settlement from a burglary to meet her monthly living expenses. The trial court found that Somers was in a far superior position to Katherine financially; that he clearly had the ability to pay alimony; that his income was substantially more than Katherine’s; that his resources were greater than Katherine’s; that he had a college degree while Katherine did not; and that he was capable of working while she was not.

After deducting expenses attributable to the parties’ daughter, who is attending Vanderbilt University, the trial court found that Katherine’s monthly expenses were $5365 (not including the $400 monthly Orencia treatments recommended by Dr. Brown), and her income, including current alimony, was $3012 per month, leaving her a monthly deficit of $2353 (the order erroneously states that there is a deficit of $2335). The trial court then awarded an increase in alimony to $4500 per month, which would increase Katherine’s total income to $5562 per month with expenses of $5365 per month. The trial court found that this amount would allow Katherine to meet her monthly living expenses and to meet | ^extraordinary and unusual living expenses, and it would allow her to reasonably maintain her standard of living. An order to this effect was entered on January 2, 2008. This appeal followed.

Alimony Increase

Somers’s first point on appeal is that the trial court abused its discretion by increasing the amount of Katherine’s alimony. In Bracken v. Bracken, 302 Ark. 103, 105, 787 S.W.2d 678, 679 (1990) (citations omitted), our supreme court stated:

An award of alimony is always subject to modification, upon application of either party. Such modification must be based, however, on a change in the circumstances of the parties. The burden of showing such a change in circumstances is always upon the party seeking the change in the amount of alimony. The primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay. An award of alimony is in the sound discretion of the chancellor, and we will not reverse such an award unless the chancellor has clearly abused his discretion.

The purpose of alimony is to rectify the economic imbalance in earning power and standard of living of the parties to a divorce in light of the particular facts of each case. Harvey v. Harvey, 295 Ark. 102, 747 S.W.2d 89 (1988).

In this case, there is no question that Somers has the ability to pay the amount of alimony ordered by the trial court; in fact, that was conceded by his counsel. Therefore, the question becomes whether Katherine has a need for additional alimony. We cannot say that the trial court abused its discretion in awarding Katherine an increase in alimony. Katherine is being treated for the progressive disease of rheumatoid arthritis, which her doctor testified has become worse since the last hearing. Her doctor is now recommending a new treatment |7in addition to her current treatments, but she is unable to pay for the treatment at this time. Furthermore, her doctor testified that it was his opinion that she was unable to hold a regular job. The trial court gave her doctor’s testimony great weight. While Som-ers contends on appeal that according to his own expert, Bob White, Katherine could hold a job, the trial court specifically found White’s testimony was not entitled to any weight. It is the province of the trial court to determine witness credibility, as the trial court is in the best position to make credibility determinations.

We note that the increase in alimony makes Katherine’s monthly income exceed her monthly expenses on her affidavit of financial means; however, her affidavit did not include the $400 monthly Orencia treatments that Dr. Brown testified Katherine needed in addition to her other medications in an ongoing attempt to control her rheumatoid arthritis. The addition of that treatment would increase Katherine’s monthly expenses beyond her monthly income. Additionally, it appears that in setting the $4500 monthly alimony, the trial court took into consideration both Katherine’s need for a new vehicle at some point in time and some major home repairs that were going to need to be made.

Somers also makes other arguments against the alimony increase. He argues that the reason Katherine wants an increase in alimony is because she wants him to be responsible for their daughter’s allowance and clothing at college. However, the trial court removed any expenses attributable to the parties’ daughter in its computations, and Katherine still did not have enough income to cover her monthly expenses. He further argues that this increase in | salimony is equivalent to a distribution of his non-marital property. However, payment of alimony after a divorce comes from the payor’s separate property; therefore, the alimony payments from Somers to Katherine are necessarily paid from Somers’s separate property.

Discovery Sanction

Somers’s second point on appeal is that the trial court abused its discretion in striking his motion and denying him the right to seek reimbursement of the overpayment of alimony stemming from the 2006 appeal to this court in the amount of $12,520. We disagree.

When a party fails to obey a discovery order, the circuit court “may make such orders in regard to the failure as are just....” Ark. R. Civ. P. 37(b)(2). The Rule gives a non-exclusive list of examples of sanction orders. The list includes orders “striking out pleadings or parts thereofi.]” Ark. R. Civ. P. 37(b)(2)(C). Mr. Matthews’s motion for reimbursement was not a pleading as that term is defined by Rule of Civil Procedure 7(a). But, his motion contained a request for relief, and Rule 37(b)(2)’s general grant of sanction authority to the circuit court is broad enough to cover an order striking a motion. The imposition of sanctions for the failure to make discovery rests in the trial court’s discretion, and the appellate courts have often upheld the trial court’s exercise of discretion in granting severe Rule 37 sanctions for flagrant discovery violations. Rush v. Fieldcrest Cannon, Inc., 326 Ark. 849, 934 S.W.2d 512 (1996). There is no requirement that a trial court make a finding of willful or deliberate disregard prior to sanctions being imposed for failure to comply with discovery requirements. Coulson Oil Co. v. Tully, 84 Ark.App. 241, 139 S.W.3d 158 (2003).

|Somers argues that there was no flagrant discovery violation because many of the documents requested were not in his possession or did not exist. We do not agree. Katherine had to ask three times for documents; each time, Somers would provide a few of the documents. The day prior to the hearing, during the hearing on Katherine’s third motion to compel, it was revealed that Somers was at that time in his attorney’s office completing his affidavit of financial means. Somers cannot seriously argue that he did not have the information to complete his affidavit of financial means more than one day prior to the hearing where a request for an increase in alimony was being entertained. Surely he knew the extent of his income, the amount he owed creditors, and his average monthly expenses prior to that late date. His actions, indeed inaction, were a flagrant disregard of the trial court and its orders, his ex-wife, and the entire judicial system. We find no abuse of discretion in the trial court’s proper use of this sanction.

Finally, Somers makes the passing argument in his brief that “to strike the request to be reimbursed the overpayment of alimony ignores this Court’s directive from the last appeal.” We disagree. Our order was not impugned; it was not addressed. The trial court never reached the merits of the issue of reimbursement because that motion, which was subject to discovery-violation sanctions, was stricken by the trial court under Rule 37 of the Arkansas Rules of Civil Procedure. The trial court did not reach the merits of this argument; neither can this court.

Affirmed.

ROBBINS, MARSHALL, HENRY and BROWN, JJ., agree.

HART, J., dissents.

JOSEPHINE LINKER HART, Judge,

dissenting.

|lnI recognize that domestic relations cases are necessarily fact-intensive, but that does not excuse the wide variation in this court’s jurisprudence in this area of the law. One need not look any further than the two appeals involving the parties that are before us today. In an unpublished case, CA06-680, 2007 WL 987805, hereinafter Matthews I, handed down on April 4, 2007, this court noted that Katherine’s “Affidavit of Financial Means demonstrated that her income exceeded her expenses,” so we reversed the trial court’s decision to increase alimony. Today, the majority similarly notes that the increase in alimony “makes Katherine’s monthly income exceed her monthly expenses on her affidavit of financial means,” but instead of reducing the trial court’s award of alimony as this court did in Matthews I, the majority invites Katherine to buy a new car and make home improvements.

While the majority’s resolution of the first issue in this case is unsettling, its resolution of the second point is untenable. This court’s failure to enforce its own order betrays the majority’s misunderstanding of the Arkansas Rules of Civil Procedure and countenances a blatant affront to the dignity and authority of this court.

After the mandate issued in Matthews I, where the court of appeals reversed an alimony award, effectively reducing Katherine’s monthly support from $3,500 to $1,935, InSomers petitioned the trial court to refund the excess alimony that he had paid his ex-wife, some $12,520. Katherine then counterclaimed for an increase in alimony. It is well settled that Katherine’s counterclaim constitutes a separate and distinct cause of action. Smith v. Edwards, 279 Ark. 79, 648 S.W.2d 482 (1983); Ark. R. Civ. P. 13(b). The trial court abused its discretion by allowing Katherine to retain the $12,520 that this court clearly stated that she was not entitled to, under the guise of a “sanction” for failing to provide discovery in a counterclaim filed nearly two months after our mandate issued. This was not a “sanction” for a discovery violation, but a fine illegally imposed and paid directly to Katherine by the trial court, and a cleverly disguised contempt of this court by a trial judge.

It is true that Somers was less than diligent in answering the discovery propounded in Katherine’s counterclaim. While Somers did produce bank statements and tax returns and made his accountant available for a deposition, Somers ultimately failed to produce a 2006 federal and state tax return, which he claimed had not been prepared; bank statements from January 2006 to March 2006, which he claimed did not exist; photocopies of canceled checks, which he claimed his bank did not retain; and a 1099 from the Sherwood Land Company, which he claimed he did not possess. However, it was established at the hearing that his failure to produce these documents did not in any way impair Katherine’s ability to pursue her counterclaim. As found by the trial court, there was never a dispute as to whether Somers had the means to pay Katherine more alimony — the only contested issue presented by Katherine’s counterclaim was whether her needs justified an increase in alimony.

| ]2Even though the requested documentation was irrelevant to Katherine’s counterclaim — the trial judge expressly stated, “There’s no question he’s got the ability to pay” — the trial judge nonetheless decided to punish Somers for “dragging his feet” and not “playing by the rules.” The trial judge granted Katherine all her attorney fees associated with her motion to compel, some $16,296.43, and denied Som-ers the opportunity to present any evidence concerning limits on his ability to pay increased alimony. Harsh as these sanctions were, I concede that both are authorized by Rule 37 of the Arkansas Rules of Civil Procedure. The trial judge, however, also struck Somers’s petition for a refund of the excess alimony, which was based on a determination by the Arkansas Court of Appeals in an opinion that predated her counterclaim. This “sanction” exceeded the trial judge’s authority.

Because the majority sloughs this sanction off as not being an abuse of discretion, once again, I feel compelled to remind the majority, as I did in Evtimov v. Milanova, 2009 Ark.App. 208, 300 S.W.3d 110, that jurisprudence has defined judicial discretion as

discretion bounded by rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of judicial whim, but the exercise of judicial judgment, based on facts and guided by law or the equitable decision or what is just and proper under the circumstances. It is legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law.... A liberty or privilege to decide what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of the law.

While it is true that a trial judge has the authority to impose “severe sanctions,” the | ^majority has not cited any authority that empowers a trial judge to reach outside the current lawsuit in which the discovery violations occurred and dismiss a separate cause of action. The case cited by the majority, Rush v. Fielderest Cannon, Inc., 326 Ark. 849, 934 S.W.2d 512 (1996), certainly does not address this issue. There, the “severe sanction” was the dismissal with prejudice of the appellant’s products liability lawsuit when she repeatedly refused to provide a release of her medical records and disclose the identity of her expert witnesses in that lawsuit.

I cannot ignore that the so-called “sanction” is a direct affront to the authority of the court of appeals. In imposing this “sanction,” the trial judge denied Somers his right to collect the excess alimony that the court of appeals said he was entitled to in Matthews I. Essentially, the trial judge has reinstated the order that this court has reversed.

      . Somehow the majority's idea that the appellant was required to ask the trial court if it was indeed flouting the authority of the court of appeals and get a ruling on that question is untenable. Suffice it to say that in Matthews I, this court reduced the trial court’s award of alimony from $3,500 to $1,935, yet rather than refund to Somers the money that he overpaid, the trial judge ordered that he forfeit it. On top of that, the trial judge added an additional $1000 per month to his ostensibly reduced alimony award, despite the fact that the majority acknowledges that the award is not justified by Katherine's support affidavit. I simply did the math.


author: DAVID M. GLOVER, Judge.

text:
    2009 Ark. App. 414
    Phillip F. HAMMOCK, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1045.
    Court of Appeals of Arkansas.
    May 20, 2009.

      Joseph P. Mazzanti, III, Lake Village, for appellant.
    Dustin McDaniel, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
   DAVID M. GLOVER, Judge.

17A Drew County jury found appellant, Phillip Hammock, guilty of failing to register as a sex offender. Hammock was sentenced, as a habitual offender, to twenty-one years in prison. On appeal, he argues that Arkansas’s sex-offender registration requirement does not apply to him, that his conviction for failure to register as a sex offender is an unconstitutional ex post facto application of the law, and that the trial court’s ruling on a Batson challenge was against the preponderance of the evidence. We affirm.

It is undisputed that in June 1996 Hammock pleaded guilty in the state of Washington to the offense of third-degree rape. He was sentenced to fourteen months in prison, with two additional years of community placement, and required to register as a sex offender in Washington.

|2Testimony from Paula Stitz, the manager of the Arkansas Crime Information Center sex-offender registry, confirmed that Hammock registered as a sex offender on March 12, 2002, and then regularly sent back required verification letters every six months until February 2004, when he ceased doing so. Stitz further testified that if Hammock was required to register in any other state, he was also required to register in Arkansas.

For his first point of appeal, Hammock argues that his conviction for failing to register as a sex offender was an unconstitutional ex post facto application of the law and that the trial court erred in applying the registration requirements of the Sex Offender Registration Act of 1997, found at Arkansas Code Annotated section 12-12-901 et seq., to him. Specifically, he argues that section 12-12-905 (Supp.2007) did not apply to him because the statute did not become effective until after his conviction. This statute provides, in pertinent part:

(a) The registration or registration verification requirements of this subchapter apply to a person who:
(1) Is adjudicated guilty on or after August 1,1997, of a sex offense, aggravated sex offense, or sexually violent offense;
(2) Is serving a sentence of incarceration, probation, parole, or other form of community supervision as a result of an adjudication of guilt on or after August 1,1997, for a sex offense, aggravated sex offense, or sexually violent offense[.]

The trial court found that subsection (a)(2) was applicable to Hammock, as he was still serving some form of community supervision after August 1, 1997. Hammock argues that |3the language of the statute “states that registration is applicable to him only if he was serving some form of community supervision for an adjudication of guilt on or after August 1, 1997.” (Hammock’s emphasis.)

We hold that it is unnecessary to interpret section 12-12-905 in order to determine whether Hammock was required to register under it as a sex offender in Arkansas because the next successive statutory section, § 12-12-906(a)(2)(A)-(B)(i) (Supp.2007), clearly requires Hammock to register as a sex offender. This statutory section requires in more definite terms:

(2)(A) A sex offender moving to or returning to this state from another jurisdiction shall register with the local law enforcement agency having jurisdiction within three (3) business days after the sex offender establishes residency in a municipality or county of this state.
(B)(i) Any person living in this state who would be required to register as a sex offender in the jurisdiction in which he or she was adjudicated guilty of a sex offense shall register as a sex offender in this state whether living, working, or attending school or other training in Arkansas.

Hammock’s conviction in the state of Washington required that he register as a sex offender; therefore, under section 12-12-906(B)(i), he is also required to register as a sex offender in Arkansas.

For his second point of appeal, Hammock, who is African-American, argues that the trial court’s ruling on his Batson challenge was against the preponderance of the evidence. He argued that the State exercised five peremptory challenges, four against African-⅛ American jurors and one against a Caucasian juror, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Hinkston v. State, 340 Ark. 530, 538-39, 10 S.W.3d 906, 911-12 (2000), our supreme court set forth the three-step process to be used by our trial courts in the case of Batson challenges:

We have delineated a three-step process to be used in the case of Batson challenges. MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). First, the strike’s opponent must present facts to raise an inference of purposeful discrimination; that is, the opponent must present a prima facie case of racial discrimination. Id. Second, once the strike’s opponent has made a prima facie case, the burden shifts to the proponent of the strike to present a race-neutral explanation for the strike. Id. If a race-neutral explanation is given, the inquiry proceeds to the third step, wherein the trial court must decide whether the strike’s opponent has proven purposeful discrimination. Id. Here, the strike’s opponent must persuade the trial court that the expressed motive of the striking party is not genuine but, rather, is the product of discriminatory intent. Id.

A trial court’s ruling on a Batson challenge will be reversed only when its findings are clearly against the preponderance of the evidence; some measure of deference is given to the trial court due to its opportunity to observe the parties and determine their credibility. Id. at 539, 10 S.W.3d at 912.

When it was determined that the court reporter’s recorder had not been on during his Batson challenge, the trial court summarized on the record both Hammock’s Batson^challenge and the State’s explanation. The trial court stated that defense counsel made a Batson challenge to the prosecutor’s five strikes; that the prosecutor explained that all of the strikes he made, including the one against the Caucasian juror, were supported by juror questionnaires that reflected that each juror had previous criminal charges filed against either the juror or a family member; and that the State’s explanation was not disputed by defense counsel. The trial court also noted that it had made the State take one of the stricken jurors despite her answers on the questionnaire. The trial court then asked defense counsel if there was anything else. In response, defense counsel stated only that he had made an exception to the other three strikes made by the prosecutor. The prosecutor then offered that one of the stricken jurors had stated the day before that he held it against the prosecutor that he had sent his brother to prison; the prosecutor also noted that he did keep a black male on the jury. The colloquy continued. The trial court then stated that it was trying to be practical about the situation, noting that “a lot” of African-Americans took themselves off the panel because of their reluctance to judge, which the court could do nothing about. Further, the trial court advised the prosecutor that the State was put on notice that if it was going to use the fact that the juror or a family member had been charged with any offense other than a traffic offense to strike a minority, there had to be “follow up” to find out if the offense “happened in the last twenty years or last two years, where did it happen, first cousin, second cousin, brother, sister.” For emphasis, the trial court explained |fithat being charged with an offense could not be used in an unlimited manner for excusing any particular race. Commenting that it was the best that could be done in the situation, the trial court reiterated that it had made the State take one of the stricken African-American jurors, which left two African-American jurors on the jury panel. Following this, the trial court, for the second time, asked defense counsel if there was anything else. Defense counsel responded only by asking that the record reflect that his client was African-American.

Here, Hammock concedes that the State’s reason for striking the African-American jurors was race neutral. His argument, therefore, lies within the third prong of the test for a Batson challenge— that the trial court did not give him the opportunity to persuade it that the State’s motive in striking the jurors was not genuine but was rather the product of discriminatory intent and he was therefore entitled to a new trial.

Our earlier recitation from the record of Hammock’s Batson challenge indicates that the trial court gave Hammock two opportunities to add anything further to his challenge. The first time, defense counsel noted, without more, that he had made an exception to the other three strikes made by the prosecutor. The second time, defense counsel responded by asking, without more, that the record reflect that his client was African-American. The record reflects there was no attempt by defense counsel to add anything further, even after being asked by the trial court on two occasions. Though Hammock had the opportunity to |7make additional arguments to the trial court, he failed to do so. In Weston v. State, 366 Ark. 265, 275, 234 S.W.3d 848, 856 (2006), our supreme court, citing Owens v. State, 363 Ark. 413, 417, 214 S.W.3d 849, 852 (2005) (internal citations omitted), held:

[I]t is the responsibility of the party opposing the strike to move the matter forward at the third stage of the process and to meet the burden of persuasion. This is not the trial court’s responsibility, as the trial court can only inquire into the evidence that is made available to it. According to this court, if the party opposing the strike does not present more evidence, no additional inquiry by the trial court is required.

Affirmed.

GLADWIN and GRUBER, JJ., agree.

      . The trial court required the State to accept one of the African-American jurors that it initially struck; the State filed a notice of cross-appeal regarding this issue, but abandoned its pursuit of the cross-appeal. The jury panel ultimately had two African-American jurors seated on it.