author: JIM HANNAH, Chief Justice.

text:
    2009 Ark. 275
    Joseph SHERMAN, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-523.
    Supreme Court of Arkansas.
    May 14, 2009.
    Rieves, Rubens & Mayton, by: Kent J. Rubens; and Daniel G. Ritchey, West Memphis, for appellant.

      Dustin McDaniel, Attorney General, by: Laura Shue, Assistant Attorney General, for appellee.
   JIM HANNAH, Chief Justice.

| Appellant Joseph Sherman appeals the revocation of a previous suspended imposition of sentence that was entered upon the denial of his motions to suppress. Sherman asserts that the circuit court erred in allowing evidence in a revocation proceeding that it had suppressed for new criminal charges; that is, he contends that the circuit court erred in failing to apply the exclusionary rule to the revocation proceeding. He also asserts that, pursuant to article 2, section 15 of the Arkansas Constitution, the circuit court erred in denying his motion to suppress audio and video recordings of cocaine deliveries because a state actor obtained the recordings inside his house without a warrant. This case was certified to this court by the court of appeals as a case involving issues of federal ^constitutional interpretation and significant issues needing clarification or development of the law. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1 — -2(b)(3) and (5). We affirm.

On November 15, 2004, Sherman pled guilty to possession of cocaine with intent to deliver, and the circuit court sentenced him to ten years’ imprisonment with imposition of an additional five years’ suspended sentence. An amended judgment and commitment order reflecting the conviction and sentence was entered on December 9, 2004.

On June 2, 2006, Blytheville Police Department Investigator Jason Lloyd and Mississippi County Sheriffs Department Sergeant Robert Ephlin presented to the circuit court an affidavit for search warrant for 1044 Moore Street in Blytheville, a residence believed to be occupied by Sherman. In the affidavit, the investigators stated that they had been assigned to work narcotics cases in Mississippi County and the City of Blytheville and that they were aware that Sherman was currently involved in the distribution of cocaine and had been for a number of years. The affidavit stated that the investigators were aware that Sherman had been charged with five drug-related offenses within the past eleven years, had served time in the Arkansas Department of Correction for some of those offenses, and was currently on parole. The affidavit stated that at the time of one of Sherman’s prior arrests, which took place at the 1044 residence, Sherman attempted to destroy evidence by flushing it down the toilet, after officers knocked and announced their presence.

The affidavit further stated that on April 27, 2006, Lloyd was involved in a |3surveillance of Sherman’s residence at 1044 Moore when he observed a white female enter the residence and then leave after a few minutes. Lloyd followed the female and stopped her after he observed traffic violations. During the stop, Lloyd recovered a small baggie of suspected powder cocaine. The woman was arrested and charged with possession of a controlled substance.

The affidavit stated that on June 2, 2006, Lloyd was again conducting surveillance of Sherman’s residence and observed someone enter the residence and leave a short time later. The person was stopped, and Lloyd recovered a small baggie that contained suspected powder cocaine. The person subsequently told Lloyd that he or she had been inside Sherman’s residence and purchased the cocaine for forty dollars.

Based upon the affidavit, the circuit court issued a search warrant on June 2, 2006, which provided that the “knock and announce” rule would not apply. A flash-bang device was used, and during the search, officers recovered a substance believed to be crack cocaine, as well as drug paraphernalia.

On December 13, 2006, Lloyd presented to the district court an affidavit for search warrant. In this affidavit, Lloyd stated that a confidential informant had made two controlled buys of crack cocaine from Sherman at his residence. The district judge signed the search warrant that same day. Lloyd requested and received an exception to the “knock and announce” rule. Upon execution of the warrant, officers recovered drug paraphernalia, pills they suspected to be Xanax, and what officers believed to be trace amounts of cocaine.

|4The State filed new criminal charges against Sherman, and on May 1, 2007, the State filed a petition for revocation of suspended imposition of sentence, asserting that Sherman had committed various new drug crimes, including possession of cocaine with intent to deliver and possession of drug paraphernalia on June 2, 2006, delivery of cocaine on December 5, 2006, delivery of cocaine on December 27, 2006, and possession of Xanax and drug paraphernalia on December 31, 2006. Sherman moved to suppress all the evidence from both searches and separately moved to suppress any audio or video recordings obtained by the confidential informant.

The circuit court orally ruled on both motions to suppress, beginning with whether the evidence was admissible for new criminal charges. With respect to the June 2006 search, the circuit court concluded that the use of the flash-bang device was unreasonable. The circuit court further concluded that the affidavit for search warrant did not establish probable cause for a search. Accordingly, the circuit court granted Sherman’s motion to suppress the evidence seized from the June 2006 search, with respect to new criminal charges.

The circuit court then considered the motion-to-suppress evidence seized from the | .¡December 2006 search. The circuit court concluded that the affidavit for search warrant did not establish probable cause under either the United States Constitution or the Arkansas Constitution. The circuit court found that the affidavit contained no facts establishing the veracity of the informant and that it was “unusual” that the officer who prepared the search warrant submitted it to the court with the no-knock provision already checked, despite the fact that the affidavit contained no facts that would justify a no-knock search.

The circuit court also concluded that the good-faith exception to the warrant requirement, under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not apply. Accordingly, the circuit court suppressed the evidence from the December 2006 search, with respect to new criminal charges.

The circuit court then addressed the issue of whether the suppression of the evidence from the trial of the new charges required suppression at the revocation hearing. The court concluded that there was a different good-faith exception that applied to revocation hearings, one that required that officers exhibit subjective, rather than objective good faith, as is required under Leon. The circuit court found that the officer’s errors had more to do with bad training than any bad intent. As such, the circuit court concluded that, because the officers acted in subjective good faith, the exclusionary rule did not apply to the revocation hearing. Therefore, the circuit court allowed admission of the evidence at the revocation hearing.

Sherman also challenged the State’s use of audio and video recordings made by the [(¡confidential informant while in Sherman’s residence. Sherman claimed that the two entries by the “secret agent” of the Blytheville Police Department violated his rights under the Fourth Amendment of the United States Constitution and article 2, section 15 of the Arkansas Constitution. The circuit court ruled that the informant was an agent of the police department. However, based on the reasoning in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 812 (1966), the circuit court concluded that using an informant to enter and record illegal transactions violated neither the Fourth Amendment nor the Arkansas Constitution. Therefore, the circuit court ruled that the tapes could be used as evidence at the revocation hearing.

Based on the evidence seized in the two searches and the evidence derived from the taping of the informant’s conversations with Sherman, the circuit court revoked Sherman’s suspended imposition of sentence. On August 27, 2007, a judgment and commitment order was entered sentencing Sherman to a term of twenty years in the Arkansas Department of Correction. Sherman now brings this appeal.

Application of the Exclusionary Rule at Revocation Proceedings

Sherman first contends that the circuit court erred in failing to apply the exclusionary rule at the revocation proceeding. Sherman states that the circuit court erroneously concluded that a subjective good-faith exception applies to revocation proceedings, as opposed to the objective good-faith exception required under Leon. The State responds that the circuit court correctly concluded that, in revocation proceedings, Arkansas courts |7look to the subjective motivations of the officers to determine the exclusionary rule’s applicability.

The United States Supreme Court has explained that

[t]he exclusionary rule prohibits introduction into evidence of tangible materials seized during an unlawful search, Weeks v. United States, 232 U.S. 383 [34 S.Ct. 341, 58 L.Ed. 652] (1914), and of testimony concerning knowledge acquired during an unlawful search, Silverman v. United States, 365 U.S. 505 [81 S.Ct. 679, 5 L.Ed.2d 734] (1961). Beyond that, the exclusionary rule also prohibits the introduction of derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search, up to the point at which the connection with the unlawful search becomes “so attenuated as to dissipate the taint,” Nardone v. United States, 308 U.S. 338, 341 [60 S.Ct. 266, 84 L.Ed. 307] (1939). See Wong Sun v. United States, 371 U.S. 471, 484-485 [83 S.Ct. 407, 9 L.Ed.2d 441] (1963).

Murray v. United States, 487 U.S. 533, 536-37 [108 S.Ct. 2529, 101 L.Ed.2d 472] (1988). This court has also held that “the exclusionary rule commands that where evidence has been obtained in violation of search and seizure protections, the illegally obtained evidence cannot be used at the trial of the defendant.” Griffin v. State, 347 Ark. 788, 793, 67 S.W.3d 582, 585 (2002).

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the United States Supreme Court fashioned a good-faith exception to the requirement of a valid warrant so that suppression of evidence would not be appropriate when a law enforcement officer acted in good-faith reliance on a facially valid warrant. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), provides the test for determining whether a warrant alleged to have such defects falls outside the Leon good-faith exception. Under Franks, a warrant should be invalidated if a defendant shows by a preponderance of the evidence that (1) the affidavit contained a false statement which | Bwas made knowingly, intentionally, or recklessly by the affiant, and (2) the false statement was necessary to a finding of probable cause. Id. at 155-56, 98 S.Ct. 2674. If those findings are made, the false material is excised and the remainder of the affidavit is examined to determine if probable cause exists. Id. If the truthful portion of the affidavit makes a sufficient showing of probable cause, the warrant will not be invalidated. Id.

The exclusionary rule does not apply to every criminal proceeding, and the general rule is that it does not apply to a revocation hearing. Queen v. State, 271 Ark. 929, 612 S.W.2d 95 (1981). At a revocation hearing, a court “may permit the introduction of any relevant evidence of the alleged violation, including a letter, affidavit, and other documentary evidence, regardless of its admissibility under the rules governing the admission of evidence in a criminal trial.” Ark.Code Ann. § 5-4-310(c)(2) (Repl.2006). We have stated, albeit in dicta, that the exclusionary rule does not apply strictly in a revocation proceeding, so long as the officers conducting the search acted in good faith. See Dabney v. State, 278 Ark. 375, 646 S.W.2d 4 (1983) (citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark.App.1980), and dicta in Schneider v. State, 269 Ark. 245, 599 S.W.2d 730 (1980)). While the Dabney court couched the exception in terms of “good faith,” it is clear that exception applies only in cases where there is “bad faith on the part of the police.” Dabney, 278 Ark. at 376, 646 S.W.2d at 4.

Today, we take the opportunity to hold, as we suggested by way of dicta in Dab-ney, that the exclusionary rule does not apply to revocation hearings unless the defendant ^demonstrates that the officers conducting the search acted in bad faith. We refer to the exception as a bad-faith exception so that it is not confused with the Leon good-faith exception, which has no application in revocation proceedings. Further, we make no distinction between the different types of revocation proceedings and hold that the bad-faith exception applies to all revocation proceedings.

In Dabney, the court perceived no bad faith on the part of the police where “it [did] not appear that the officers were primarily seeking revocation.” 278 Ark. at 377, 646 S.W.2d at 4. Other examples of bad faith include cases involving harassment by the police, United States v. Farmer, 512 F.2d 160 (6th Cir.1975), and official misconduct that shocks the conscience of the court, People v. Williams, 186 Colo. 72, 525 P.2d 463 (1974).

We now consider whether the bad-faith exception applies in the instant case. The circuit court found that there was no evidence before the court that the officers conducting the search were aware that Sherman was subject to a term of suspended imposition of sentence. Sherman does not challenge that finding. Further, there is no evidence that the officers conducted the search for the purpose of harassment. Nor is there evidence of official misconduct that shocks the conscience of the court. We hold that the circuit court did not err in concluding that the exclusionary rule was inapplicable at the revocation hearing. Sherman failed to demonstrate that the officers acted in bad faith. The circuit court did not err in denying Sherman’s motion to suppress.

Audio and Video Recordings

| ^Sherman next contends that the circuit court erred in denying his motion to suppress the audio and video recordings of cocaine deliveries in his revocation proceeding. He claims that, pursuant to article 2, section 15 of the Arkansas Constitution, the audio and video recordings should have been suppressed because a state actor obtained them inside his residence without a warrant.

The record reflects that a confidential informant purchased cocaine from Sherman inside his home and recorded the delivery transactions on November 3, 2006, December 5, 2006, and December 27, 2006. The December recordings were conditionally admitted, and the DVD was played as evidence to support the violations alleged in the revocation petition; a malfunction in the November recording prevented its admission. The circuit court concluded that, based on the reasoning in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), using an informant to enter and record illegal transactions violates neither the Fourth Amendment nor the Arkansas Constitution. Specifically, the circuit court found:

The defense, in the motion to suppress, contends that by these entries, by what I’m going to call a secret agent of the Blytheville Police Department, that violated his rights under the Fourth Amendment to the Constitution, Article Two, Section 15 [of the Arkansas Constitution],
Recognizing that the Arkansas Supreme Court has found that Article Two, |nSection Fifteen of the Arkansas Constitution provides more protection to the home than the Fourth Amendment, I have considered whether this conduct is prohibited by the Arkansas Constitution.
I cannot find any convincing reason or authority to suggest that the taping or transmitting of a conversation consented to by a party to the conversation, inside a suspect’s home, would violate the Arkansas Constitution, if the agent were legally present in the home. I can’t see any substantial difference in taping a conversation and simply reporting it.
I believe that our supreme court would follow the reasoning of Lewis. Even in view of greater protection our supreme court provides the home.
To rule otherwise would completely immunize illegal transactions occurring within a person’s home. Apart from the devastating impact on law enforcement efforts to investigate narcotics transactions, it only makes sense if a person uses their home as a commercial center, the activities conducted therein would be entitled to less protection.
Ultimately, the issue in search and seizure cases is the reasonableness of the conduct involved.
In that context, even if it’s deceitful and even if the person is a secret agent of the police and, which is not disclosed to the homeowner, then I find that that is a distinction that the Arkansas Court would make.

In Lewis, the Court held that the Fourth Amendment was not violated when an undercover officer entered a defendant’s home with consent, even though the consent was obtained by deception. The undercover narcotics officer misrepresented his identity to the defendant, stated his willingness to purchase narcotics, and was invited into the defendant’s home where an unlawful narcotics transaction was consummated. The Court wrote:

Without question, the home is accorded the full range of Fourth Amendment 1,.¿protections. See Amos v. United States, 255 U.S. 313 [41 S.Ct. 266, 65 L.Ed. 654] (1921); Harris v. United States, 331 U.S. 145, 151, n.15 [67 S.Ct. 1098, 91 L.Ed. 1399] (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Of course, this does not mean that, whenever entry is obtained by invitation and the locus is characterized as a place of business, an agent is authorized to conduct a general search for incriminating materials[.]

Lewis, 385 U.S. at 211, 87 S.Ct. 424.

In the instant case, Sherman invited the confidential informant and willingly allowed her to enter his home. There is nothing in the record to suggest that the informant, acting as an agent for the police, conducted a search for incriminating materials. Sherman invited the informant in for the purpose of conducting illegal business, in this case, purchasing cocaine. While inside the home, the informant made recordings of their transactions. The United States Supreme Court has held that the Fourth Amendment does not prohibit the warrantless use of undercover agents equipped with concealed devices to record conversations with suspects. See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

The question before this court is whether the admission of the recordings is prohibited under article 2, section 15 of the Arkansas Constitution. While the search- and-seizure language of article 2, section 15 of the Arkansas Constitution is very similar to the words of the Fourth Amendment, our constitution, state statutes, and criminal rules have clearly embraced a heightened privacy protection for citizens in their homes [ ^against unreasonable searches and seizures. State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004). We recognize that we lack authority to extend the protections of the Fourth Amendment beyond the holdings of the United States Supreme Court, but we do have the authority to impose greater restrictions on police activities based upon our own state law. Id. In the Bromi case, this court held that, although the Supreme Court has held that the Fourth Amendment does not require knowledge of the right to refuse consent as a prerequisite to a showing of voluntary consent, the failure of law enforcement officers to advise a defendant that he or she has the right to refuse consent to the search violates his or her rights as guaranteed by article 2, section 15 of the Arkansas Constitution. Id. Though it is clear that this court may deviate from federal precedent in providing greater protection against unreasonable searches and seizures, we only do so when such a deviation is justified. Our considerations in deciding whether to deviate from federal precedent were set forth in State v. Brown:

Without question, a slavish following of federal precedent would render this court’s opinions merely a mirror image of federal jurisprudence, which would carry with it a certain abrogation of our duty to interpret our own state constitution and follow our own state law. Yet, we admit to a concern about deviating too much from federal precedent based solely on our state constitution. A proper balance must be struck between the two.

Id. at 470, 156 S.W.3d at 729.

The State contends that Sherman has not shown through his reliance on recent Arkansas cases involving warrantless intrusions by coercive law-enforcement officers that 114this case, involving an invited illegal-business guest, and the “sanctity of the home” as preserved by the Arkansas Constitution, requires suppression of the recordings. This court, relying on United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), affirmed the admission of recordings of illegal transactions where the informant knew that the transactions were being recorded and helped with the documentation, while the defendant consented to none of it. See Hoback v. State, 286 Ark. 153, 689 S.W.2d 569 (1985). In Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980), this court agreed with the holding in White that “[o]ne contemplating illegal activities must realize the risk that his companions may be reporting to the police” and that there is no distinguishing “between probable informers on one hand and probable informers with transmitters on the other.” Id. at 543-44, 602 S.W.2d at 679 (quoting White, 401 U.S. at 752, 91 S.Ct. 1122). This court concluded that Smithey had no constitutional right to protection of taped conversations with informants and that the Arkansas Constitution “require[d] no different result.” Smithey, 269 Ark. at 544, 602 S.W.2d at 679. We recognize that Hobaek and Smithey were decided prior to the Broim decision, and we also note that these cases did not involve intrusions into the home.

We must determine whether, under the facts of this case, Sherman should be afforded more protection under our constitution than he is allowed under the federal constitution. We answer in the negative. In State v. Brown, we held that a home dweller must be advised of his or her right to refuse a request to consent to search in order to validate a consensual search under the Arkansas Constitution. The State points out that the Brown case differs |1Rfrom the instant case because in Brown, the home dweller thought she had no choice but to allow entry to three drug-task force officers, whereas, in the instant case, there was no coercion. Indeed, Sherman voluntarily consented to the informant’s entry into his home so that he could sell her illegal drugs. Further, while the Arkansas Constitution protects a person’s right to privacy in his or her home, in the instant case, Sherman’s home was not merely his home; rather, he had converted his home into a commercial center where unlawful business was transacted. In such cases, the heightened protection of privacy against unlawful intrusion into a citizen’s home that this court adopted in State v. Brown does not apply. Sherman invited the informant into his home to conduct the illegal transaction. Even though the transaction took place in his home, it was not reasonable for Sherman to believe that the person to whom he sold cocaine would not share the information with others. Moreover, as the State points out, Sherman has not shown any constitutional significance between the presence of the informant with eyes and ears open, the observations of whom can be written down and testified to in court, and the use of electronic surveillance to efficiently gather the exact same evidence. See White, supra. We hold that the circuit court did not err at the revocation hearing in denying Sherman’s motion to suppress the audio and video recordings of cocaine deliveries.

In sum, we hold that the circuit court did not err in denying Sherman’s motions to suppress. Under Arkansas Code Annotated section 5 — 4—309(d) (Repl. 2006), a circuit court may revoke a defendant’s suspended imposition of sentence at any time prior to thej^expiration of the period of suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension. In the revocation proceeding, the State had the burden of proving that Sherman violated the terms of his suspension as alleged in the petition by a preponderance of the evidence, and this court will not reverse that decision unless it is clearly against the preponderance of the evidence. See, e.g., Davis v. State, 368 Ark. 351, 246 S.W.3d 433 (2007).

Here, the State presented evidence that Sherman committed various new drug crimes. While Sherman challenged the admission of the evidence, he did not assert that the evidence was insufficient to support a revocation of his suspended imposition of sentence. Indeed, one of the terms of Sherman’s suspension was that he “not use, sell, distribute, or possess any controlled substance.” The State presented sufficient evidence of violations of his suspended imposition of sentence. The circuit court’s decision to revoke was not clearly against the preponderance of the evidence.

Affirmed.

      . As noted, infra, the circuit court ultimately granted Sherman’s motions to suppress evidence for the purpose of new criminal charges. While those rulings are not at issue on appeal, it is necessary to include the circuit court’s findings on those motions, as they are necessary to an understanding of Sherman's arguments on appeal.

      . While Sherman argued before the circuit court that the admission of the recordings was violative of both the Fourth Amendment and the Arkansas Constitution, he does not advance the Fourth Amendment argument on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2009 Ark. 279
    Robert Lee WILLIAMS a/k/a R.J. Williams, Appellant, v. STATE of Arkansas, Appellee.
    No. CR 08-356.
    Supreme Court of Arkansas.
    May 14, 2009.
    Cathleen V. Compton, for appellant.
    No response.
   PER CURIAM.

| ¡Appellant Robert Lee Williams appeals from his convictions for capital murder, residential burglary, and aggravated robbery and his sentence to life imprisonment without parole. Because his brief fails to comply with our rules, we order rebriefing.

Our addendum rule, provides, in pertinent part:

(8) Addendum. 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 ... 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. In the case of lengthy pleadings or documents, only relevant excerpts in context need to be included in the Addendum. 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. The Addendum shall include an index of its contents and shall also be clear where any item appearing in the Addendum can be found in the record. The appellee may prepare a supplemental Addendum if material on which the appellee relies is not in the appellant’s Addendum. Pursuant to subsection (c) below, the Clerk will refuse to accept an appellant’s brief if its Addendum does not contain the required order, judgment, decree, ruling, letter opinion, or administrative law judge’s opinion. The appellee’s brief shall only contain an Addendum to include an item which the appellant’s Addendum fails to include.

Ark. Sup. Ct. R. 4-2(a)(8) (2008). In addition, in life-imprisonment cases, such as this one,

the Court must review all errors prejudicial to the appellant in accordance with Ark.Code Ann. § 16-91-113(a). To make that review possible, the appellant must abstract, or include in the Addendum, as appropriate, all rulings adverse to him or her made by the circuit court on all objections, motions and requests made by either party, together with such parts of the record as are needed for an understanding of each adverse ruling. The Attorney General will make certain and certify that all of those objections have been abstracted, or included in the Addendum, and will brief all points argued by the appellant and any other points that appear to involve prejudicial error.

Ark. Sup. Ct. R. 4 — 3(h) (2008).

Rule 4 — 2(b)(3) sets forth the procedure to be followed when an appellant has failed to supply this court with an adequate brief:

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

Ark. Sup. Ct. R. 4-2(b)(3).

In reviewing Williams’s brief and record, we have found the following deficiencies in his brief, including, but certainly not limited to: (1) the failure to include the judgment and commitment order from which the appeal is taken, despite being given a seven-day extension to include the order; (2) the failure to include a timely notice of appeal; (3) the failure to include an evaluation cited to by Williams in his first point on appeal; and (4) the failure to include the circuit court’s letter opinion denying his motion in limine, which is the subject of his third point on appeal.

Because Williams has failed to comply with our rules, we order Williams to file a |4substituted brief, which complies with our rules, within fifteen days from the date of entry of this order. We further encourage appellate counsel, prior to filing the substituted brief, to review our rules and the appellant’s substituted brief to ensure that no additional deficiencies are present, as any subsequent rebriefing order in this criminal matter may result in referral to our Committee on Professional Conduct. See, e.g., Lee v. State, 375 Ark. 421, 291 S.W.3d 188 (2009).

Rebriefing ordered.

GUNTER, J., not participating.

      . Instead, appellant’s addendum contains an order denying transfer to juvenile court, which was previously appealed to the court of appeals and was affirmed in an unpublished opinion by that court. See Williams v. State, CA CR 05-1342, 2006 WL 2556389 (Ark.App. Sept. 6, 2006).

      . Instead, appellant’s addendum contains a notice of appeal and amended notice of appeal from the order denying transfer.

      . While appellant's argument cites to the report located on page 20 of the addendum as being that of Dr. DeYoub, that page contains a report by Dr. Charles Mallory, which only references Dr. DeYoub’s report. However, a report by Dr. DeYoub is contained in the record.


author:
DAVID M. GLOVER, Judge.
      HART, J., MARSHALL, J.,

text:
    2009 Ark. App. 283
    W.E. PENDER & SONS, INC., Appellant, v. Burton LEE, Appellee.
    No. CA 08-403.
    Court of Appeals of Arkansas.
    April 15, 2009.
    Rehearing Denied May 20, 2009.

      Kilpatrick, Williams, Smith & Meeks, LLP, by: Gene Williams, Little Rock, for appellant.
    Quattlebaum, Grooms, Tull & Burrow, PLLC, by: Steven W. Quattlebaum and Jennifer L. Wethington, Little Rock, for appellee.
   DAVID M. GLOVER, Judge.

11 During the installation of a water well at his rural residence, appellee, Bui'ton Lee, was injured when a fiberglass mat flew out from under a pipe truck driven by one of appellant’s employees, Jonathan McGinty. Lee brought a negligence action against appellant, W.E. Pender & Sons, Inc. d/b/a Acklin Drilling. The case was tried to a jury, which returned a verdict in favor of Pender & Sons. Lee filed a motion for new trial, asserting newly discovered evidence in the form of a post-trial letter and an alleged oral admission from McGinty as the basis. Following a hearing, the trial court granted the motion for new trial. This appeal followed, with Pender & Sons contending that 1) there was no newly discovered evidence; and, even if McGinty’s post-trial letter and alleged oral statement were “newly discovered evidence,” 2) it would be merely impeaching or cumulative; and 3) it would not have changed the result of the trial. Lee 12also filed a cross-appeal, contending that the trial court erred in excluding McGinty’s admission of fault, given during his deposition. On the direct appeal, we reverse the trial court’s grant of a new trial; on the cross-appeal, we affirm the exclusion of the testimony regarding fault.

Lee hired Pender & Sons to drill a well on his property. Pender & Sons placed fiberglass mats around the drilling site in order to provide traction for the heavy trucks that were used in the drilling. When the drilling was completed, McGinty began to back up the pipe truck; one of the fiberglass mats flew out from under the right-rear tire and struck Lee, injuring his leg. At trial, McGinty, called as a witness by Lee, testified in pertinent part:

At the time of the accident I got in the truck, waited for air pressure to build up for the brakes. I put my foot on the brake, released the air brakes, let out on the clutch real gently until I felt the transmission catch, and gently let off the brake so the truck wouldn’t roll forward, and started giving a little bit of acceleration, holding a steady accelerator, continuing to let out on the clutch, trying not to spin the tires, and one of the tires spun. The tire did not spin before the mat came out. There was no warning of a problem. The truck did not lurch. I did not gun the engine or race the motor. I had moved the truck like that in the past without problems. I had no reason to believe the mat would go out to the side of the truck. I had never heard of such a thing happening. I had driven the pipe truck before.

Although he testified that the truck did not move when he let the clutch out, when he was shown a photograph of the scene, he then stated that if the truck moved, he did not remember it. He agreed that one of Lee’s photograph exhibits “shows the truck appears to be directly over the well,” and that the bed of the truck could not have been directly | ;iover the well while they were drilling the well. Thus, he acknowledged that the truck had been moved.

Travis Acklin, testifying on behalf of Pender & Sons, stated that while he did not remember moving the truck at first, after looking at the photographs and seeing the well underneath the pipe truck, the pipe truck would had to have been moved approximately four to five feet. He said that they “must have backed the truck up one time before McGinty got back in it and backed it up again spinning the board out.” He explained that he motioned for McGinty “to come on back”; that McGinty began to accelerate gently and began to engage the clutch; and that as McGinty engaged the clutch, “in just a split second the wheels spun and kicked the mat out.” Acklin said that the mat flew “out to the side,” just above the ground, and struck Lee. He acknowledged that he could not see McGinty’s foot as he eased off the clutch; that the truck put a lot of velocity to the board; that he had never seen that happen before; that they “operated the truck the same way as we always did”; that McGinty “did not let the clutch out faster than I think he did” and that he could hear the sound of the engine pulling down as McGinty was gradually releasing the clutch; and that he was directing McGinty, motioning him to come back.

Lee testified on his own behalf at trial:

After the well was dug I used my tractor to pull the dirt away. I had just pulled my tractor around and parked it and got off of it. The pipe truck did not get moved during that time. There was absolutely not enough time for somebody to put a board right behind the front wheel before I got off my tractor and got hit.
|4I testified in my deposition that I couldn’t give a yes or no on whether they had just begun to back up the truck as I got off my tractor. I really don’t remember. I remember walking and getting off my tractor and walking around the front, and the next thing you know I’m on the ground.

Lee based his motion for a new trial on the following two items of “newly discovered evidence”: 1) Lee’s affidavit asserting an alleged post-trial oral admission by McGinty to Lee that McGinty “had ‘gunned’ the engine of the pipe truck when backing it out of the job site, which caused the rear wheel to spin and shoot the Mud-Traks board out from under it, causing [Lee’s] injuries”; 2) a written statement from McGinty in which he stated:

After seeing the pictures in court on the 28-29 of August and trying to remember what happened the day of the accident. My testimony on the dates above were not completely true. I stated that the pipe truck was never moved after the well was completed. That was not true. At the beginning of the trial I was told the pipe truck was never moved. I couldn’t remember so I assumed it wasn’t. The accident happened a little over four years ago. I gave my deposition nineteen months ago. In order for me to remember everything I said in my deposition or events that happened on the day of accident, I would’ve needed copies of the deposition and copies of the photographs. I had neither! In my opinion this is asking a lot from one person.

At the hearing on Lee’s motion, McGinty testified in part, “I never gunned the truck, but yes, I had to accelerate the truck to try to get it to move. [Lee’s] testimony about what I said on August 80 is not true. ... I did not tell him I lied about gunning the engine of the truck. I first learned yesterday afternoon he was saying I lied about gunning the engine of the truck.”

Direct Appeal

| BIn challenging the trial court’s grant of a new trial, Pender & Sons contends that the ruling should be reversed because 1) there was no new evidence about either the location of the truck or the “gunning” of the engine, and, even if the alleged oral statement by McGinty and his written statement were newly discovered evidence, 2) it would be merely impeaching or cumulative, and 3) it would not have changed the result of the trial.

Rule 59 of the Arkansas Rules of Civil Procedure provides in part:

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the claim on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party: ... (7) newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial [.]

(Emphasis added.) As our supreme court explained in Roetzel v. Brown, 321 Ark. 187, 190, 900 S.W.2d 185, 186 (1995):

Rule 59(a)(7) provides that a new trial may be granted on grounds of “newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.” A new trial based on newly discovered evidence is not favored. The decision to grant a new trial based on newly discovered evidence is a decision within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. At the hearing on the motion for new trial based on newly discovered evidence, the burden is on the moving party to establish he or she “could not with reasonable diligence have discovered and produced the evidence at the time of trial, that the evidence is not merely impeaching or cumulative, and that the additional testimony would probably have changed the result of the trial”

(Emphasis added & citations omitted.) Abuse of discretion is discretion improvidently exercised, i e., exercised thoughtlessly and without due consideration. Id.

| f,Accordingly, to establish his entitlement to a new trial, Lee had the burden of first proving that the evidence he was relying upon in support of his motion was truly “new,” ie., that he “could not with reasonable diligence have discovered and produced the evidence at the time of trial.” The two items of “new” evidence are McGinty’s post-trial written statement, which discussed the location of the truck, and his alleged oral statement to Lee that he had lied about gunning the engine (a statement which McGinty disputed making and about which he said nothing in his written statement). We are not convinced this evidence is properly categorized as “newly discovered.”

The written statement is a reiteration of testimony that McGinty provided at trial. Upon examining a photograph during his original trial testimony, McGinty acknowledged that he must have been mistaken about the truck not being moved because the photograph showed that it had been moved approximately four to five feet. His post-trial written statement adds nothing significant to his trial testimony. Likewise, the assertion in Lee’s affidavit of the alleged oral statement by McGinty that he had in fact “gunned” the engine was denied by McGinty, thus turning the statement’s very existence into a “he said/he said” dispute. In every single statement on the subject by McGinty, including his testimony at the motion hearing, he denied “gunning” the 17engine. This type of evidence could, with reasonable diligence, have been discovered and produced at the time of trial through cross-examination and other methods of attacking unfavorable testimony.

Even if we were to conclude that both McGinty’s post-trial letter and alleged oral statement were “newly discovered evidence,” Pender & Sons contends that it would be merely impeaching or cumulative. We agree.

At a retrial, with the addition of this “new evidence,” McGinty would presumably repeat what he had already acknowledged at the original trial, together with Acklin, that the truck had been moved approximately four or five feet — not during the injury episode, but prior to that incident. Thus, it is clear that McGinty’s written statement would be merely cumulative. In addition, at a retrial, McGinty would presumably continue to deny that he “gunned” the engine, and Lee’s testimony about McGinty’s alleged post-trial statement would be used to try to impeach McGinty’s testimony. Thus, this alleged oral statement would be merely impeaching.

| sAs explained in Roetzel, supra, even if evidence is new, if it is merely cumulative or impeaching, it does not satisfy a moving party’s burden of establishing that there is newly discovered evidence that would justify a new trial. That is the situation we have here. Accordingly, we hold that the trial court abused its discretion in granting Lee’s motion for a new trial. We have determined that Lee did not satisfy his burden of proving that the evidence he relied upon was truly newly discovered evidence that was not merely impeaching or cumulative.

In light of our holdings concerning Pen-der & Sons’ first two contentions, it is not necessary to address its third contention, i.e., that the evidence relied upon by Lee would not have changed the result of the trial.

Cross-Appeal

In his cross-appeal, Lee contends that the circuit court abused its discretion in excluding McGinty’s deposition testimony because it was substantial evidence of Pender & Sons’ liability. We disagree.

The trial court has broad discretion when it comes to the admissibility of |9evidence. Meins v. Meins, 93 Ark.App. 292, 218 S.W.3d 366 (2005). The appellate court will not reverse the lower court’s ruling on an evidentiary issue unless the appellant can show that the court abused its discretion. Id. In order to show abuse of discretion, the appellant must demonstrate that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Additionally, the appellate court will not reverse an evidentiary ruling absent a showing of prejudice. Id.

In his deposition, McGinty stated:

Q. And has Mr. Lee ever said to you whether this was or was not anyone’s fault?
A. Well, it was our fault.
Q. Okay. Did he ever say that to you?
A. I can’t remember. But I think he knew.
Q. Right. And that’s kinda why we’re here today, don’t you think?
A. Yes.
Q. Okay. And we can count on your testimony in that regard, that — .
A. (Affirmative nod).
Q. Okay.
A. Yes, ma’am.

After considering Pender & Sons’ motion in limine, the trial court excluded McGinty’s deposition testimony from the actual trial, reasoning that it invaded the jury’s province. | inWe find no abuse of discretion in the trial court’s exclusion of this evidence.

Rule 701 of the Arkansas Rules of Evidence provides:

Opinion testimony by lay witnesses.
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Our supreme court explained in Thompson v. Perkins, 322 Ark. 720, 724-25, 911 S.W.2d 582, 584-85 (1995):

We have said that Rule 701 is not a rule against conclusions; it is a rule conditionally favoring them. Carton v. Missouri Pac. R.R., 303 Ark. 568, 798 S.W.2d 674 (1990). In Carton v. Missouri Pac. R.R., we said:
[E]ven if the witness does have the requisite personal knowledge, any inferences or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’ ” If, however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. (Citations omitted.) Further, testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. A.R.E. Rule 704; Davlin v. State, 320 Ark. 624, 899 S.W.2d 451 (1995).
Here, appellant’s testimony regarding the right-of-way was based on observed facts provided in his testimony — the location of his motorcycle, the oncoming vehicles in the northbound lane, and the yield sign. His opinion that appellee had the right-of-ivay is one ivhich a normal person would \nform, on the basis of the facts observed, and his opinion testimony did not mmdate a legal conclusion. See Davlin v. State, supra; Carton v. Missouri Pac. R.R., supra. Finally, his opinion was helpful to the determination of a fact in issue, whether ap-pellee was negligent. Thus, the trial court did not abuse its discretion in admitting the testimony. See Scroggins[Scoggins] v. Southern Farmers’ Ass’n, 304 Ark. 426, 803 S.W.2d 515 (1991); see also Robinson v. Bump, 894 F.2d 758 (5th Cir.1990) (admission in negligence action of lay opinion that defendant was “in total control” of vehicle not an abuse of discretion); Young v. Illinois Cent. Gulf R. Co., 618 F.2d 332 (5th Cir.1980) (testimony from lay witnesses concerning their impression of condition of railroad crossing improperly excluded).

(Emphasis added.) The word “fault” is defined as:

1. An error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement. See Negligence. Cf. Liability. 2. Civil law. The intentional or negligent failure to maintain some standard of conduct when that failure results in harm to another person.

Black’s Law Dictionary 641 (8th ed. 2004).

Here, the trial court clearly regarded McGinty’s deposition testimony regarding “fault” as raising the possibility that it would mandate a legal conclusion, and therefore excluded it. We find no abuse of the trial court’s discretion in reaching that conclusion.

Reversed on direct appeal; affirmed on cross-appeal.

PITTMAN, ROBBINS, GRUBER, and HENRY, JJ., agree.

MARSHALL and BROWN, JJ., would affirm on direct appeal and on cross-appeal.

HART and BAKER, JJ., would affirm on direct appeal and reverse on cross-appeal.

HART, J.,

dissenting.

[ 12On direct appeal, the majority reverses the circuit court’s granting of a new trial to Burton Lee, holding that the court manifestly abused its discretion. On cross-appeal, the majority holds that the court did not abuse its discretion in excluding an admission of fault made by one of the employees of W.E. Pender & Sons, Inc. I disagree with both conclusions.

Direct Appeal. The grant of a new trial is reversed only if the circuit court clearly or manifestly abused its discretion by acting improvidently or thoughtlessly without due consideration. Carlew v. Wright, 356 Ark. 208, 148 S.W.3d 237 (2004). Here, the record reflects that the trial judge conducted a lengthy hearing in which he personally questioned the defense’s star witness, Jonathan McGinty, about McGinty’s revelation that his testimony at trial was inaccurate. Only then did the trial judge order a new trial. I submit it is impossible to assert that the trial judge ruled thoughtlessly without due consideration.

We may affirm the circuit court’s decision if there is a sound basis for the result reached by the court. Regions Bank v. Griffin, 364 Ark. 193, 217 S.W.3d 829 (2005). Rule 59(a) allows the granting of a new trial for “any irregularity in the proceeding ... by which the party was prevented from having a fair trial,” and when the jury’s verdict is “clearly contrary to the preponderance of the evidence.” Here, Lee was prevented from having a fair trial, and further, the verdict was clearly contrary to the evidence, so the court’s grant of a new trial should be affirmed.

113The majority acknowledges that McGinty testified at the hearing on the motion for new trial that his testimony at trial regarding the movement of the truck was inaccurate. Instead, he had relied on what he was told by others, either the person who witnessed the accident, or the owner of the company, or the company’s attorney. This evidence, and McGinty’s post-trial admission that he gunned the engine — which was contrary to his trial testimony — goes to the essence of the case: what happened when the accident occurred. The majority speculates that the presentation of truthful testimony rather than untruthful testimony about the movement of the truck would not have changed the result of the trial. This conclusion may be acceptable to the majority, but I doubt the presentation of untruthful testimony would be acceptable to a jury. Nor is it acceptable to this dissenting judge. This cannot be anything other than an irregularity that prevented a fair trial.

Furthermore, the verdict was clearly contrary to the evidence. A four-by-eight foot, 110 pound, fiberglass mat, designed to give traction in mud, spun out from underneath the right rear tire of the truck and struck Lee in the legs, causing him injury. McGinty testified at trial that he put his foot on the brake, released the air brakes, “real gently” released the clutch until he felt the transmission catch, “gently” released the brake so that the truck would not roll forward, gave the truck “a little bit” of acceleration, held “a steady accelerator,” and continued to release the clutch trying not to spin the tires.

| uThe majority and the jury have concluded that — contrary to the laws of physics' — a four-by-eight foot mat, weighing 110 pounds — without any appreciable force from a spinning tire — can be inexplicably ejected from underneath the dual wheel of a 23,000 pound single rear-axle truck, fly through the air several feet, careen into a tree, and still have sufficient force to ricochet in a different direction several feet and strike a bystander with enough force to break his leg. The only force that could have been applied came from the force generated by the driver accelerating the truck motor and increasing the torque of the truck wheel, a force exclusively controlled by McGinty. Although we may not be physicists, common sense dictates that the force necessary to propel this heavy mat through the air to effect this result was many times greater than that testified to by McGinty. Accordingly, I conclude that granting of a new trial was proper, as the jury’s verdict was clearly contrary to the evidence.

Cross-Appeal. Lee cross-appeals from a pre-trial ruling that excluded a statement made by McGinty during his deposition. During the deposition, McGinty was asked whether Lee had ever said to him whether or not the accident was or was not anyone’s fault. McGinty replied, “Well, it was our fault.” The court excluded McGinty’s statement, concluding that it “invades the province of the jury.” Lee argues that the circuit court abused its discretion in excluding this testimony.

Rule 701 provides that a lay witness’s testimony “in the form of opinions or inferences is limited to those opinions or inferences which are (1) Rationally based on |lflthe perception of the witness; and (2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.” Rule 701 is not a rule against conclusions; it is a rule conditionally favoring them. Thompson v. Perkins, 322 Ark. 720, 911 S.W.2d 582 (1995). Further, Rule 704 provides that “[tjestimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” But while opinion testimony may embrace the ultimate issue to be decided by the trier of fact, it cannot mandate a legal conclusion or tell the jury what to do. Marts v. State, 332 Ark. 628, 968 S.W.2d 41 (1998).

In concluding that the testimony on fault invaded the province of the jury, the circuit court failed to consider the applicable law. The court should have considered whether McGinty’s deposition testimony was based on his observed facts. Further, the court should have considered whether the statement would have been helpful and aided the jury in determining a fact in issue, that is, negligence, especially in light of the fact that McGinty testified that he used only “a little bit” of acceleration on the truck. Further, the court should have considered whether the testimony would have mandated a legal conclusion, that is, whether Pender was negligent. See Thompson, supra (holding there was no abuse of discretion in allowing testimony regarding the right-of-way in a motor-vehicle accident, as the testimony was based on observed facts, did not mandate a legal conclusion, and was helpful to the determination of a fact in issue).

With regard to the question of whether McGinty’s testimony on fault would have 11 (,mandated a legal conclusion, I observe that the jury was instructed that negligence means “the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do.” The jury was also instructed that a “failure to exercise ordinary care is negligence,” that “ordinary care” meant “the care a reasonably careful person would use,” and that it was for the jury “to decide how a reasonably careful person would act.” While the majority cites to Black’s Law Dictionary for the definition of “fault,” I do not see where in the record the jury was ever instructed that the term “fault” had any legal meaning, much less that it was the ultimate issue to be decided. Had McGinty, a fact witness, testified that he was negligent, then it would have been a closer question of whether he was testifying on the ultimate issue, as the jury was instructed on the definition of negligence. Gramling v. Jennings, 274 Ark. 346, 625 S.W.2d 463 (1981) (holding that it was error to allow expert witness testimony that the defendant was not negligent). But that was not the testimony before the circuit court. Thus, the court should have considered whether McGinty’s testimony on “fault” mandated a “legal” conclusion at all, whether it mandated a legal conclusion on negligence, and whether it told the jury that it had to find negligence.

Accordingly, I would affirm on the direct appeal and reverse on the cross-appeal.

BAKER, J., joins.

MARSHALL, J.,

dissenting.

Orders granting a new trial are as rare as hen’s 117teeth. Their rarity is reflected in the extraordinary deference we owe the circuit court in this situation. As our court recognizes, we review for an abuse of discretion. Among other things, discretion abused is discretion exercised thoughtlessly and without due consideration. E.g., Carlew v. Wright, 356 Ark. 208, 212, 148 S.W.3d 237, 240 (2004). Deferential in general, that standard of appellate review embodies a spectrum of more or less deference depending on the nature of the judgment call under review. Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747, 783-84 (1982). Our precedent reflects this truth. When, as here, the circuit court grants a new trial, it is and should be extraordinarily difficult to demonstrate an abuse of discretion. Carlew, 356 Ark. at 212, 148 S.W.3d at 240; Arkansas State Highway Commission v. Wood, 102 Ark.App. 348, 351, 285 S.W.3d 256, 259 (2008). Everyone will have another day in court. The important judicial interest in finality must give way to the more important judicial interest in truth.

Viewing the case through this lens, as we must, we should affirm on direct appeal. After trial, the parties briefed the newly-discovered-evidence issues. The circuit court received the briefs, held a hearing, and took testimony. The court examined the documentary evidence. The court observed the demeanor of Lee 118and McGinty under counsel’s questioning. The court questioned McGinty. And then the court decided, in light of all the material circumstances, that justice would be best served in this case by another trial. This record shows judicial discretion exercised carefully and thoughtfully, not discretion abused.

Our court has mastered this appeal as best we could from words on many pages. But we lack the feel for the case that comes from presiding over it. The deep question under Rule 59(a)(7) is whether the new evidence probably would have changed the trial’s result. Roetzel v. Brown, 321 Ark. 187, 190, 900 S.W.2d 185, 186 (1995). No clear and certain answer exists to questions such as this. It is a matter of judgment. We should therefore defer to the court best situated to make the best judgment call.

Our court concludes that the post-trial evidence was not really new. I disagree. At trial, McGinty was firm initially that the truck never moved after the accident. Confronted with photographs, he wavered a bit. After trial, however, McGinty was firm that the truck was moved. As the circuit court recognized, this was a change. On deposition, at trial, and after trial, McGinty said he never gunned the engine. But Lee testified that, after the trial, McGinty admitted gunning the engine. This alleged admission was new. And it was on the critical |19issue in the case: what caused the truck to sling the mat? Neither McGinty’s revised testimony about whether the truck moved or his alleged admission about gunning the engine could have been discovered before trial. Lee did all he could and should have done by taking a thorough deposition of McGinty.

The court concludes that, in any event, the changed truck-location testimony was cumulative to Acklin’s trial testimony, and thus will not support a new trial. Roetzel, 321 Ark. at 190, 900 S.W.2d at 186. If that were all there was to the matter, I might agree. But McGinty’s post-trial letter reflects that his truck-location testimony, which we now know was wrong, was schooled by someone on the morning of trial. The circuit court was rightly concerned about his circumstance, which in my view brings the matter outside the usual situation of merely cumulative new evidence.

The court further concludes that McGinty’s alleged “I gunned the engine” admission was merely impeaching evidence given his denial of it at the post-trial hearing. And thus, as impeachment, the alleged admission cannot support a new trial. Roetzel says this. 321 Ark. at 190, 900 S.W.2d at 186. Other cases do too. E.g., Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424, 428, 844 S.W.2d 337, 339 (1993); Rogers v. Frank Lyon Co., 253 Ark. 856, 861, 489 S.W.2d 506, 509 (1973). | aiBut these words are dicta, not holding, in the circumstances here. No Arkansas case — until today— holds that a circuit court abuses its discretion by granting a new trial based on newly discovered impeachment evidence. That should not be the law in every situation. Whether new impeaching evidence justifies a new trial should instead depend on the circumstances. Here, it was no abuse of discretion for the circuit court to conclude that this impeaching testimony was a bomb.

Why this mat flew out from under the truck’s wheel and hit Lee was the issue in this case. When the truck driver allegedly admits after trial that he gunned the truck’s engine, the disputed admission is not merely impeaching. It goes to the core of the lawsuit. And it should support the circuit court exercising its well-informed discretion to grant a new trial. Roetzel’s dicta should give way in the face of good reasons and common sense.

Joined by Judges Baker and Brown, I respectfully dissent on reversing the circuit court’s new-trial order.

      . Marshall, J., dissenting, interprets McGinty's trial testimony on truck movement to have "wavered a bit” when "confronted with photographs” and then states that McGinty gave "revised testimony” at the hearing on motion for new trial.

      . Notwithstanding similar references by both dissenters, neither the record nor the majority opinion contain any McGinty post-trial admission that he "gunned the engine.”

      . In fact, as part of its rationale for granting Lee a new trial, the trial court emphasized "impeachment purposes”:
      The Court: And as I recall, he changed his testimony. I’m not saying there was anything untoward. He changed his testimony between the time he took the deposition and the moment that he walked into the courthouse as I recall about that, Mr. Williams. It's a close call. I just think that the interests of justice are best served by utilizing the line of cases that say, I’m going to use my discretion, and we’re just going to try it all over again. And Mr. McGinty can say everything that he believed happened, and Mr. Lee can say what he says. Everybody’s got everybody’s prior testimony for impeachment purposes, and then the jury can just make a decision. Mr. McGinty now has an independent recollection that is significantly different, and I think the trier of fact needs to decide whether they think that makes a difference or not.
      (Emphasis added.)


author: JOSEPHINE LINKER HART, Judge.

text:
    2009 Ark. App. 275
    James McCUTCHEON, Appellant, v. Kathy McCUTCHEON (now Kougl), Appellee.
    No. CA 08-566.
    Court of Appeals of Arkansas.
    April 15, 2009.

      Clark & Spence, by: George R. Spence, Bentonville, for appellant.
    Keith, Miller, Butler, Schneider & Paw-lik, PLLC, by: Kristin L. Pawlik, Rogers, for appellee.
   JOSEPHINE LINKER HART, Judge.

| Appellant, James McCutcheon, appeals from the circuit court’s order finding him in contempt for failing to indemnify appel-lee, Kathy McCutcheon (now Kougl), as provided in the parties’ settlement agreement incorporated by reference into the parties’ divorce decree. Appellant argues that the court erred in holding him in contempt because the obligation was discharged in bankruptcy. We affirm the circuit court’s order.

On January 26, 2005, the parties entered into a settlement agreement providing in part that appellant would retain possession of a 2004 Honda TRX 450R Four Wheeler. Appellant agreed to be responsible for the debt on the vehicle, have it refinanced in his own | .¿name within sixty days, and hold appellee harmless for any debt on the vehicle. Further, the parties agreed “to keep the other free and harmless and indemnified of and from any and all debts, charges, or liabilities herein assumed by each.... ” Each party also agreed to pay the other’s legal expenses if the party wrongfully refused to comply with the agreement. The divorce decree was filed on January 28, 2005, and the decree incorporated by reference the settlement agreement.

On April 23, 2007, appellee filed in the circuit court a petition for contempt, alleging that appellant had failed to abide by the settlement agreement. The petition asserted that appellant had failed to refinance the Honda in his own name, that he had defaulted on the debt, and that the lienholder was seeking judgment against appellee.

At the December 4, 2007 hearing on the petition, exhibits admitted into evidence showed that on September 16, 2005, appellant filed a Chapter 7 voluntary petition for bankruptcy. Appellant listed the Honda as property subject to a purchase money security lien held by a bank, further listing appellee as a codebtor. Appellant, however, did not list appellee as a creditor. Appellant also signed a statement of intention to retain the Honda and make regular payments thereon. On December 20, 2005, appellant was granted a discharge. The discharge, however, did not indicate that appellant intended to make payments on the Honda.

At the hearing, appellee’s attorney noted that on July 22, 2007, a civil judgment in favor of the Honda lienholder was entered against her for $5025.94, costs of $186.08, | ¡¡attorney's fees of $503.59, and interest. Appellee sought an award for these amounts as well as her attorney fees in the civil judgment and in the contempt proceeding. Appellant argued that the Honda debt had been discharged in bankruptcy and that appellee was aware of the bankruptcy filing.

In its written order, the circuit court stated in part that the “bankruptcy proceeding did not discharge [appellant] from any obligation to [appellee].” The court noted that appellee was “not named as his creditor in the bankruptcy proceeding.” The court found appellant in contempt and ordered appellant to pay appellee the amounts listed above, as well as $300 in attorney fees that she expended in the civil judgment and $300 that she expended in the contempt proceeding. This appeal followed.

On appeal, appellant asserts that because he received a discharge in bankruptcy, the circuit court erred in ordering him to make payments to appellee. Appellant argues that the proper forum for challenging the discharge would have been in bankruptcy court. Appellant further observes that appellee was “clearly aware of the bankruptcy petition, as she helped pay the fee for it....”

Generally, under the statutes in effect at the time appellant filed bankruptcy, debts for spousal support and child support were not dischargeable. 11 U.S.C. § 523(a)(5). Other types of divorce-related debts, such as property settlements, were also not dis-chargeable unless the debtor could not afford to pay the debt or if the benefit to the debtor from discharging the debt outweighed the detriment to the other party. 11 U.S.C. § 523(a)(15). | ¿Further, a discharge did not discharge an individual debtor from any debt not listed or scheduled in time to permit,

(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request!.]

11 U.S.C. § 523(a)(3).

While appellant asserts that the circuit court did not have jurisdiction to determine whether a debt was discharged under section 523(a)(15), that is not the issue before the court. Here, the question on appeal involves section 523(a)(3) and concerns whether appellee “had notice or actual knowledge of the case.” Appellant further asserts that it “is not an issue in this case” whether appellee received notice, as appellee “had notice of the filing of the bankruptcy,” and thus the circuit court “was not determining whether the debt survived, but instead how far the discharge went,” which is “appropriately the provision of the Bankruptcy Court.”

We disagree with appellant’s assessment. The circuit court specifically found that the bankruptcy proceeding did not discharge appellant from any obligation to appellee, noting that appellee was not named as a creditor in the bankruptcy proceeding. Further, state and federal courts have concurrent jurisdiction to determine whether a debt survived bankruptcy because of the debtor’s failure to schedule or list the debt in the petition and the creditor’s |fifailure to obtain timely notice of the proceedings by other means. Heselton v. Maffei, 374 N.J.Super. 184, 863 A.2d 1100 (2005). The burden of establishing that a creditor received adequate notice rests with the debtor. Id.

In addressing whether she had notice or actual knowledge of the ease, appellee cites a factually similar case, Heselton. There, the issue was whether the ex-husband’s obligation to indemnify his ex-wife for any liability she might incur under a mortgage on the former marital home was discharged by his bankruptcy even though he only listed her as a codebtor and not as a creditor in his bankruptcy petition. The court concluded that the bankruptcy petition did not give the ex-wife reasonable notice that the indemnification obligation could be discharged in the bankruptcy proceeding, and therefore she could enforce the obligation notwithstanding the ex-husband’s bankruptcy.

The court observed that although the ex-wife received a copy of the petition and was listed as a codebtor, the petition did not list the indemnification obligation as a debt the ex-husband was seeking to discharge or identify the ex-wife as a creditor. The court concluded that the ex-husband’s bankruptcy petition did not afford the ex-wife reasonable notice that the indemnification obligation could be discharged in the bankruptcy proceeding. In reaching this conclusion, the court reasoned that the listing of the ex-wife as a codebtor did not give her reasonable notice that the ex-husband did not consider his indemnification obligation for that debt to be a component of his child-support obligation or in lieu of alimony and thus non-dischargeable under section 523(a)(5), but instead was some other |fikind of debt that was subject to discharge under section 523(a)(15). Moreover, the ex-husband’s failure to give adequate notice that he considered the indemnification obligation subject to discharge deprived her of the opportunity to present evidence and legal argument to the bankruptcy court relevant to whether this obligation satisfied one of the two alternative conditions of discharge-ability set forth in section 523(a)(15).

We acknowledge that appellee was listed as a codebtor and that appellee’s attorney stated in his argument before the circuit court that “[b]ack in September of 2005 [appellant] did cause to be filed a Chapter 7 voluntary petition for bankruptcy, and my client assisted in paying the filing and attorney fees for the petition. ...” Appellant, however, did not list the obligation as a debt he was seeking to discharge, nor did he identify her as a creditor. And most importantly, he signed a statement of intention to retain the Honda and make regular payments thereon. Together, these facts would have indicated to appellee that appellant was not seeking to discharge his obligations under the settlement agreement. Thus, like the ex-wife in Heselton, appellee was deprived of her opportunity to present evidence and legal argument to the bankruptcy court relevant to whether this obligation satisfied one of the two alternative conditions of discharge-ability set forth in section 523(a)(15).

Appellant further argues that Heselton is distinguishable because it involved payments that were characterized as alimony, that such debts are always non-dischargea-ble, and that state and federal courts have concurrent jurisdiction to determine whether the debt is in the |7nature of alimony and therefore non-dischargeable. Heselton, however, was not decided on the basis of whether the debt was in the nature of alimony. Rather, the case addressed whether the ex-wife had notice or actual knowledge of the case under section 523(a)(3). Accordingly, we affirm the circuit court’s decision.

Affirmed.

VAUGHT, C.J., and BROWN, J„ agree.

      . We also note that appellant filed a motion suggesting that the circuit court's order may not be final because of outstanding issues regarding a visitation schedule as well as telephone visitation for the minor child. That motion is moot, because the parties subsequently supplemented the record with an order showing that those issues were addressed. Further, the parties did not appeal from that order.


author: KAREN R. BAKER, Judge.

text:
    2009 Ark. App. 349
    Rafael BALLESTEROS, Appellant, v. TYSON POULTRY, INC. and Tynet Corporation, Appellees.
    No. CA 08-1390.
    Court of Appeals of Arkansas.
    April 29, 2009.

      Tolley & Brooks, P.A., by Evelyn E. Brooks, Fayetteville, for appellant.
    Ledbetter, Cogbill, Arnold & Harrison, LLP, by E. Diane Graham and Farrah L. Fielder, Fort Smith, for appellees.
   KAREN R. BAKER, Judge.

| j Appellant Rafael Ballesteros challenges the Workers’ Compensation Commission’s denial of benefits for a disputed period of time based upon the Commission’s finding that appellant had falsified a prescription by altering the prescription refill number from a 0 to a 3, and that falsifying “work documents” is a legitimate company policy under which altering the prescription justified appellant’s termination by appellees Tyson Poultry, Inc. and Tynet Corporation (Tyson). Appellant argues that Tyson had no reasonable cause for termination in that appellant was fired for an unproven, non-work-related criminal allegation. However, the focus of the reasonable-cause analysis is on the employer’s rightful expectations of appellant regarding the prescription and appellant’s willful disregard of the employer’s interest in the alteration of the prescription. The altered prescription was Indirectly related to the employer’s legal duty to compensate appellant for all reasonable and necessary medical treatment arising from a work-related injury. The employee’s alteration destroyed the integrity of the record and directly affected the evaluation of the employer’s fulfillment of its legal duty and business planning. Tyson had a right to expect appellant to respect the integrity of the claims process. Accordingly, we find no error and affirm.

Appellant was a forty-two-year-old man who began working for Tyson in July 1998. Over the years he performed various jobs. On June 25, 2006, he saw a water leak in a boiler room. After he and a supervisor closed the water valves, appellant pushed a button to start a pump in order to move the water. He felt a shock “all over” his body, momentarily lost consciousness, and struck his left knee as he fell. After regaining consciousness, he could not move his leg. Appellant testified that he was provided ice for his knee but not offered any additional medical treatment at that time.

Although appellant was not scheduled to work the next day, he went to the nurse at Tyson’s plant. As a result of that appointment, an evaluation by Dr. Moffitt was scheduled for June 27, 2006. Dr. Moffitt noted that appellant’s knee was swollen and indicated that he might have a displaced fracture of the distal femur. Because it was difficult to interpret the x-ray, Dr. Moffitt ordered a CT scan of the knee. Appellant was given crutches, medication, and advised to avoid weight bearing on his left extremity. Dr. Moffitt also indicated that appellant could return to work with Tyson with no weight bearing on his left leg. Appellant returned to work sitting in a chair in a control room monitoring | temperatures on a computer.

A CT scan performed on July 5, 2006, revealed a small amount of swelling, tripartite patella, and no acute fracture. Following the CT scan, appellant was evaluated by Dr. Berestnev on July 12, 2006, and diagnosed with a left medial collateral ligament strain. Exercises were recommended and appellant was advised to begin some weight bearing on the leg. He was also given a short knee immobilizer. Significantly for this analysis, Dr. Berestnev also prescribed pain medication. At the time Dr. Berestnev wrote the prescription, appellant was accompanied by his daughter, Jasmine Ballesteros. According to both appellant’s and his daughter’s testimony, appellant handed the prescription to his daughter and they drove to Walgreens to have it filled. Appellant stated that he turned in the prescription to the pharmacist at Walgreens and waited more than one hour without the prescription being filled. He explained that he was notified that a problem existed with the prescription and he was to contact his employer.

The prescription form in question contains a space next to the notation “Refills.” A “0” has an “X” marked through it with the numeral “3” written in. Dr. Berest-nev’s office indicated that the prescription had been altered and notified Tyson of the assessment. A registered nurse in the clinic with Dr. Berestnev testified that she received a phone call from the pharmacist at Walgreens regarding the suspicious prescription, then received a copy of the document in question by fax, and subsequently forwarded the altered prescription by fax to Tyson. She described the office procedure for altering a written prescription. The policy | ^specifically required shredding the original and writing out a replacement prescription. She also testified that she had never seen Dr. Moffitt or Dr. Berest-nev cross out something on a prescription, change it, and then give the prescription to a patient.

When appellant went to the Tyson plant later on July 12, he was given a three day suspension pursuant to company policy for the purpose of allowing him the opportunity to clear up the discrepancy with the prescription. After three days had passed, he was terminated for gross misconduct for falsifying a record. He did not work again until August 16, 2006, when he began employment with another company.

Appellant continued to receive medical treatment from Dr. Berestnev who ordered physical therapy and an MRI of appellant’s left knee. On August 24, 2006, Dr. Berestnev released appellant to full duty without restriction; however, on September 24, 2006, Dr. Moffitt indicated that appellant continued to have pain despite treatment with physical therapy and medication and referred appellant to Dr. Pleim-ann, an orthopaedist. Dr. Pleimann treated appellant for a period of time before referring him to Dr. Tom Coker for the purpose of determining whether further intervention was warranted. Dr. Coker subsequently recommended an arthroscopic procedure of the left knee, which was performed on February 27, 2007. Appellant reserved for consideration any issues with regard to compensation benefits beginning with the date of his surgery.

Tyson accepted appellant’s injury as compensable and paid some compensation benefits including medical treatment. In addition, Tyson began paying temporary total [^disability benefits at some point around the time of his surgery in February 2007. A majority of the Commission denied benefits beginning from appellant’s date of termination continuing through February 27, 2007, adopting the administrative law judge’s reasoning.

In reviewing a decision of the Workers’ Compensation Commission, we view the evidence and all reasonable inferences in the light most favorable to the Commission’s findings and affirm if supported by substantial evidence. Sally v. Service Master, 2009 Ark.App. 209, 301 S.W.3d 7. Substantial evidence exists if reasonable minds could have reached the same conclusion. Id. Matters of credibility are exclusively within the Commission’s domain. Id. We will not reverse the Commission’s decision unless we are convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Dorris v. Townsends of Ark., Inc., 93 Ark.App. 208, 218 S.W.3d 351 (2005).

Sufficient evidence supports the Commission’s determination that appellant altered the number of refills on the prescription. The nurse’s testimony established the doctor’s office procedure regarding the changing of a prescription, which required the shredding of any document that no longer reflected the accurate order and the office personnel’s strict adherence to that policy. She confirmed that the pharmacy reported the suspected change directly to the doctor’s office upon receipt of the prescription containing the alteration increasing the number of available refills. Although appellant denied changing the doctor’s order, discrepancies in the testimony are for the Commission to resolve. Sally, supra. We[ficannot say that fair minds could not have reached the finding that appellant was responsible for the change in the number of refills.

Neither can we find error in the Commission’s decision that appellant’s alteration of the prescription justified Tyson’s termination of appellant’s employment. Arkansas Code Annotated section 11-9-505 (Repl.2002 & Supp.2007) requires that to receive benefits an employee must prove the following by a preponderance of the evidence: (1) that he sustained a com-pensable injury; (2) that suitable employment which is within his physical and mental limitations is available with the employer; (3) that the employer has refused to return him to work; and (4) that the employer’s refusal to return him to work is without reasonable cause.

In the context of a workers’ compensation claim, a termination of employment amounts to a refusal to return an employee to work unless the employee was terminated for reasonable cause connected with the work. Roark v. Pocahontas Nursing & Rehab., 95 Ark.App. 176, 235 S.W.3d 527 (2006). In affirming a denial of unemployment benefits, this court has found that an employee’s failure to provide doctor’s orders explaining her work absences justified her termination resulting in the denial of unemployment benefits. Love v. Director, Ark. Employment Sec. Dep’t, 71 Ark.App. 396, 30 S.W.3d 750 (2000). The court reasoned that accurate information regarding the employee’s asserted medical excuses was necessary for the employer to properly plan for labor requirements:

In the case at bar, we conclude that Brentwood had a legitimate interest in information concerning when and if injured employees were excused from work by |7their treating physicians. Certainly such information was needed to properly plan for labor requirements. The intentional or deliberate failure to furnish such information was a willful disregard of the employer’s interest and of the standards of behavior that it had a right to expect of its employees. There was no substantial evidence in this case to support a finding that the failure to furnish this information was not intentional or deliberate. The decision of the Board of Review is, therefore, affirmed.

Love, 71 Ark.App. at 400, 30 S.W.3d at 752-53.

Tyson similarly had a legitimate interest concerning when and if injured employees were being treated by physicians with the prescription of medication and the length of time the employee would be under the influence of the medication. Accurate information regarding the employee’s injury and treatment is necessary to ensure the evaluation of the employee’s compensable claim, to determine whether the employer has work within the injured employee’s physical and mental limitations, as well as to ensure the employer’s compliance with safety on the worksite and its ability to properly plan for labor requirements.

Appellant argues that the prescription was not a work-production record and that personal medical treatment is not connected to the type of business that Tyson conducts; therefore, the prescription could not be considered a work record subject to the policy regarding falsification of work records. The argument is unpersuasive. Appellant obtained the prescription as a result of an injury he claimed was compen-sable pursuant to our workers’ compensation law. Our statutory framework places liability upon an employer for payment of all reasonable and necessary medical treatment, including medication. The alteration of the authorized refills falsifies a record that directly impacts the determination of the ^employer’s legal obligation to its employee in addition to the employer’s fulfillment of state law. Therefore, accurate records regarding appellant’s condition were necessary for both business planning of the day to day operations as well as for meeting statutory requirements. Accordingly, we find no error in the Commission’s decision and affirm.

Affirmed.

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


author: M. MICHAEL KINARD, Judge.

text:
    2009 Ark. App. 335
    Martha TAGGART, Appellant, v. MID AMERICA PACKAGING and Continental Casualty Company, Appellees.
    No. CA 08-1303.
    Court of Appeals of Arkansas.
    April 29, 2009.

      Kenneth E. Buckner, Pine Bluff, for appellant.
    Laser Law Firm, P.A., by: Frank B. Newell, Little Rock, for appellee.
   M. MICHAEL KINARD, Judge.

| ,In this workers’ compensation case, Martha Taggart appeals from the Commission’s decision awarding her wage-loss benefits in the amount of twenty percent. She raises two points on appeal: (1) The amount of wage-loss benefits awarded by the Commission is insufficient; (2) The Commission erred in reversing its original order awarding her attorney fees as the prevailing party on appeal. Because we find merit in appellant’s wage-loss argument, we reverse and remand the case for proceedings consistent with this opinion. We affirm on appellant’s second point.

Appellant Martha Taggart began working for the employer, which is now known as Delta Natural Kraft, in 1977 and was terminated in 2005. She held various positions with the employer over the years. On December 31, 2003, she was working as a senior | .¿boiler operator when she sustained injuries to her back and right knee as the result of tripping and falling over a drain cover. Appellant continued to work until May 2, 2004. Working as a boiler operator required, among other things, walking, climbing ladders and stairs, and occasionally shoveling, climbing on top of rail cars, and crawling inside of boilers.

Appellant saw several different doctors for the treatment of her injuries, and she was unable to obtain a release allowing her to return to work without restrictions. In a letter from her employer dated August 1, 2005, appellant’s employment was terminated because she had been on medical leave for over a year and the company did not have a job available within her physical limitations. In April 2005, appellant received a two-percent impairment rating for the lower right extremity from Dr. Mul-hollan. In August 2005, Dr. Moore assigned appellant a rating of seven-percent permanent partial impairment to the body as a whole for her lumbar spine injury, which he diagnosed as a lumbar HNP L3/4. Appellees accepted these impairment ratings, and appellant was paid some temporary total disability and permanent partial disability benefits.

At the time of appellant’s injury, she was earning $24.72 per hour and working a significant amount of overtime. Company records reflect that from June 6, 2003, through December 26, 2003, she earned $37,931.70. For the period from January 2, 2004, through June 11, 2004, she earned $29,789.37, for a total of $67,721.07 for the | ¡.period from June 6, 2003, through June 11, 2004. At the time of the hearing before the administrative law judge, appellant was studying for her associate’s degree and earning $5.15 per hour teaching children to read at a public elementary school. She worked twenty hours per week. She testified that she had applied for jobs with the Arkansas Department of Human Services and with Wal-Mart, without success. Her plan was to obtain a bachelor’s degree from the University of Arkansas at Pine Bluff and ultimately to obtain a master’s degree in social work. She testified that, according to her research, she could expect to make from $28,000 to $35,000 per year as a social worker. Additionally, appellant’s disability insurer provided a list of sedentary occupations that she would be capable of performing. The annual salaries for these jobs ranged from approximately $32,590 to $34,620.

Appellant had a functional capacity evaluation (FCE) on January 27, 2005. The report stated that appellant gave an unreliable effort, with her pain rating not correlating with her outward indicators of pain and her self-perceived abilities not correlating with her actual abilities. Overall, she demonstrated the ability to work at least at the “light” work category over the course of an eight-hour day. Appellant underwent a second FCE on June 20, 2005. The results again demonstrated an unreliable effort on appellant’s part, but the ability to perform work at least at the “light” category.

LThe issues litigated before the administrative law judge (ALJ) were appellant’s entitlement to additional temporary total disability benefits from April 25, 2005, through July 25, 2005, and appellant’s entitlement to wage-loss benefits. In an opinion filed August 8, 2007, the ALJ found that appellant was entitled to twenty-percent wage loss disability benefits as a result of her compensable low back injury over and above her physical permanent impairment. In explaining this finding, the ALJ wrote:

The claimant is only age 54 and has taken a number of college-level studies. She has completed 24 or more hours toward her degree in Social Work and intends to pursue a Master’s Degree. While her work history primarily involves industrial work, the preponderance of the evidence demonstrates that the claimant has reached maximum medical improvement and is capable of performing at least light duty work and should be able to secure steady employment. However, the evidence demonstrates that she will not be able to return to her prior work as a boiler operator or similar work due to the limitations and restrictions that have been placed on her due to her back injury by her treating physician. While the claimant is currently attending a full schedule of classes and working a part-time job, the evidence demonstrates that she will have difficulty in replacing her wages at the level before her injury.

In an opinion filed August 27, 2008, the Full Commission affirmed and adopted the AL J’s decision, with one Commissioner dissenting in part. When the Commission adopts the conclusions of the ALJ, as it is authorized to do, this court considers both the decision of the Commission and the decision of the ALJ. See Death & Perm. Total Disability Trust Fund v. Branum, 82 Ark.App. 338, 107 S.W.3d 876 (2003). Under our substantial-evidence standard of review, we must affirm if fair-minded persons with the same facts before them could have reached the Commission’s conclusion. Ellis v. J.D. & Billy Hines Trucking, Inc., 104 Ark.App. 118, 289 S.W.3d 497 (2008). For her first I..¡point on appeal, appellant argues that the award of twenty-percent wage loss is not supported by substantial evidence and that the award should have been higher. We agree.

The wage-loss factor is the extent to which a compensable injury has affected the claimant’s ability to earn a livelihood. Emerson Elec. v. Gaston, 75 Ark.App. 232, 58 S.W.3d 848 (2001). The Commission is charged with the duty of determining disability based upon a consideration of medical evidence and other matters affecting wage loss, such as the claimant’s age, education, and work experience. Eckhardt v. Willis Shaw Exp., Inc., 62 Ark.App. 224, 970 S.W.2d 316 (1998). Objective and measurable physical or mental findings, which are necessary to support a determination of “physical impairment” or anatomical disability, are not necessary to support a determination of wage-loss disability. Arkansas Methodist Hosp. v. Adams, 43 Ark.App. 1, 858 S.W.2d 125 (1993). To be entitled to any wage-loss disability benefit in excess of permanent-physical impairment, a claimant must first prove, by a preponderance of the evidence, that he or she sustained permanent-physical impairment as a result of a compensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). Other matters to be considered are motivation, post-injury income, credibility, demeanor, and a multitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); Curry v. Franklin Electric, 32 Ark.App. 168, 798 S.W.2d 130 (1990); City of Fayetteville v. Guess, 10 Ark.App. 313, 663 S.W.2d 946 (1984). The Commission may use its own | ({Superior knowledge of industrial demands, limitations, and requirements in conjunction with the evidence to determine wage-loss disability. Oller v. Champion Parts Rebuilders Inc., 5 Ark.App. 307, 635 S.W.2d 276 (1982).

In this ease, the ALJ appears to have considered many — but not all — of the relevant factors. In considering wage loss, the ALJ referenced appellant’s age, education, current job, future career plans, motivation to return to full-time employment, and her post-injury income. Significantly, appellant’s pre-injury income was not addressed beyond a general finding that appellant “will have difficulty in replacing her wages at the level before her injury.” The amount of appellant’s pre-injury wages was not contested. In the “Factual Background” section the ALJ states that at the time of her work-related injury, appellant was making $67,721.07 during the period from June 6, 2003, to June 11, 2004. It appears that the ALJ (and thus, the Commission) failed to properly consider these pre-injury earnings when determining the amount of appellant’s wage-loss disability. The evidence in the record clearly shows that the most appellant would be able to make as a social worker or in one of the sedentary jobs found by the disability insurer was $35,000 per year, an amount significantly less than appellant’s pre-injury earnings. While we acknowledge that there is no formula for determining wage loss, this record simply does not support a finding that appellant’s wage-loss disability was no more than twenty percent. We hold that substantial evidence does not support an award of only twenty-percent wage-loss disability. Accordingly, we reverse and remand this case for further 17proceedings consistent with this opinion, taking into consideration appellant’s wages during the period from June 6, 2003, to June 11, 2004.

As her second point on appeal, appellant argues that “the Commission’s decision to take away claimant’s attorney’s fee for being ‘successful’ on appeal should be reversed.” In its order filed August 27, 2008, the Full Commission not only affirmed and adopted the ALJ’s decision in this case, it also awarded appellant’s attorney an additional attorney’s fee in the amount of $500 in accordance with Ark. Code Ann. § 11 — 9—715(b) (Repl.2002), for prevailing in the appeal. Appellees filed a petition for reconsideration of the attorney’s fee award, alleging that the award was not merited because appellant did not prevail on appeal. In an opinion filed October 3, 2008, the Commission ordered that appellant’s attorney should not receive the $500 previously awarded.

Arkansas Code Annotated section 11 — 9— 715 (Repl.2002) provides, in pertinent part:

(b)(1) If the claimant prevails on appeal, the attorney for the claimant shall be entitled to an additional fee at the full commission and appellate court levels in addition to the fees provided in subdivision (a)(1) of this section.

Accordingly, the issue before this court is whether the Commission erred when it held that appellant (the claimant) did not prevail on appeal to the Full Commission and thus should not be awarded attorney fees. In this case, it was appellant who appealed to the Full Commission, which affirmed and adopted the opinion of the ALJ. Appellees (the respondents) did not cross-appeal any issue. Because we believe substantial evidence ^supports the Commission’s finding that appellant did not prevail on appeal to the Full Commission, we affirm on this point.

Reversed and remanded in part; affirmed in part.

ROBBINS and BAKER, JJ„ agree.

      . As a scheduled injury, appellant's knee injury does not give rise to wage-loss disability because it was not found to be permanently and totally disabling. See Ark.Code Ann. § 11-9-521 (Repl.2002); Taylor v. Pfeiffer Plumbing & Heating Co., 8 Ark.App. 144, 648 S.W.2d 526 (1983).

      . Appellant’s disability insurer, Jefferson Pilot Financial, paid her long-term disability from October 2004 through October 2006, when it determined that she did not meet the definition of "totally disabled” beyond her "own occupation period.” This was a policy that appellant purchased and paid for herself.