author: ANNABELLE CLINTON IMBER, Justice.

text:
    Tommy PHILLIPS v. STATE of Arkansas
    CR 00-992
    40 S.W.3d 778
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      William A. McLean, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   ANNABELLE CLINTON IMBER, Justice.

Appellant Tommy was convicted of capital murder and two counts of aggravated robbery in the Pulaski County Circuit Court. He was sentenced to life imprisonment without parole for capital murder, life imprisonment for one count of aggravated robbery, and a term of forty years for the second count of aggravated robbery. This is Mr. Phillips’s second appeal. In Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999), he appealed the denial of his motion to dismiss on double jeopardy grounds. We affirmed the trial court, holding that Mr. Phillips impliedly consented to the granting of a mistrial in his first trial when he failed to object to the mistrial that was clearly ordered for his benefit. Id. Mr. Phillips now appeals his conviction on retrial. For reversal, Mr. Phillips argues that there was insufficient evidence to connect him to the crimes, that the trial court should have suppressed the identifications made by the surviving victim because they were unreliable, and that the trial court erred when it allowed the introduction into evidence of a letter written by Mr. Phillips because the prejudicial effect of the letter outweighed its probative value. We find no error and affirm.

I. Sufficiency of the Evidence

For his first point on appeal, Mr. Phillips argues that the evidence connecting him to the crime was insufficient to support a conviction. Specifically, he argues that Carr Stalnaker, the surviving witness, was unable to strongly and reliably identify him as the perpetrator, that the testimony of Cory Caldwell that Mr. Phillips confessed his involvement in the crime was suspect and unreliable, and that the written confession made by Mr. Phillips in a letter to Mr. Caldwell was subject to more than one interpretation and was, therefore, unreliable. The State argues that Mr. Phillips’s challenge to the sufficiency of the evidence is no more than a challenge to the weight and credibility of the evidence and should be rejected. We agree.

As a threshold matter, we note that Mr. Phillips has preserved his challenge to the sufficiency of the evidence only as to the charge of capital murder. At the close of the State’s case-in-chief, Mr. Phillips moved for a directed verdict “on the charge of capital murder” because the evidence was insufficient to connect him to the crime. At the close of all evidence, Mr. Phillips renewed his motion “for the same factual and legal arguments made at that time.” Therefore, only the sufficiency of the evidence to support the conviction for capital murder is properly before us. See Woods v. State, 342 Ark. 89, 27 S.W.3d 367 (2000).

When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Evidence is substantial if, when viewed in the light most favorable to the State, it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. The credibility of witnesses is an issue for the jury and not the court. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). The trier of fact is free to believe all or part of any witness’s testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury’s determination only if the evidence did not meet the required standards, thereby leaving the jury to resort to speculation and conjecture in reaching its verdict. Fudge v. State, supra.

The evidence to convict Mr. Phillips was substantial. On the night of February 17, 1997, two men robbed the Freight Damaged Foods Store in Little Rock. The store closed at 6:00 p.m., at which time Carr Stalnaker, an employee of Frito-Lay, was stocking products on the shelves at the Freight Damaged Foods Store. He and the store’s assistant manager, Van Dean Clouse, were the only people remaining in the store when, at approximately 6:25, two men wearing bandanas and dark knit caps appeared and robbed the store. Mr. Stalnaker subsequently identified the two robbers as Appellant Tommy Phillips and Cochise Miles. Phillips and Miles held Stalnaker and Clouse at gunpoint during the robbery, then forced them into a cooler at the back of the store. While walking towards the cooler, Mr. Stalnaker heard Mr. Phillips saying repeatedly that “if there’s not any more money than this, somebody’s gonna die.” In an effort to appease Mr. Phillips, Mr. Stalnaker gave him all of the money he had from his delivery route.

After the four men entered the cooler near the back door, both Mr. Stalnaker and Mr. Clouse informed the robbers that they had families and asked the men to just leave with the money. Mr. Phillips told them to shut up, and then he repeatedly pointed his gun at Mr. Clouse’s head and lowered it. Mr. Stalnaker recognized that Mr. Phillips was “psyching himself up” to kill Mr. Clouse. Mr. Phillips eventually shot Mr. Clouse in the head. As soon as Mr. Stalnaker realized what had happened, he ran out of the cooler and through an open back door, escaping down an alley until he located a pay phone and called 911. The robbers shot at him several times as he was running away. While chasing Mr. Stalnaker down the alley, Mr. Phillips tripped and his handgun discharged, causing him to shoot himself in the arm. Phillips and Miles then ran through the woods to a nearby equipment rental business where Mr. Miles’s bandana and cap were discovered the following day, along with live 9mm and .22 caliber rounds similar to those found at the Freight Damaged Foods Store.

Following the robbery, Mr. Phillips called Cory Caldwell and asked him to come over to the house where he was staying. He informed Mr. Caldwell on the telephone that he had been shot. Upon arriving at the house, Mr. Caldwell noticed that the wound on Mr. Phillips’s arm appeared to be fresh. The next morning, Mr. Caldwell agreed to go to Texas with Mr. Phillips and his grandfather, Clayton Phillips. They left for Texas that same day. During the drive to Texas, Mr. Phillips admitted to Mr. Caldwell that he and Mr. Miles had committed a robbery and that he shot the store manager in the cooler because he only had “two hundred and something dollars on him at the time.” As related by Mr. Phillips to Mr. Caldwell, the “bread man” then ran out the back door, whereupon the robbers set out in pursuit of the man with Mr. Phillips shooting at him. Mr. Phillips tripped during the chase and his gun accidentally went off, striking him in the arm. After the “bread man” got away, Miles and Phillips kept running, jumped over a fence, and hid behind another building.

Mr. Phillips also sent a letter to Mr. Caldwell while in jail in which he admitted to killing Mr. Clouse, stating “I know I did murder that man.” Mr. Caldwell testified that he understood the letter to be an admission of guilt, even though Mr. Phillips argues that the context of the letter reveals that his intent was not to admit murder, but to entreat Mr. Caldwell to testify truthfully.

It is clear that substantial evidence supports the conviction of Mr. Phillips for capital murder. The State presented the testimony of an eyewitness who positively identified Mr. Phillips as the shooter and two confessions by Mr. Phillips. It was within the province of the jury to resolve any conflicts or inconsistencies in this evidence. Cobb v. State, supra. In light of the eyewitness identification and the confessions by Mr. Phillips, we cannot say the jury was forced to resort to speculation and conjecture to find Mr. Phillips guilty of capital murder. We, therefore, affirm the trial court’s refusal to direct a verdict of acquittal.

II. Eyewitness Identification

Mr. Phillips next challenges the trial court’s admission of the in-court and out-of-court identifications made by Carr Stalnaker, the surviving witness. Mr. Phillips argues that the identifications were not sufficiently reliable to be admitted. The State responds by arguing that we should not reach this argument because the threshold issue is not whether the identifications were reliable; rather, the threshold issue is whether there was a “very substantial likelihood of irreparable misidentification” in the pretrial identification and whether any suggestive line-up procedures employed by the State tainted either identification. Alternatively, the State argues that the trial court should be affirmed because, under the totality of the circumstances, the identifications do not fail the six-factor test for reliability. See Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998).

Normally the reliability of eyewitness identification of a defendant is a question for the jury. Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976). If it is not argued that the procedures leading to the identification were constitutionally infirm, it is up to the jury to determine whether the eyewitness identification is rehable. Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Synoground v. State, supra.

In this case, Mr. Phillips has asserted no constitutional infirmity in the eyewitness identification procedures. He argues only the reliability of the identification. In the absence of an allegation of suggestive procedures tainting the identification process, the reliability of Mr. Stalnaker’s identification of Mr. Phillips was a question for the jury. Consequently, we hold that the trial court did not err by refusing to suppress the identifications made by Mr. Stalnaker.

III. The Written Confession

For his final argument on appeal, Mr. Phillips asserts that the trial court erred when it allowed the introduction into evidence of a letter written by Mr. Phillips and sent to Cory Caldwell. He argues that the prejudicial effect of the confession contained within the letter far outweighed the letter’s probative value. According to Mr. Phillips, it is obvious from a review of the entire letter that the alleged confession contained within the letter could have been the result of a grammatical error rather than an actual confession. The State again argues that this is merely a challenge to the weight of the evidence, not its admissibility.

Rule 403 of the Arkansas Rules of Evidence provides that:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

We have repeatedly held that the balancing mandated by Rule 403 is a matter left to a trial court’s sound discretion, and thus, we will not reverse the court’s ruling absent a showing of manifest abuse. Mixon v. State, 330 Ark. 171, 954 S.W.2d 213 (1997) (citing Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996); Scott v. State, 325 Ark. 267, 924 S.W.2d 248 (1996)). Furthermore, when evidence of guilt is overwhelming, slight errors in the introduction of evidence do not constitute reversible error. Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997).

The letter written by Mr. Phillips to Mr. Caldwell states as follows:

What’s up Player? Yea, I know you wasn’t expecting this, but here I am. What’s been going on with you? Me, myself, I’ve been trying to maintain and keep my head high. I heard you was locked up — up state. I hate it for you, because this right here is not a place for a brother to be. I’ve been going throu (sic) some changes. And all of them haven’t been bad. I got to admitt (sic) I grew up in the county jail. I’ve learned some things in here that I wouldn’t have learned running the streets. For one I got my G.E.D. I have accomplished that since I’ve been in here. I have had time to think a lot of things out and try to find myself, because I was lost. I have found out about God. You know when we were in the streets that’s all we knew. When Slope got out the game and started saying he was hving for God we thought he was crazy. But now that I think about it we were the ones that were crazy. He saw something that we didn’t see. I saw your sister the other day when she came to see you. She stopped and talked to me. I heard that they want you to testify again. Corey I’m ready to come home. You can help me get there. I know they want you to testify and you can just tell them the truth. You and I know what happened. Gone (sic) and tell them that the prosecuting attorney and the detectives said that they were going to make a case on you if you didn’t get up there and tell them lies on me. Isn’t that what happened? Gone (sic) tell them that I didn’t tell you about a murder on the way to Texas. And that I didn’t tell you about a murder in front of Tina and my Grandma. Gone (sic) tell them that Denise didn’t take you over my house on the night of the murder. I wasn’t even there. Gone (sic) tell them that the detectives help you and Denis (sic) fabricate the story against me hoping to help yourself out and get a reward. Tell them that Denise lied on the stand last time. Gone (sic) tell them that you were drunk when you went in and the detectives got you to say all them things. Corey when I told you I wasn’t mad at you I wasn’t lying. I know you wouldn’t have did it they wouldn’t have threatned (sic) you. You and I are the tightest out of all the homeboys. Show me some love. I believe I have suffered long enough for my sins, but I know I did murder that man. If you are going to tell them what really happened don’t tell that prosecuting attorney because then she won’t let you testify. Just play along with her and when you get on the stand gone (sic) and tell them. Tell everybody I said what’s up. I’ll see you in that world. Let’s get ourselves together and make something out of our lives while we still can. We got people out there who still care about us. This is not the place to be.
I ain’t mad at you
/s/ T.J.

(Emphasis added.)

The trial court did not manifestly abuse its discretion by allowing the State to introduce this letter. The State argued to the jury that Mr. Phillips confessed to the robbery and the murder of Mr. Clouse by stating “I know I did murder that man.” An admission of guilt by the accused is relevant evidence of highly probative value. Although the letter is certainly open to more than one interpretation, as argued by Mr. Phillips, the fact that the letter could have a negative impact on him is insufficient to exclude it under Rule 403. In order for the letter to be excluded under Rule 403’s balancing test, the danger of unfair prejudice must substantially outweigh the probative value of the letter. Ark. R. Evid. 403. Counsel was free to argue an alternative interpretation of the letter to the jury in order to mitigate any prejudice; however, Rule 403 does not require the court to suppress evidence of guilt simply because it is open to interpretation. Whether the letter was in fact a confession was an issue for the jury to decide. We conclude that the trial court did not abuse its discretion when it declined to exclude the letter under Rule 403.

IV 4-3 (h)

The transcript of the record in this case has been reviewed in accordance with our Rule 4-3 (h) which requires, in cases in which there is a sentence to life imprisonment or death, that we review all prejudicial errors in accordance with Ark. Code Ann. § 16 — 91— 113(a). None have been found.

Affirmed.

       Although only the sufficiency of the evidence to support a conviction for capital murder is properly before us, we note that, as a practical matter, our holding in this case applies equally to the two aggravated robbery convictions. The challenge raised by Mr. Phillips in his motion for directed verdict was based upon an alleged lack of evidence to connect him to the crime, i.e. identity evidence. There is no dispute that the same individual who committed the aggravated robberies committed the capital murder. Therefore, if the evidence was sufficient to connect Mr. Phillips to the crime of capital murder, it was necessarily sufficient to connect him to the crimes of aggravated robbery.


source: Caselaw Access Project

author: Ray Thornton, Justice. Tom Glaze, Justice,

license: Public Domain

text:
    Sandra PALMER v. ARKANSAS COUNCIL on ECONOMIC EDUCATION, RPL Management Resources, Inc., Jim Glenn, Sonya Schmidt, and Polly Jackson
    00-333
    40 S.W.3d 784
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001
    [Petition for rehearing denied May 31, 2001.]

      Eichenbaum, Liles & Hester, P.A., by: James H. Penick, III, for appellant.

      Cross, Gunter, Witherspoon & Galchus, PC., by: Dona S. Galchus and Abraham W Bogoslavsky, for appellees.

      Wright, Lindsey & Jennings, by: Bettina E. Brownstein and William Stuart Jackson, for appellee RPL Management Resources, Inc.

       GLAZE, J., would grant. IMBER, J., not participating.

   Ray Thornton, Justice.

Appellant, Sandra B. Palmer, was employed with the Arkansas Council on Economic Education (“Council”) from October 11, 1965 until October 3, 1995, when sbe was terminated at fifty-four years of age by the Council’s acting chairman, Jim Glenn (“Chairman”), and its executive director, Sonya Schmidt (“Director”), with the approval of the assistant director, Polly Jackson (“Jackson”). The appellees include the Council, Chairman, Director, Jackson, and RPL Management Resources, Inc. (“RPL”), a human resources consulting firm hired by the Council. Upon termination, appellant brought an action against the Council for age discrimination under the Arkansas Public Employer Age Discrimination Act, Ark. Code Ann. §§ 21-3-201 to 21-3-205 (Repl. 1996). She also asserted common-law claims of wrongful discharge, tortious interference with employment relations, and the tort of outrage against all appellees. The trial court granted appellees’ summary-judgment motion, and we affirm.

I. Background

On October 11, 1965, appellant began working for the Council as an at-will employee and held the position of secretary. She eventually was promoted to administrative assistant for the Council. Appellant’s duties and responsibilities as the Council’s administrative assistant included maintaining the Council’s financial records, including certificates of deposit, depositing funds, handling various accounts, and working with the Council’s accountants to prepare financial statements. Appellant also prepared mailings for workshops and performed other related administrative tasks. During her thirty-year career before July of 1995, appellant was never disciplined for fading to properly perform any of her duties.

The Council is chartered with the State of Arkansas as a private, nonprofit corporation that was formed for the purpose of promoting economic education in elementary and secondary schools in Arkansas. The Council’s five employees are paid-by the Council rather than through the state payroll, and its employees are not entided to state benefits. The Arkansas Department of Education (“ADE”) exercises no control over the Council’s employees, and the Director of the Council is responsible for hiring and firing its employees.

The Council’s operations are subsidized through the use of the State’s postal services and telephone services, and beginning in 1979, the Council leased space in the Arch Ford Education Building. The Council’s yearly funding included a $200,000 state grant from the Department of Education’s budget and from workshops that are conducted at state universities. The Council also receives funding through local businesses and individuals. The Council’s annual revenues for 1995 aggregated $455,047.63.

The Council’s Director assumed her position on July 5, 1995. During the Director’s first staff meeting, appellant challenged the Director for disallowing a day off of work for appellant’s beauty shop appointment. On August 3, 1995, appellant confronted Jackson about a memo written several years earlier concerning appellant’s work performance. Jackson became upset over this confrontation and threatened to resign. During this time, appellant also voiced her concerns to the Chairman and the Director over their decision to deposit the Council’s state and private funds into one bank account.

On August 4, 1995, the Director placed appellant on probation, citing her for insubordination, specifically “lack of respect,” “no[t] buying into [the] new office culture,” and “¡lack of] mutual trust — no hidden agendas.” Before August 4, 1995, the Chairman retained the services of a human resources consultant, R. Landerville (“Landerville”) at RPL. On August 9, 1995, Landerville came to Little Rock to assist the Council in a review of its personnel policies, job descriptions, and general office procedures. On August 16, 1995, the Chairman and the Director specifically discussed with Landerville their employment problem with appellant. Landerville suggested various ways to handle appellant’s performance problems, and on August 25, 1995, appellant was removed from her probationary status.

After removing appellant from probation, the Director again encountered problems with appellant and informed the Chairman and Landerville that appellant undermined her authority, that she no longer trusted appellant, and that she did not feel comfortable being away from the office when appellant was there. On September 6, 1995, the Director recommended to the Chairman that the Council terminate appellant’s employment. The Chairman again asked for Landerville’s advice, and a memo documenting appellant’s performance was edited by the Director, the Chairman, and Landerville. Appellant was then terminated on October 3, 1995.

Following her termination, appellant filed a charge of age discrimination with the Equal Employment Opportunity Commission (“EEOC”). The EEOC issued a right-to-sue letter and found that the Council did not have the requisite number of employees for jurisdiction under the Age Discrimination in Employment Act (“ADEA”), pursuant to 29 U.S.C. §§ 621-634 (1994 and Supp. 1995, 1996, 1997, 1998). After receiving the right-to-sue letter, appellant brought suit in federal court against the Council, the ADE, and the State of Arkansas. The United States District Court for the Eastern District of Arkansas granted the Council’s motion to dismiss. Appellant appealed the decision to the Eighth Circuit Court of Appeals, and the case was affirmed. On appeal, the Eighth Circuit upheld the district court’s ruling that the Council was not an agency or instrumentality of the State of Arkansas.

Appellant filed the present lawsuit in state court, alleging that the Council had violated the Arkansas Public Employer Age Discrimination Act, Ark. Code Ann. §§ 21-3-201 to 21-3-205. Further, appellant alleged that the Director, Chairman, Jackson, and RPL interfered with a business relationship, and committed the tort of outrage. The Second Division of Pulaski County Circuit Court granted appellees’ motion for summary judgment. From this order, appellant brings her appeal.

II. Standard of review

Our standard of review for summary-judgment appeals was set forth in Crockett v. Essex Home, Inc., 341 Ark. 558, 19 S.W.3d 585 (2000), where we stated:

In these cases, we need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. All proof submitted must be viewed in a light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. Our rule states, and we have acknowledged, that summary judgment is proper when a claiming party fails to show that there is a genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law
Once a moving party establishes a prima facie entitlement to summary judgment by affidavits or other supporting documents or depositions, the opposing party must demonstrate a genuine issue of material fact by meeting proof with proof.
Furthermore, the moving party may present pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, to support the burden of showing entitlement to summary judgment as a matter of law.

Crockett, supra (quoting Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997)) (citations omitted); see also Ark. R. Civ. P. 56.

III. Wrongful-discharge claims

Our well-established rule is that when an employee’s employment is for an indefinite term, either party may terminate the relationship without cause or at-will. Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). We modified the employment-at-will doctrine to provide that where an at-will employee (one employed for an indefinite term) relies on a personnel manual or employment agreement that expressly states that he or she cannot be discharged except for cause, the employee may not be arbitrarily discharged in violation of such a provision. Id.

In Sterling, supra, we stated:

[W]e have no hesitancy in concluding that Arkansas law would recognize at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state.

Id. In Sterling, supra, we recognized the public-policy exception to the employment-at-will doctrine when we stated:

A[n] employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.

Id. (citations omitted). In finding a violation of public policy, we have stated that “it is generally recognized that the public policy of a state is found in its constitution and statutes.” Id.

Appellant contends that two areas of public policy under the Arkansas Age Discrimination Act and the Fiscal Responsibility Act support her claims for wrongful discharge. As her first allegation for wrongful discharge, appellant contends that the trial court erred in determining that the Council is not a “public employer” under the Arkansas Age Discrimination Act. She argues that the Council is a public employer, and therefore, the Council should be subject to the public policy against age discrimination as set forth in Ark. Code Ann. § 21-3-203, which prohibits a public employer from discriminating against an employee on the basis of his or her age. The statute provides:

(a) It shall be unlawful for a public employer:
(1) To fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of the individual’s age[.]

Id.

In making its ruling, the trial court relied upon Palmer v. Arkansas Council on Economic Education, 154 F.3d 892 (1998), where the Eighth Circuit held that the Council was a private employer within the definition of the Age Discrimination in Employment Act (“ADEA”) under 29 U.S.C. § 621-634. Palmer, supra. In answering the question, the court first addressed the issue whether the Council fit under the definition of employer under the act:

(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees. . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a state ...[.]

Id.

Because the Council did not have the requisite number of employees to qualify as an employer under the first part of the definition, the court then determined whether the Council qualified as “an agency or instrumentality of the ADE or the State of Arkansas.” Id.'Citing federal case law, the court held that the Council was neither an agency nor an instrumentality of ADE or the State of Arkansas. Id. The Eighth Circuit stated:

The facts of this case show that the ACEE is a private employer. The ACEE’s employees do not share in the ADE’s or state’s employee pension funds, and they are not subject to a common civil service employment or grievance policy. While Palmer has shown that the ACEE’s creation included the involvement of people closely tied to the ADE, she has not shown that either the State of Arkansas or the ADE ever controlled the terms of employment for the ACEE’s employees. Although the ADE provides significant funding for the ACEE, the ADE does so with the expectation of receiving value from the ACEE. The fact that the ADE and State of Arkansas rely on the ACEE to provide services to Arkansas’ citizens does not transform the ACEE into an agency of the ADE or State of Arkansas under the ADEA.

Id.

We are called upon to decide the same issue in this case. Under the Arkansas Age Discrimination Act, a threshold question is whether the Council qualifies as an agency of the State. Arkansas Code Annotated § 21-3-201 states:

For the purposes of this subchapter, unless the context otherwise requires, “public employer” shall mean any agency, department, board, commission, bureau, council, institution, or other entity of the state supported by appropriation of state or federal funds, or any county or municipality or other political subdivision of this state. “Public employer” specifically includes public universities, colleges, and public school districts.

Id.

Because the Eighth Circuit has already decided the issue whether the Council is an agency or instrumentality of the State, we first consider whether our review of the same issue in a dispute between the same parties is barred from appellate review under the doctrine of collateral estoppel. Collateral estoppel, or issue preclusion, bars relitigation of issues of law or fact previously litigated by the parties. Fairchild v. Norris, 317 Ark. 166, 876 S.W.2d 588 (1994). When an issue of fact or law is actually litigated and determined by a valid and final judgment and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties. Id. The elements of collateral estoppel are: (1) the issue sought to be precluded must be the same as tbat involved in the prior litigation; (2) the issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Fisher v. Jones, 311 Ark. 450, 844 S.W.2d 954 (1993). A federal court judgment may preclude relitigation of issues in state court. Scogin v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984).

We conclude that appellant is precluded under the doctrine of collateral estoppel from rearguing the issue whether the Council is an agency of the State, and consequently a “public employer.” Fairchild v. Norris, 314 Ark. 221, 861 S.W.2d 111 (1993) (per curiam) (holding that appellant cannot reassert the issue on appeal and is precluded from doing so under the doctrine of collateral estoppel). It follows that because the Council is not a “public employer,” the argument that appellant is entitled to the protection of Ark. Code Ann. § 21-3-203 must fail.

As her second allegation for wrongful discharge, appellant argues that she was wrongfully discharged from her employment with the Council as a matter of public policy because she voiced her concern over the Council’s placing both state and private funds in the same bank account. Specifically, appellant argued that the commingling of the funds is prohibited by the public policy of fiscal responsibility. In support of her argument, appellant cites the Fiscal Responsibility Act and general state accounting laws found at Ark. Code Ann. §§ 19-1-601 to 19-1-612 (Repl. 1998), Ark. Code Ann. §§ 19-4-101 to 19-4-2202 (Repl. 1998 and Supp. 1999), Ark. Code Ann. §§ 21-5-101 to 21-5-107 (Repl. 1996 and Supp. 1999), and Ark. Code Ann. §§ 21-5-201 to 21-5-219 (Repl. 1996 and Supp. 1999).

We have stated that an at-will employee cannot be terminated if he or she is fired in violation of a well-established public policy of the State under Counce, supra, but that such public policy must be outlined in our statutes. Appellant voiced her concern in a staff meeting over commingling state and private funds in the same bank account. She later testified:

There was talk at a staff meeting of depositing the state and private funds into the same account at a staff meeting. ... I tried to explain why we had never done that — because state grant money was subject to audit at any time .... [The Chairman] thought we should have one checkbook and put the monies together. I suggested to [him] to check with Senator Keet and Senator Russ because they would know where it was written and how it came about. I was terminated before I knew what happened.

In order to support her argument, appellant must offer statutory authority to show that her dispute with the Chairman is based upon a violation of the public policy of Arkansas. Based upon our standard of review in evaluating an order granting summary judgment under Crockett, supra, we cannot say that appellant has demonstrated a genuine issue of material fact by meeting proof with proof. Here, the argument fails because there are no state statutes, including those statutes cited by appellant, that prohibit an entity from combining state and private funds. Appellant conceded this point during her deposition. Because appellant has not demonstrated that she was wrongfully discharged because of her opposition to commingling state and private funds, we affirm on this point.

IV Tortious interference

For her next point on appeal, appellant argues that the Director, Chairman, Jackson, and RPL tortiously interfered with her business relationship with the Council. Under Arkansas law, a malicious and wilful interference with contractual rights and relationships of another has been recognized as an actionable tort. Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). In order to establish a claim for tortious interference with a contract, a plaintiff must establish (1) the existence of a valid contractual relationship; (2) knowledge of the relationship on the part of the third party; (3) intentional and improper interference by that third party inducing or causing a breach or termination of the relationship; and (4) resulting damage to the plaintiff. See Mason v. Wal-Mart Stores, Inc., 333 Ark. 3, 969 S.W.2d 160 (1998). We have also said that a successful claim for interference with a contractual relation must allege and prove that a third person did not enter into or failed to continue a contractual relationship with the claimant as a result of the unauthorized conduct of the defendant. Navorro-Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989).

An action for tortious interference with a contractual relationship is based upon a defendant’s conduct toward a third party. See Mason, supra. Here, it is undisputed that the Director, Chairman, and Jackson are employees of the Council and are not third parties for the purposes of appellant’s tortious interference claim.

Appellant also contends that RPL was a third party that tortiously interfered with her business relationship with the Council. We then must determine whether RPL is a third party. It is well settled that a party to a contract, and its agents acting in the scope of their authority, cannot be hable for interfering with the party’s own contract. St. Joseph’s Regional Health Center v. Munos, 326 Ark. 605, 934 S.W.2d 192 (1996) (agent acting within the scope of his authority on behalf of a contracting party was not a separate third party capable of tortious interference).

In the present case, the employment relationship was between appellant and the Council. However, Landerville, on behalf of RPL, acted as agent in the scope of his capacity as advisor to the Council on personnel matters. Landerville and RPL were hired by the Council, and provided consulting services to the Council. They were not third parties, but throughout the period beginning in August, 1995, the Council sought advice and consultation from RPL. It is clear that RPL acted as an agent for the Council. Therefore, RPL cannot be held liable for interfering with an employment relationship between appellant and the Council because it was an agent acting at the request of and on behalf of the Council. Accordingly, we affirm on this point.

V. Tort of outrage

As her third point on appeal, appellant alleges that appellees committed the tort of outrage with respect to her termination from the Council. We first recognized a cause of action for the tort of outrage in an employment setting in M.B.M. Co., Inc. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). In Givens v. Hixson, 275 Ark. 370, 631 S.W.2d 263 (1982), we cited the Restatement (Second) of Torts § 46 Cmt. d (1965), with approval when we stated, “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. Under the framework set forth in Counce, supra, we have outlined four elements that are necessary to establish liability for the tort of outrage:

1. The actor intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct;
2. The conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community”;
3. The actions of the defendant were the cause of the plaintiffs distress; and
4. The emotional distress sustained by the plaintiff was so severe that no reasonable [person] could be expected to endure it.

Dietsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992). The trial court must determine as a matter of law whether the conduct may reasonably be regarded as so outrageous as to permit recovery, id. Merely describing conduct as outrageous does not make it so. Id.

Applying these well-established principles to the present case, it is clear that appellant fails to state a claim for the tort of outrage. Appellant merely alleges that she disagreed with the Director and the Chairman over the use of the Council’s funds. She also alleges that she was improperly written up for performance problems, that she was improperly placed on probation, and that she was wrongfully terminated. Appellant fails to show the Council’s intent to inflict emotional distress, and her allegations do not meet the strict requirements in Dietsch, supra for a claim for tort of outrage in an employment termination situation. In order for appellant to prevail on this claim, she must have proven that her emotional distress was much more severe, that such conduct was “extreme and outrageous,” was “beyond all possible bounds of decency,” and was “utterly intolerable in a civilized community.” Id. The allegation made by appellant does not meet the requirements of Dietsch, supra.

Accordingly, we affirm the trial court’s grant of summary judgment.

Affirmed.

GLAZE, J., concurs in part; dissents in 'part.

Imber, J., not participating.

Tom Glaze, Justice,

concurring in part; dissenting in part. I concur with most of the majority court’s decision, but I disagree with the court’s holding that the doctrine of collateral estoppel applies to bar appellant Sandra Palmer’s arguing whether appellee Arkansas Council on Economic Education is a “public employee” as described under Ark. Code Ann. § 21-3-201 (Repl. 1996) of the Arkansas Public Employer Age Discrimination Act.

In Carter v. Owens-Illinois, Inc., 261 Ark. 728, 551 S.W.2d 209 (1977), we stated the following rule on collateral estoppel when identical cases have been filed in federal district court and state court:

Federal district courts and state courts are separate jurisdictions. Identical cases between the same parties can be pending in each court at the same time. (Citation omitted.) It is the same situation as if identical cases between the same parties were pending in different states. In such a situation, the first forum to dispose of the case by trial enters a judgment that is binding on the parties.

See also National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999); Scogin v. Tex-Ark Joist Co., 281 Ark. 175, 662 S.W.2d 819 (1984).

Here, the majority court misapplies the foregoing rule. The parties to the litigation were first in the federal courts where the Eighth Circuit ultimately held the Council was a “private employer” within the definition of the federal Age Discrimination in Employment Act (ADEA). Palmer v. Arkansas Council on Econ. Educ., 154 F.3d 892 (8th Cir. 1998). The ADEA, at 29 U.S.C.A. § 630(b), defines “employer” as follows:

. . . means a person engaged in an industry affecting commerce who has twenty or more employees .... The term also means (1) any agent of such a person, and (2) a state or political subdivision of a state and any agency or instrumentality of a state or a political subdivision of a state ....

Citing the federal case of Schaefer v. Transportation Media, Inc., 859 F.2d 1251 (7th Cir. 1988), the Eighth Circuit Court held that, to show that a defendant institution is an agency of a state or political subdivision of a state for ADEA purposes, a plaintiff must show that the state or political subdivision had some supervisory control over the plaintiff. (Emphasis added.)

The instant case involves the Arkansas Age Discrimination Act, not the ADEA, and for purposes of this state Act, a “public employer” is defined as an agency, . . . counsel, ... or other entity of the state supported by appropriation of state or federal funds, or any county of municipality or other political subdivision of this state. “Public employer” specifically includes public universities, colleges, and public school districts.

As can be readily seen, the term “employer” differs by definition and significance depending upon whether one is interpreting and applying either the ADEA or the state Age Discrimination Act. In short, Palmer’s suit in the federal courts is clearly not identical to the one Palmer now brings in the state courts involving a different act. Consequently, those federal decisions do not answer whether the council is, or is not, a public employer under the state Act, and collateral estoppel does not prevent Palmer from attempting to invoke that state Act. That specific legal issue is not addressed in this appeal.

While Palmer, in my opinion, is not precluded from arguing the Council is a public employer under the Arkansas Age Discrimination Act, she does not show how this might allow her a right of action under the state Act. As the trial court found in its order, granting the Council summary judgment, Palmer has failed to demonstrate where the language of that Act gives her a private right of action.

Nonetheless, Palmer asserts she has shown the Council is a public employer as defined under the Act because the Council’s budget is comprised of over 55% in monies from the Arkansas Department of Education, and because it also receives indirect subsidiaries through lease arrangements. In addition, she argues that evidence was presented which by inference showed the Council terminated Palmer because of her age. As a result, Palmer maintains she has an action for wrongful discharge because she was discharged in violation of the public policy of this state. That public policy, Palmer submits, is reflected by the terms set out in Ark. Code Ann. § 21-3-203(a)(i), which in relevant part reads: “It shall be unlawful for a public employer ... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of the individual’s age.”

Arkansas recognizes at least four exceptions to the at-will doctrine, excluding implied contracts and estoppel. These are: (1) cases in which the employee is discharged for refusing to violate a criminal statute; (2) cases in which the employee is discharged for exercising a statutory right; (3) cases in which the employee is discharged for complying with a statutory duty; and (4) cases in which employees are discharged in violation of the general public policy of the state. (Emphasis added.) Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). Our court has stated that it is generally recognized that the public policy of a state is found in its constitution and statutes. Id. In Sterling Drug, we held:

[A]n employer should not have an absolute and unfettered right to terminate an employee for an act done for the good of the public. Therefore, we hold that an at-will employee has a cause of action for wrongful discharge if he or she is fired in violation of a well-established public policy of the state. This is a limited exception to the employment-at-will doctrine. It is not meant to protect merely private or proprietary interests.

Although I agree with the majority opinion that the trial court was correct in granting the Council and the other appellees summary judgment regarding the claims of tortious interference and tort of outrage, I cannot agree that Palmer has failed to show material fact issues exist for a jury determination as to whether she was wrongfully discharged.

       For example, appellee RPL issued a letter to the Council’s chairman and director stating that before the Council could terminate an employee for age, it should insure the employee be given an opportunity to salvage her retirement and related benefits. RPL also stated that if Palmer filed a claim, she would likely win.


author: RAY THORNTON, Justice.

text:
    Eric Scott PIKE v. STATE of Arkansas
    CR 00-378
    40 S.W.3d 795
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      Norwood & Norwood, P.A., by: Doug Norwood, for appellant.

      Mark Pryor, Att’y Gen., by: James R. Gowen, Jr., Ass’t Att’y Gen., for appellee.
   RAY THORNTON, Justice.

Appellant, Eric Scott Pike, appeals the April 19, 1999, judgment of the Benton County Circuit Court, finding him in contempt for violation of the court’s orders and sentencing him to 150 days’ imprisonment in the Benton County Jail. Appellant raises two points for reversal: (1) the trial court erred in finding appellant in contempt of court because it lost jurisdiction to do so when it executed his sentence, and (2) even if the trial court did not lose jurisdiction to find appellant in contempt, the trial court erred in sentencing appellant to imprisonment in excess of the statutory maximum sentence. We agree with appellant’s first point and reverse.

On November 10, 1993, appellant, Eric Scott Pike, pled guilty to four counts of forgery, Class C felonies. Appellant’s plea was deferred under Act 346 of 1975, and he was placed on three years’ supervised probation.

On January 17, 1995, the State filed a petition for revocation of probation, alleging that appellant failed to report to his probation officer and failed to pay fines, fees, and costs. On January 30, 1995, the Benton County Circuit Court held a probation-revocation hearing based on these allegations. Appellant admitted the violations alleged in the State’s petition. The trial court found appellant in contempt of court and sentenced him to eighteen days in jail, with credit for eighteen days served. However, the trial court did not accept appellant’s initial guilty plea or revoke his Act 346 of 1975 status. The trial court also extended appellant’s probation by two years.

On October 8, 1996, the State filed a second petition for revocation of probation, alleging that appellant had (1) failed to report to his probation officer; (2) failed to pay fines, fees, and court costs; (3) tested positive for marijuana use on March 14, 1996; (4) admitted to using marijuana on April 15, 1996; and (5) failed to report a change of address to his probation officer. On September 4, 1997, the trial court held a second probation-revocation hearing based on these allegations. Appellant again admitted the violations alleged in the State’s petition for revocation of probation. Based on this admission, the trial court revoked his Act 346 of 1975 status, accepted his initial guilty plea on the charges of forgery, ordered him to pay the balance of $866.25 in fines, fees, and court costs, and found him in contempt of court, ordering him to serve 120 days in the Arkansas Department of Community Punishment’s Regional Punishment Facility. The trial court also extended appellant’s probation for another twenty-four months.

On June 5, 1998, the State filed a third petition for revocation of probation, alleging that appellant had failed to report to his probation officer and had failed to pay fines, fees, and court costs. On January 14, 1999, appellant filed a motion to dismiss the State’s third petition for revocation of probation, citing our decisions in McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998) and Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994). Appellant contended that the trial court had lost jurisdiction over him by entering its September 4, 1997, order that accepted his guilty plea, revoked his Act 346 of 1975 status, and executed his sentence by ordering him to pay the balance of $866.25 in fines, fees, and court costs. On April 12, 1999, the trial court denied appellant’s motion to dismiss. On April 19, 1999, the trial court held a third probation-revocation hearing based on allegations in the State’s third petition for revocation of probation. Appellant again admitted the violations alleged in the State’s petition. The trial court denied the State’s petition for revocation of probation, but found appellant in contempt for violating the conditions of his probation as alleged in the State’s third petition to revoke. The trial court sentenced appellant to 150 days in the Benton County Jail, but stayed the 150 days in jail so that appellant could file a petition for writ of prohibition in our court.

On August 9, 1999, appellant filed the petition for writ of prohibition in our court. On February 10, 2000, we denied appellant’s petition for writ of prohibition without prejudice to raise on direct appeal. Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).

Appellant appealed the trial court order to the Arkansas Court of Appeals, and on November 8, 2000, the court of appeals certified this case to us.

For his first argument on appeal, appellant argues that the trial court erred in finding him in contempt of court at the third revocation hearing because the trial court had lost jurisdiction over appellant after it executed his sentence at the second revocation hearing by accepting his guilty plea and ordering him to pay the balance of $866.25 in fines, fees, and court costs.

At the outset, we note that the State concedes that, if the question of jurisdiction can be addressed in this proceeding, the trial court lost jurisdiction. However, the State argues that although the trial court lost jurisdiction over appellant when it executed his sentence, appellant nevertheless had the obligation either to challenge the jurisdiction of the trial court as to the underlying order of probation by direct appeal or to abide by its terms, which, as the State points out, appellant did not do. The State further argues that appellant is not entitled to challenge the validity of the order underlying the contempt order because such a challenge would allow a defendant to willfully disobey a trial court’s orders based on a defendant’s own determination that the court lacked jurisdiction, regardless of the merits of his or her jurisdictional claim.

While this argument is generally correct, we disagree that it is applicable to the circumstances of this case. The validity of this argument depends upon the answer to the question whether the order underlying the finding of contempt was void, thereby depriving the trial court of subject-matter jurisdiction, or whether it was only voidable for error or other irregularity.

In determining whether one may be held in contempt for violating a court order, a distinction must be made between erroneous and void orders. In Etoch v. State, 332 Ark. 83, 964 S.W.2d 798 (1998), we stated that the fact that a decree was erroneous would not excuse disobedience on the part of those bound by its terms until the order was reversed. Id. (citing Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906)). We further stated that where the contemnor merely refused to comply -with an order that was clearly within the court’s jurisdiction and power, we will not look behind that order. Id. (citing Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993)).; see also Ark. Code Ann. § 16-10-108(a)(3) & (4) (Repl. 1999).

Our own holdings on this issue are harmonious with the general rule, stated in 17 Am.Jur.2d Contempt § 147 (2000), as follows:

Where the court has jurisdiction over the subject matter and the parties and has the authority to render a particular order or decree, the fact that such order or decree is erroneous or irregular or improvidently rendered does not justify a person in fading to abide by its terms; failure to obey the order may be punished as contempt despite the error or irregularity.

Id.

Conversely, if the trial court lacks subject-matter jurisdiction, an attempt to make a further order in the case is void for lack of jurisdiction, and the issue of subject-matter jurisdiction can be raised at any time. For example, in Leonard v. State, 170 Ark. 41, 278 S.W. 654 (1926), we quoted approvingly from Martin v. State, 162 Ark. 282, 257 S.W. 752 (1924), where we stated, “ ‘This court is committed to the doctrine that one cannot be held in contempt for disregarding a void order or judgment.’ ” We further stated, “ ‘It is a good defense to an application to punish for a contempt that the order or direction charged to have been disobeyed or violated was made without authority or jurisdiction.’ ” Leonard, supra (citation omitted).

Although appellant did not raise the question of validity of the extension of probation at the second hearing, it was not necessary that he do so. In Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989), we stated that a trial court loses jurisdiction to modify or amend the original sentence, once a valid sentence is put into execution. Id. (citing Toney v. State, 294 Ark. 473, 743 S.W.2d 816 (1988); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987)). In Jones, supra, appellant did not raise the question of the validity of a subsequent sentence to the trial court, but appealed, contending that the trial court acted beyond its authority in imposing the second sentence. Id. We concluded that the trial court had acted beyond its authority and reversed, stating:

Although appellant did not object in the trial court, she need not have done so. The trial court’s loss of jurisdiction over a defendant “is always open, cannot be waived, can be questioned for the first time on appeal, and can even be raised by this court.”

Id. (citing Lambert v. State, 286 Ark. 408, 692 S.W.2d 238 (1985); Coones v. State, 280 Ark. 321, 657 S.W.2d 553 (1983)).

Our decisions on this point remain harmonious with the general principles articulated in 17 Am.Jur.2d Contempt § 148 (2000), where it is stated that “a court cannot punish as contempt violation of an order beyond the court’s power or jurisdiction. Consequently, it is said to be no contempt to disobey a void order.” Id. This provision of American Jurisprudence Second continues by stating that “lack of jurisdiction or power of the court to make the order allegedly violated may be raised on appeal from a judgment of conviction for contempt.” Id.

We have made it clear that a trial court loses jurisdiction to modify or amend an original sentence once a valid sentence is put into execution. E.g., McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998); Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994); DeHart v. State, 312 Ark. 323, 849 S.W.2d 497 (1993); Jones v. State, 297 Ark. 485, 763 S.W.2d 81 (1989). We have also held that a plea of guilty, coupled with a fine and either probation or a suspended imposition of sentence, constitutes a conviction, thereby depriving the trial court of jurisdiction to amend or modify a sentence that has been executed. McGhee, supra; Harmon, supra; Jones, supra.

In McGhee, supra, the State urged us to overrule Harmon, supra, but we declined to do so and reversed the trial court, adhering to our long-standing case law, which holds that a plea of guüty, coupled with a fine and a suspension of imposition of sentence of imprisonment, constitutes a conviction, and that, therefore, the court loses power to modify the original order. McGhee, supra (citing Jones, supra).

Similarly, in the present case, by the time of the third revocation hearing, the trial court had lost subject-matter jurisdiction to modify the sentence that had already been executed by the trial court’s actions in revoking appellant’s Act 346 of 1975 status, accepting his guilty plea, and ordering him to pay the balance of $866.25 in fines, fees, and court costs.

Because the trial court lost subject-matter jurisdiction over appellant once it executed his sentence at the second hearing, we conclude that the trial court had no authority or jurisdiction either to extend probation or to hold the third probation-revocation hearing. We hold that a court cannot punish as contempt a violation of an order that is void because the court lacked subject-matter jurisdiction to enter it. Accordingly, we reverse and dismiss.

Because we agree with appellant’s first point for reversal, we do not reach his second argument.

Reversed and dismissed.

       Act 346 of 1975, which is codified at Ark. Code Ann. § 16-93-303 (1987), provides, in relevant part:
      (a)(1)(A) Whenever an accused enters a plea of guilty or nolo contendere prior to an adjudication of guilt, the judge of the circuit or municipal court, criminal or traffic division, in the case of a defendant who has not been previously convicted of a felony, without entering a judgment of guilt and with the consent of the defendant, may defer further proceedings and place the defendant on probation for a period of not less than one (1) year, under such terms and conditions as may be set by the court.
      * * *
      (2) Upon violation of a term or condition, the court may enter an adjudication of guilt and proceed as otherwise provided.

        Id.

       Ark. Code Ann. § 16-10-108(a)(3) & (4) provides, in relevant part:
      (a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others:
      * * *

        (3) Willful disobedience of any process or order lawfully issued or made by it;
      (4) Resistance, willfully offered, by any person to the lawful order or process of the court....

        Id. (emphasis added).]


author: PER CURIAM.

text:
    Ricky FLEWELLEN v. STATE of Arkansas
    CR 01-355
    42 S.W.3d 406
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      Don Etherly, for appellant.
    No response.
   PER CURIAM.

Don Etherly, a state-salaried, part-time public defender for the First Judicial District was appointed by the trial court to represent appellant Ricky Flewellen, an indigent defendant, in this criminal case. Flewellen’s suspended sentence for the charge of robbery was revoked and he was sentenced to twenty years in the Arkansas Department of Correction. A notice of appeal from the judgment of conviction was timely filed, and a partial record has been lodged with our clerk.

Mr. Etherly now asks this court to relieve him as counsel for Mr. Flewellen and to appoint new counsel for Flewellen in this criminal appeal. In support of his motion to be relieved, Mr. Etherly asserts that as a public defender he should be allowed to withdraw. We note that Mr. Etherly will not be compensated by the Arkansas Public Defender Commission for work performed in the appeal of this matter. Under these circumstances, we grant Mr. Etherly’s motion to be relieved for good cause shown. See Tester v. State, 341 Ark. 28b, 16 S.W.3d 227 (2000) (per curiam). John W Yeargan, will be substituted as attorney for appellant Ricky Flewellen.

Granted.


author: Per Curiam.

text:
    Wayne FULCHER v. STATE of Arkansas
    CR 01-353
    42 S.W.3d 406
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      Dan Etherly, for appeEant.
    No response.
   Per Curiam.

Don Etherly, a state-salaried, part-time public defender for the First Judicial District, was appointed by the trial court to represent appellant Wayne Fulcher, an indigent defendant, in this criminal case. Following a revocation hearing on February 9, 2001, the circuit court revoked a suspended imposition of sentence on a charge of theft of property and sentenced Mr. Fulcher to ten years in the Arkansas Department of Correction. A notice of appeal from the judgment of conviction was timely filed and a partial record has been lodged with our clerk.

Mr. Etherly now asks this court to reheve him as counsel for Mr. Fulcher in this criminal appeal. As a state-salaried, part-time public defender for the First Judicial District, Mr. Etherly is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Etherly’s motion to be relieved for good cause shown. Kelly Adkins will be substituted as attorney for appellant Wayne Fulcher in this matter.


author: PER Curiam.

text:
    Marlon Donte HOWELL v. STATE of Arkansas
    CR 01-349
    40 S.W.3d 800
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      Danny P. Rodgers, for appellant.
    No response.
   PER Curiam.

Danny P. Rodgers, a state-salaried, full-time Managing Public Defender for the Eighth Judicial District North, was appointed by the trial court to represent appellant Marlon Donte Howell, an indigent defendant, in this criminal case. Following a trial by jury, Howell was convicted and sentenced to life imprisonment without the possibility of parole. A notice of appeal from the judgment was timely filed, and a partial record has been lodged with our clerk.

Mr. Rodgers now asks this court to relieve him as counsel for Howell in this appeal. As a state-salaried, full-time Managing Public Defender for the Eighth Judicial District North, Mr. Rodgers is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our recent opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark. 61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Rodgers’s motion to be relieved for good cause shown. Linda Scribner will be substituted as attorney for appellant Marlon Donte Howell in this matter.


text:
    IN RE: Carl Fredrick MOYER (Arkansas Bar ID # 90067)
    01-14
    40 S.W.3d 794
    Supreme Court of Arkansas
    Opinion delivered April 19, 2001

      Lynn Williams, for petitioner.

      Carl Fredrick Mayer, pro se.
   PER CURIAM.

This is an original action brought by the Supreme Court Committee on Professional Conduct. We previously granted the Committee’s petition and ordered Mr. Moyer to appear before this court on March 8, 2001, and show cause why he should not be held in contempt. See In Re: Moyer, 343 Ark. 768, 37 S.W.3d 618 (2001) (per curiam). Mr. Moyer was served with notice of the hearing, and he contacted our court clerk by telephone on March 7, to ask for a continuance. He informed our clerk that he would be available on March 22, 2001, and he left a telephone number where he could be reached. We subsequently granted the continuance and instructed him to appear on March 22.

The Arkansas State Police attempted to serve Mr. Moyer with notice of the March 22 hearing, but to no avail. Information was received by our court clerk that Mr. Moyer had moved from his last-known address and had disconnected his telephone. Hence, we issued a second opinion ordering him to appear on April 5, 2001. See In Re: Moyer, 344 Ark. 350, 40 S.W.3d 314 (2001) (per curiam). We further instructed that service be attempted by mad to Mr. Moyer’s address that was currently on record with our court clerk, as is required under Section 5E(2)(a) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law.

Mr. Moyer did not appear as scheduled on April 5. The Committee’s attorney, Lynn Williams, appeared and informed this court that Mr. Moyer had not yet been served with notice of that hearing date. Mr. Williams verified, however, that service had been attempted, as instructed by this court, by certified, restricted delivery, return-receipt mail, pursuant to Section 5E(2)(a). Mr. Williams indicated that Mr. Moyer cannot be found and that he has not informed this court’s clerk of his current address, as he is required to do. See Hogue v. Neal, 340 Ark. 250, 12 S.W.3d 186 (2000) (per curiam). To date, there is no indication that Mr. Moyer has signed for the certified mail or returned the receipt as requested.

Accordingly, we- hereby issue a third order, this time for the State Pofice to take immediate custody of Mr. Moyer and bring him before this court for failing to comply with this court’s show-cause order.

It is so ordered.


author: W.H. “Dub” Arnold, Chief Justice.

text:
    FAYETTEVILLE DIAGNOSTIC CLINIC, LTD. v. Dyanna TURNER
    00-1285
    42 S.W.3d 420
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001

      Bassett Law Firm, by: Cutis L. Nebben and Vince Chadick, for appellant.

      Harry McDermott, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

This is a slip-and-fall case. It arises out of an injury Dyanna Turner, appellee, sustained while on the premises of appellant, Fayetteville Diagnostic Clinic (FDC), on December 18, 1995. Turner sued FDC in tort to recover damages. At the close of a one-day trial, the jury found FDC negligent and returned a $48,703 judgment. FDC then filed a motion for judgment notwithstanding the verdict (JNOV), a motion for remittitur, and a motion for a new trial, all of which were denied by order of the trial judge. FDC argues on appeal that there was insufficient evidence to support the verdict. FDC also argues, in the alternative, that the amount of the award is contrary to the preponderance of the evidence. We disagree and affirm.

The Arkansas Court of Appeals, in a 4-2 decision, reversed and remanded the case to the trial court, holding that there was not substantial evidence from which the jury could have inferred that FDC was negligent. Fayetteville Diagnostic v. Turner, 71 Ark. App. 259, 29 S.W.3d 773 (2000). Appellee Dyanna Turner then petitioned this Court for review, contending that the Court of Appeals’ decision is in direct conflict with prior holdings of this Court, in that the majority of the Court of Appeals refosed to review the evidence in the light most favorable to the appellee and give the evidence it highest probative value in favor of the jury verdict, thereby ignoring the proper standard of review. Our jurisdiction is proper pursuant to Ark. Sup. Ct. R. 1-2(e) (ii). We agree with appellee and affirm the trial court, thereby reversing the Court of Appeals’ decision.

I. Standard of Review

On a petition for review, this Court reviews the case as if the appeal had originally been filed in this Court. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000); Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). We have repeatedly held that a directed-verdict motion is a challenge to the sufficiency of the evidence, and, when reviewing a denial of a motion for a directed verdict, we determine whether the jury’s verdict is supported by substantial evidence. Pettus v. McDonald II, 343 Ark. 507, 36 S.W.3d 745 (2001); Farm Bur. Mut. Ins. Co. v. Foote, 341 Ark. 105, 14 S.W.3d 512 (2000); State Auto Prop. & Cas. Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond mere suspicion or conjecture. Id. We review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Id. A motion for a directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. Conagra, Inc. v. Strother, 340 Ark. 672, 13 S.W.3d 150 (2000); Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991). A motion for a directed verdict should be denied when there is a conflict in the evidence or when the evidence is such that fair-minded people might reach different conclusions. Id. Under those circumstances, a jury question is presented and a directed verdict is inappropriate. Id. It is not this Court’s province to try issues of fact; we simply examine the record to determine if there is substantial evidence to support the jury verdict. Id.; City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000).

We have stated that a motion for JNOV is technically only a renewal of the motion for a directed verdict made at the close of the evidence. Wheeler Motor Co., Inc. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). Accordingly, we are also governed by the rule that a trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict and the moving party is entitled to judgment as a matter of law. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999); Schmidt v. Pearson, Evans & Chadwick, 326 Ark. 499, 931 S.W.2d 774 (1996).

II. Substantial Evidence

The principles that govern slip-and-fall cases have been frequently stated by this court. Those principles are set against the general backdrop that an owner has a duty to exercise ordinary care to maintain the premises in a reasonably safe condition for the benefit of invitees. Conagra, Inc. v. Strother, supra; Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995); Black v. Wal-Mart Stores, Inc., 316 Ark. 418, 872 S.W.2d 56 (1994). To establish a violation of that duty, the plaintiff must prove either: (1) that the presence of a substance upon the floor was the result of the defendant’s negligence, or (2) the substance had been on the floor for such a length of time that the defendant knew or reasonably should have known of its presence and failed to use ordinary care to remove it. Wilson v. J. Wade Quinn Co., 330 Ark. 306, 952 S.W.2d 167 (1997); Kelly v. National Union Fire Ins. Co., 327 Ark. 329, 937 S.W.2d 660 (1997); Brunt v. Food 4 Less, Inc., 318 Ark. 427, 885 S.W.2d 894 (1994) (quoting Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991)). The mere fact that a person slips and falls does not give rise to an inference of negligence. Brunt v. Food 4 Less, Inc., supra.

The facts of the case at bar are as follows. On December 18, 1995, Turner went to FDC for a scheduled appointment with Dr. Britt Mahan. While walking in the hallway toward the elevator, Turner fell. After her fall, Turner was placed in a wheelchair and taken to see Dr. Mahan. Dr. Mahan took an x-ray of Turner’s knee and sent her to Dr. Tom Patrick Coker, an orthopaedic specialist located on the same campus as FDC. Dr. Coker placed appellee’s knee in a velcro cast and gave her crutches. Fie treated her injury conservatively and released her from treatment after four months.

Following Dr. Coker’s release, Turner sought treatment from a pain psychologist. She returned to Dr. Coker in November 1996, and complained of aching, swelling, and burning. However, Turner’s treatment from Dr. Coker was not successful. Turner went without treatment from November 1996 until September of 1997. At that time, she went to see Dr. Ken Rosenzweig. Turner told Dr. Rosenzweig that she had continuously experienced knee pain since her December 18, 1995, fall. Dr. Rosenzweig operated on her knee on October 17, 1997, and diagnosed her condition as severe patellofemoral syndrome, torn cartilage, and a mild amount of inflammation of the Hning of the joint. As á result, Dr. Rosenzweig smoothed the rough edges and surfaces inside appellee’s knee joint, removed torn cartilage, and cut a ligament that was holding down her kneecap too tight.

Turner then filed the instant cause of action. At the trial Turner testified that she injured her knee at FDC while walking toward the elevator. She stated that she was walking past the women’s bathroom when she slipped and fell on water that came from beneath the bathroom door. She also testified that although she did not see the water on the floor when she fell, she saw the water on the floor after she fell, and that no warning signs were posted indicating the area was wet. According to Turner, several people saw her fall, and she remained on the floor for eight to ten minutes. Turner told the jury that after she fell, employees of FDC came up to her and helped her into a wheelchair. Once in the wheelchair, Turner stated that a doctor wheeled her to Dr. Mahan’s office. Turner testified that Dr. Mahan told her that he was aware of the slippery condition around the bathroom, apologized to her, and stated that the clinic would take full responsibility for everything.

Amy Cruise, Turner’s niece, testified that she and a friend gave Turner a ride to the clinic. Cruise also testified that after she visited her obstetrician, who was located in the same medical complex, she walked over to FDC to see if Turner was finished. Cruise testified that she saw her aunt was on the floor in front of the women’s bathroom, and saw water on the floor beside her. On cross examination, Cruise admitted that she did not see her aunt fall or accompany her aunt to see Dr. Mahan.

At the close of Turner’s case, FDC moved for a directed verdict, arguing that Turner failed to prove that the water on the floor was the result of appellant’s negligence or how long the . water was on the floor. Turner responded that she presented evidence that Dr. Mahan knew the floor was slippery, apologized for the condition of the floor, and took full responsibility for it. The trial court denied the motion and commented that although Turner presented evidence that Mahan knew the floor was slippery, she failed to present any evidence that Mahan knew there was water in front of the bathroom door on the date in question.

Following denial of FDC’s motion for directed verdict, the jury heard testimony from Brenda Tooley and Dr. Mahan, and rebuttal testimony from appellee. Brenda Tooley, an employee of FDC, testified that she did not see Turner fall, but was aware of the general vicinity where Turner fell. She stated she was not aware of any maintenance or plumbing work conducted around the bathroom area the months before, during or after Turner’s fall. On cross examination, Tooley admitted she was not on the premises on the day Turner fell.

Dr. Mahan, an employee and shareholder of FDC, testified for FDC. Mahan told the court he was scheduled to examine Turner for stomach problems on the date of her fall, but as a result of the fall attended to Turner’s immediate injury. On direct examination, Mahan stated that he wrote in his medical report that “[Turner] did slip on our tile floor while in the bathroom.” Flowever, on cross, Mahan stated his medical report indicated that “[Turner] slipped coming from the wet outer environment,” and that the report “sounds like she slipped coming in from the wet environment. She told me she slipped around the bathroom.”

Mahan also testified that he wrote in his medical records that as a result of Turner’s fall, she sustained bruising and pain in the left knee initially, and that although Turner could bear it, she preferred sitting in a wheelchair. Mahan told the jury that although his medical report did not indicate it, the x-ray taken of Turner’s kneecap showed that the kneecap was fractured. Mahan further testified that his medical report stated there was no swelling in Turner’s left knee, which directly contradicted Dr. Coker’s findings. The x-ray report was not included in Turner’s medical chart. Dr. Mahan denied apologizing to Turner, and told the jury he had “no explanation” as to why there was no medical record of his conversations or contact with Turner after she returned to see him with her x-rays. He testified that he had no information or knowledge that the floor was slippery and denied that appellee told him the floor was slippery.

Dr. Mahan stated that although the average doctor at FDC saw twenty patients a week, he saw seventy or eighty patients within a week, and that the only memory he had of what happened came from his medical report. He stated that even though he normally dictated information to add to the medical chart, either the dictation did not exist or the report may have been transcribed and not placed in the chart where it could be found. Mahan testified that when he told Turner he would take care of her, he meant he would take care of her medically. Finally, Mahan stated that he had no knowledge of the condition of the floor on December 18, 1995, and that he had no memory of going to the lobby area on that date.

Following the close of the evidence, FDC again moved for a directed verdict, arguing that no evidence was presented that the water on the floor was the result of FDC’s negligence or that the water came from the bathroom. Counsel for Turner responded that she proved negligence because an employee of FDC (Dr. Mahan) was aware of the floor’s condition and took responsibility for it. The court denied the motion for directed verdict, stating that it appeared to be a question of credibility between Dyanna Turner’s testimony and that of Dr. Mahan and, therefore, must then be submitted to the jury. The jury returned a verdict in favor of plaintiff for $48,703, and the trial court denied the posttrial motions previously mentioned.

The appellant contends (and the Court of Appeals held) that this jury verdict should be reversed because there was not substantial evidence from which the jury could have inferred that FDC was aware of the condition that caused appellee’s fall and that it failed to take any corrective action to prevent said fall. We disagree. We hold that there was substantial evidence from which the jury could have inferred that Dr. Mahan, as one of the owners of FDC, was aware of the condition that caused appellee’s fall and that he failed to take any corrective action.

Ms. Turner testified that Dr. Mahan told her that he knew the floor down around the bathroom was slippery and that “they,” meaning FDC, would take care of everything. According to Dr. Mahan, he never told Ms. Turner he was aware of the condition of the floor. In reviewing the evidence, we have consistently held that we do not pass upon the weight and the credibility of the evidence, as such determinations remain within the province of the jury. See Griffen v Woodall, 319 Ark. 383, 892 S.W.2d 451 (1995); Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994). Moreover, jurors are entitled to take into the jury box their common sense and experience in the ordinary affairs of life. Palmer v. Myklebust, 244 Ark. 5, 424 S.W.2d 169 (1968); Rogers v. Stillman, 223 Ark. 779, 268 S.W.2d 614 (1954).

Given the substantial-evidence standard, reviewing the evidence and all inferences in favor of the jury’s verdict, Dr. Mahan’s statement is sufficient to allow the verdict to stand. From Ms. Turner’s testimony that Dr. Mahan admitted he knew the floor down around the bathroom was slippery, the jury could have inferred that the slippery condition of the floor around the bathroom had existed for such a length of time that the premises owner (Dr. Mahan — an employee working on the second floor, when the bathroom was located on the first floor of the building) knew of its presence and failed to use ordinary care to correct it. Furthermore, if believed, Ms. Turner’s testimony that Dr. Mahan stated that he knew the floor around the bathroom was slippery was a reasonable basis from which the jury could have inferred Dr. Mahan knew why the floor down around the bathroom was slippery. These are entirely reasonable inferences from the evidence presented and are all that is required to meet the substantial-evidence standard.

For these reasons, this Court cannot say that the trial court clearly erred when it allowed the case to go to the jury.

III. Remittitur

Regarding when a remittitur is appropriate, we held in Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999):

When an award of damages is alleged on appeal to be excessive, we review the proof and all reasonable inferences most favorable to the appellee and determine whether the verdict is so great as to shock our conscience or demonstrate passion or prejudice on the part of the jury. Builder’s Transp., Inc. v. Wilson, 323 Ark. 327, 914 S.W.2d 742 (1996).

Id. at 551.

Appellee introduced evidence that she suffered the pain and inconvenience of a fractured kneecap for four months. She testified she additionally suffered pain and inconvenience of an untreated torn cartilage for over three years. Appellee testified that her knee was still giving her problems and that it hurt her to walk.

Dr. Rosenzweig testified that appellee’s knee had severe erosion and that there was objective evidence for her pain. He testified that the $10,000 in medical bills appellee had incurred were reasonable and related to her fall. He testified that appellee had a 15 percent permanent impairment to her knee as a result of her fall. He further testified that with a reasonable degree of medical certainty, the appellee would require some form of medical treatment in the future for her knee because she had areas of complete delamination of cartilage to exposed bone. Without objection from FDC, Dr. Rosenzweig testified that, more than likely, appellee would need further arthroscopic treatment which would cost what she paid to him for her first arthroscopic surgery which was around $10,000.

Clearly, there was substantial evidence before the jury to justify its award of $48,703 in damage for the appellee’s present and future pain and suffering, present and future medical bills, and for the permanent disability to her knee. As such, we cannot say that this amount “shocks the conscience” of the court, as it is clearly justifiable pursuant to Dr. Rosenzweig’s testimony and does not demonstrate any level of passion or prejudice on the part of the jury.

Affirmed.


text:
    Orma Jean MOON v. Jim C. CITTY, M.D., Arkansas Health Group, d/b/a Searcy Medical Center
    01-9
    42 S.W.3d 459
    Supreme Court of Arkansas
    Opinion delivered April 26, 2001
    [Petition for rehearing denied May 31, 2001.]

      The Boyd Law Firm, by: Charles P. Boyd, Jr., and Christopher Anderson, for appellant.

      Friday, Eldredge & Clark, by: Laura H. Smith and Martin A. Kasten, for appellees.
   W.H. “Dub” Arnold, Chief Justice.

The issue in this case is whether a party may obtain an extension of time from the trial court to file a posttrial motion under Ark. R. Civ. P. 59(b), thereby extending the time in which a notice of appeal must be filed. We hold, pursuant to Ark. R. Civ. P. 6(b), that such an extension may not be granted and that the trial court erred in ordering such an extension. We, therefore, dismiss the appellant’s appeal.

Appellant, Orma Jean Moon, and her husband, Bobby J. Moon, filed suit against appellees in 1998. The case was tried before a jury on August 15-18, 2000. A directed verdict was granted against Bobby J. Moon, and the jury returned a verdict for appellees and against appellant. The judgment was subsequendy filed on September 6, 2000. No posttrial motions attacking the judgment were filed until September 29, 2000. Instead, on September 15, 2000, appellant filed a motion for extension of time to file posttrial motions. The trial court granted the motion. The order granting the extension allowed the appellant to file posttrial motions up to and through September 26, 2000.

Before having knowledge that the extension had been granted, appellees filed a response to motion for extension of time to file posttrial motions on September 20, 2000. The appellees objected to the extension, noting that Rule 59 of the Arkansas Rules of Civil Procedure required posttrial motions to be filed within ten days of the judgment. On September 26, 2000, the appellant filed a second motion for extension of time to file posttrial motions. The appellees claim that they did not receive notice of such motion. Regardless, a second order granting another extension was issued and filed on September 26, 2000. This second order granted an extension for filing posttrial motions until September 29, 2000.

On September 29, 2000, appellant filed by fax a motion for new trial; the original hard copy was filed on October 2, 2000. The trial court denied that motion on October 18, 2000. The appellant then filed her notice of appeal on November 16, 2000.

On January 3, 2001, appellees lodged a partial record and filed appellee’s motion to dismiss appeal. On January 15, 2001, the appellant filed a response. The next day, appellant filed a motion to supplement partial record, which was granted on February 1, 2001. On February 1, 2001, this Court ordered that appellees’ motion to dismiss appeal be submitted as a separate case and further ordered simultaneous briefs from the parties.

The question of whether the time for filing posttrial motions under Rule 59(b) may be enlarged is easily answered by referring to Rule 6(b), which addresses the issue of when the court may enlarge the time required under the Rules. As currently written, the Rules are very clear and unambiguous. Rule 59(b) states that a motion for new trial “shall be filed not later than 10 days after the entry of judgment.” (Emphasis added.) Rule 6(b) clearly states, without qualification, that the court “may not extend the time for taking an action under Rule ... 59(b) .. . except to the extent and under the conditions stated [therein],” of which there are none stated under Rule 59(b). (Emphasis added.)

This Court has held that it construes court rules using the same means, including canons of construction, as are used to construe statutes. Gannett River Pub. v. Ark. Dis. & Disab., 304 Ark. 244, 801 S.W.2d 292 (1990) (citing N. Singer, 3A Sutherland Statutory Construction, 67.10 (4th ed. 1986)). The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Yamaha Motor Corp. v. Richard’s Honda Yamaha, 344 Ark. 44, 38 S.W.3d 356 (2001); Dunklin v. Ramsay, 328 Ark. 263, 944 S.W.2d 76 (1997). When the language of a statute is plain and unambiguous, there is no need to resort to rules of statutory construction. Burcham v. City of Van Buren, 330 Ark. 451, 954 S.W.2d 266 (1997). In other words, if the language of the statute is plain and unambiguous, the analysis need go no further. Id.

It seems evident that the plain-meaning rule controls this case and that the analysis need go no further. The trial court was clearly without authority to enlarge the time to file posttrial motions under Rule 59(b). As such, appellees’ motion to dismiss the appeal should be granted.

Appellant cites the case of King v. Carney, 341 Ark. 955, 20 S.W.3d 341 (2000), in support of the proposition that she had the right to rely upon the trial court’s granting of an extension, even though the court did not have the power to do so. King, however, is distinguishable from this case. In King, the issue was in regard to an extension of time to obtain service of process, which the trial court did have the authority to grant, upon a proper motion filed before the expiration of the time to obtain service.

In that case, King had properly filed her motion within the proscribed period, and the trial court had granted the extension. The trial court had later rescinded the orders, and dismissed the case with prejudice after King obtained service outside the 120 days, but within the time allowed under the extension, thereby depriving King of her right to bring suit. However, in that case, this Court held that because King had properly filed her motion for extension of time within the proscribed period in accordance with the Rules, she had the right to rely on the trial court’s extensions. That is distinguishable from the instant case because, in this case, the Rules provide for no extension of time to file posttrial motions under Rule 59(b), and further provide no way for the trial court to allow such an extension. As such, appellant’s reliance, if any, upon the trial court’s granting of an extension was misplaced as the Rules plainly, clearly, and unequivocally, require that said motions be filed no later than ten days after entry of judgment.

Appellant maintains that she had good cause to need additional time to prepare her motion, as she did not receive a transcript until the day before the motion was due. This is unpersuasive, as posttrial motions are in no way based upon transcripts, and extensions of time waiting for transcripts are neither contemplated nor permitted under the rules.

For all of the above-stated reasons, the appellant’s appeal is hereby dismissed.

       Appellant makes the argument that due to a slight difference in punctuation between Fed. R. Civ. P. 6(b) and Ark. R. Civ. P. 6(b), we should construe the Arkansas rule more leniently with regard to the filing of a notice of appeal. We reject this argument. See Horton et al. v. Gillespie, 170 Ark. 107, 279 S.W. 1020 (1926).