author: Lavenski R. Smith, Justice.

text:
    Steve Robert HILL v. STATE of Arkansas
    CR 98-1104
    988 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999
    [Substituted opinion delivered April 13, 1999]

      Everett & Mars, by: John C. Everett and Elizabeth E. Storey, for appellant.

      Mark Pryor, Att’y Gen., by: Michael C. Angel, Ass’t Att’y Gen., for appellee.
   Lavenski R. Smith, Justice.

Appellant, Steve Robert Hill, brings this appeal from a judgment of conviction for four counts of rape involving three children younger than age fourteen. The victims were Hill’s three oldest daughters who ranged in age from seven to eleven. Hill received a sentence of life in prison for each count. Hill raises four points on appeal. He contends: (1) that the trial denied his right to a fair and impartial trial when it allowed the introduction of testimony concerning prior acts of defendant; (2) that the trial court erred in allowing the State to cross-examine Hill regarding a statement Hill made which the State failed to disclose during discovery; (3) that the trial court erred in allowing a witness to testify that the victims were telling the truth about the sexual abuse; and (4) that the trial court erred in allowing witnesses to remain in the courtroom after the rule had been invoked. We find no such errors and accordingly affirm the trial court’s judgment.

Appellant and his wife, Gwendolyn, were married in 1984. They divorced in 1991 but remarried in December 1992. During the course of their two marriages, the Hills had nine children together including N.H., R.H., A.H., R.H., J.H., E.H., D.H., D.H. and M.H. The rape charges were filed based on accounts of sexual abuse reported by N.H., R.H., and A.H., the three oldest children, who were aged thirteen, eleven, and ten, respectively, at the time of trial. The Arkansas Department of Human Services Division of Children and Family Services (DCFS) initially investigated the family in 1996, while they lived in Bergman, Arkansas, because the children were not enrolled in school. The Hills enrolled the children immediately. However, in October 1996, following investigation, DCFS removed the Hills’ children from their custody due to their home’s unsanitary condition. DCFS placed the Hill children in foster care. Pursuant to DHS regulations, the children underwent general medical examinations by a physician on November 4, 1996. As part of the examination, the physician examined the children for signs of sexual abuse although, at that time, no report of abuse had been made. However, the DHS caseworker, Carol Thompson, testified at trial that she suspected at that time that some type of abuse had occurred. The physician’s examination revealed no signs of any type of abuse, except for an abnormality on N.H.’s hymen, possibly from a small, healed tear. However, the physician could not testify with any certainty what caused this abnormality.

On January 30, 1997, R.H.’s foster parents brought her to the DHS office because of a temper tantrum she had had earlier that day. At the office, R.H. told her caseworkers that she had been sexually abused by Hill. Soon after, N.H. and A.H. also disclosed that they, too, had been sexually abused by Hill. DHS reported this information to the Boone County Sheriff s Department, and the sheriff arrested Hill and his wife Gwen. The State brought charges for rape and incest against Hill. The prosecutor later dropped the incest charges. Boone County Circuit Court tried Appellant on the rape charges between February 17 and February 20, 1998, resulting in Hill’s conviction.

Rule 404(b)

For his first point on appeal, Hill asserts that his right to a fair and impartial trial was denied when the trial court allowed the introduction of testimony by witnesses regarding prior physical abuse and torture of the family and statements made by the prosecutor during opening statements regarding group beatings of the family. Hill argues that this testimony was unfairly prejudicial to him in violation of Ark. R. Evid. 404(b). During the prosecutor’s case-in-chief, witnesses N.H., R.H., A.H., and Gwendolyn Hill testified about physical abuse inflicted upon them and other family members by the appellant. N.H., in particular, stated appellant beat them almost daily with cords, belts, and flyswatters, and that appellant used an electric transformer to shock members of the family on the bottoms of their feet. Appellant contends on appeal that such testimony was unduly prejudicial and should have been excluded under Ark. R. Evid. 404(b).

In response, the State argues that Hill waived this issue on appeal because appellant failed to make a contemporaneous objection when the evidence came in. Smith v. State, 330 Ark. 50, 53, 953 S.W.2d 870 (1997). Furthermore, the State argues that Hill did not ask for a limiting instruction on the admission of the prior abusive conduct, and such failure did not preserve the issue for appeal. Lindsey v. State, 319 Ark. 132, 138, 890 S.W.2d 584 (1994). We agree and hold that appellant’s failure to make contemporaneous objections to the testimony of witnesses regarding his physically abusive conduct towards them prevents him from asserting trial court error for its admission on appeal. Smith, supra. The record reflects that appellant made no objection during the testimony of these witnesses as they related accounts of appellant’s physical abuse of them. To preserve a point for appeal, a proper objection must be asserted at the first opportunity after the matter to which objection has been made occurs. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Appellant’s objection during the State’s opening statement was not adequate to preserve the issue on appeal where no objection was made at the time testimony was given.

Discovery Violation

In his second point on appeal, Hill argues that he was prejudiced at trial when the trial court allowed the State to cross-examine appellant regarding statements he made to a DHS caseworker after his arrest in the course of the worker’s abuse investigation. Despite Hill’s proper discovery requests, the prosecution did not turn over this document. There is no indication nor even assertion that this was a willful violation of the discovery request. Nonetheless, the parties agreed that the State’s nonproduction of documents violated the discovery rules. However, we do not reach the merits of appellant’s contention because appellant neglected to include the referenced document in his abstract. This Court has consistently held that arguments will not be considered where the supporting testimony or evidence has not been abstracted. Evans v. State, 331 Ark. 240, 241, 959 S.W.2d 745 (1998). We regard this as a fundamental rule. Ark. Sup. Ct. R. 4-2(a)(6). Information necessary for a proper understanding of the questions presented to the court must be contained within the abstract. Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996). Appellant bears the responsibility for producing a sufficient abstract. Failure to do so prevents this court from reaching the merits of appellant’s contention.

Witness Testimony

For his third point on appeal, Hill argues that the trial court erred by 1) allowing a witness to testify that the victims were telling the truth, and 2) allowing the witness to testify as to Hill’s guilt. Specifically, Hill argues that Thompson, the DHS caseworker, testified that the three girls were telling the truth when they reported the sexual abuse to Thompson and other DHS workers. Furthermore, Hill argues that Thompson also testified as to Hill’s guilt based on the allegations of abuse made in Missouri five years earlier in light of the rate of repeat offenders in child-abuse cases. The State argues in response that Thompson was only testifying about the Department’s criteria for evaluating the children’s allegations of sexual abuse. The State further argues that even if the trial court erred in allowing the testimony, prejudice did not result because the overwhelming evidence from the children defeated any prejudice which may have been created. We agree with the State and affirm the trial court’s admission of the testimony.

Appellant correctly states the law when he contends that it is error for the court to permit an expert, in effect, to testify that the victim of a crime is telling the truth. Logan v. State, 299 Ark. 255, 773 S.W.2d 419 (1989); Russell v. State, 289 Ark. 533, 534, 712 S.W.2d 916 (1986); Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987). However, appellant fails to properly apply that precedent to the facts of the case at bar. In Logan, a clinical psychologist testified immediately following the victim and was posed a series of long and complicated hypothetical questions. In that case, we held that the very essence of the expert’s testimony was that he thought the victim was telling the truth. In the instant case, Thompson’s testimony on direct examination responded to questions regarding the criteria used by the Department in evaluating a child’s statement when sexual abuse has been alleged. Reviewing the witness’s testimony, it is our holding that Thompson’s statements were not improper but were valid evidence of the Department’s procedures in general, and, in specific, constituted evidence of the procedures followed in this case by the Department in its investigation. She was not testifying as an expert about hypothetical circumstances but testified as a fact witness about the Department’s guidelines employed in this and similar cases to determine whether a child’s allegations warrant an investigation. Upon appellant’s objection, the court responded that the jury was entitled to understand the State’s interview and investigation techniques. The court also indicated that the witness would have to stop short of bolstering the children’s testimony. In permitting this testimony, we find no error in the trial court.

Exclusion of Witnesses from the Courtroom

Hill’s final point on appeal is whether the trial court erred in failing to exclude three subpoenaed witnesses from the courtroom after Hill invoked the “rule.” At trial, Hill invoked the “rule,” but the trial court allowed the foster parents and one DHS caseworker, Vicky Garner, to remain in the courtroom while the children testified because the children were afraid and wanted “supportive faces” in the audience. Hill claims this is error in violation of Ark. R. Evid. 615 and because part of Hill’s defense was that the children had been told to make these allegations against him.

The “rule,” Rule 615, requires the exclusion of witnesses from the courtroom to prevent them from adjusting their testimony based upon what they have heard prior witnesses say. Exclusion is mandatory upon request by either party, and only specific exceptions exist to allow witnesses to remain in the courtroom. Clark v. State, 323 Ark. 216, 216, 913 S.W.2d 297 (1996). The standard of discretion given to the trial court is no discretion because the rule is mandatory. Blaylock v. Strecker, 291 Ark. 340, 344, 724 S.W.2d 470 (1987). “The purpose of Rule 615 is to expose inconsistencies in the testimonies of different witnesses and ‘to prevent the possibility of one witness’s shaping his or her testimony to match that given by other witnesses at trial.’” Clark, supra, 323 Ark. at 217, quoting King v. State, 322 Ark. 51, 55, 907 S.W.2d 127, 129 (1995).

As noted, however, exceptions to the rule do exist; principally, Ark. R. Evid. 616 allows a victim to be present in the courtroom during testimony. Furthermore, it provides that if the victims are under age eighteen, those children are allowed to have their parents, guardian, custodian, or other person with custody of the children to be present. Ark. R. Evid. 616. This Court has allowed a child’s guardian to be present during the child’s testimony at trial on previous occasions. See, Kester v. State, 303 Ark. 303, 797 S.W.2d 704 (1990). Though not precedent for this Court, we note the Arkansas Court of Appeals has specifically allowed a DHS caseworker to be present at trial when the victim is a child in DHS custody at the time of trial, and the child had the right to have his representative there under Rule 616. Gadberry v. State, 46 Ark. App. 121, 877 S.W.2d 941 (1994). Conspicuously absent from appellant’s brief is any discussion of Rule 616’s applicability to the facts of this case. Nor has appellant demonstrated that any prejudice resulted from the trial court not excluding the witnesses. In fact, appellant never called the witnesses to take the stand. Prejudice is not presumed, and the court will not reverse absent a showing of prejudice. Clark, supra, 323 Ark. at 216-217. We hold that the trial court did not err in permitting either the caseworker or the foster parents to be present during the hearing. They are covered by the exceptions stated in Rule 616.

Rule 4-3(h) Review

The record has been reviewed pursuant to Ark. Sup. Ct. R. 4-3(h), and it has been determined that there are no errors with respect to rulings on objections or motions prejudicial to Hill not discussed above.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE of Arkansas v. Robert A. ROBBINS, Appellee; Bobbye Jeanne Robbins, Next Friend and Intervenor
    CR 98-1394
    987 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered April 8, 1999

      Winston Bryant, Att’y Gen., by: Todd L. Newton, Ass’t Att’y Gen., and Kelly K Hill, Deputy Att’y Gen., for appellant.

      Val P. Price, for appellee.

      Jeff Rosenzweig, for next friend and intervenor.
   Per Curiam.

On June 17, 1998, a jury convicted Mr. Robert A. Robbins of capital murder and sentenced him to death. By per curiam order entered on December 11, 1998, we affirmed the trial court’s finding that Mr. Robbins had properly waived his right to appeal. State v. Robbins, 335 Ark. 380, 985 S.W.2d 293 (1998). In an unpublished mandate entered on December 22, 1998, and a per curiam order clarifying that mandate, we held that Mr. Robbins had properly waived his right to postconviction remedies under Ark. R. Crim. P. 37. State v. Robbins, 336 Ark. 377, 985 S.W.2d 296 (1999). Mr. Robbins was then scheduled for execution on April 12, 1999.

Currendy, Ms. Bobbye Jeanne Robbins, Mr. Robbins’s mother, has filed a “petition of next friend to recall mandate, for stay of execution and for reexamination of legal and factual issues.” We grant the request for a stay of execution, recall our December 22, 1998 mandate, and order the parties to brief the following issues:

1. Does Ms. Robbins have standing to intervene as a next friend for her son, and, if so, is it appropriate for us to consider her arguments at this time?

2. Should the entire record of the trial in which Mr. Robbins was found guilty and sentenced to death be reviewed to determine whether Mr. Robbins was competent to waive his right to appeal and his postconviction remedies under Rule 37?

3. Should this court overrule Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), and its progeny, and impose mandatory review for trial error in all death-penalty cases regardless of whether the defendant desires such a review?

4. If this court imposes mandatory review of the trial errors in this case, should we then appoint an attorney ad litem for Mr. Robbins to ensure that the record is properly examined and all issues are briefed?

The clerk of this court shall establish the briefing schedule. Because Ms. Robbins is the moving party, she shall proceed first in the preparing and filing of her brief. Finally, the stay of execution shall continue until this court renders its opinion in this matter.


author: W. H. "Dub"Arnold, Chief Justice.

text:
    MERCHANTS BONDING COMPANY v. Imo Rebecca Lynn STARKEY
    98-118
    987 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      William G. Bullock, for appellant.

      McKenzie, McRae, Vasser & Barber, by: James H. McKenzie, for appellee.
   W. H. "Dub"Arnold, Chief Justice.

This is a case involving two guardianships, the assets of which were eventually combined. The first guardianship was opened in Miller County, Arkansas, on January 30, 1989. The ward was Rebecca Lynn Starkey, an incompetent person. Barbara A. Kennedy was appointed guardian of the person and the estate of Ms. Starkey. She posted a $5,000.00 bond in order to qualify.

The second guardianship was opened in El Paso County, Texas, on June 19, 1989. Ms. Starkey being the ward, Ms. Kennedy was again appointed as guardian, as she represented that she was already serving as guardian of the ward’s person and estate in Arkansas. Before she qualified as guardian in the Texas guardianship proceeding, Ms. Kennedy was required to post a bond in the sum of $50,000.00. The bond was filed by Kennedy as principal and Merchants Bonding Company, appellant, as surety, in the County Court of El Paso County, Texas, conditioned that the guardian shall well and truly perform all the duties required of her by law.

The Texas guardianship was transferred in May of 1990 by order of the County Court of El Paso County, Texas, to Bowie County, Texas. It is undisputed that the $50,000.00 Bond of Guardian followed the guardianship to Bowie County, Texas. On October 19, 1990, Kennedy, as guardian, filed an application in the County Court of Bowie County, Texas, requesting transfer of guardianship assets deposited in the Texarkana National Bank, Texarkana, Texas, to the Arkansas guardianship. On October 24, 1990, the County Court of Bowie County, Texas, granted the request and ordered the assets of the ward’s estate held in Texarkana National Bank to be transferred to the Miller County, Arkansas, guardianship.

A hearing was held in the guardianship by the Miller County, Arkansas, Probate Court on October 1, 1996, to review Kennedy’s conduct in her capacity as guardian of Starkey. Pursuant to that hearing, a judgment was entered against Kennedy in the amount of $321,000.00 because of her failure to account and for her mismanagement of the guardianship estate. Appellee Citizens National Bank of Hope was subsequently appointed successor guardian of the estate of Starkey.

The Miller County, Arkansas, Probate Court further ordered that the $5,000.00 bond Kennedy had posted to qualify to act as guardian in the Arkansas proceeding be forfeited. The court then issued an order that appellant Merchants Bonding Company show cause why its $50,000.00 bond, issued in connection with the Texas guardianship proceeding, should not be forfeited. Hearings were held on the Merchants’ bond issue, and on October 8, 1997, the court rendered judgment against Merchants in the sum of $50,000.00 plus interest. It is from that order appellant brings this appeal.

Appellant asserts six points on appeal:

1) The trial court erred in assuming and exercising subject-matter jurisdiction over the bond issued by Merchants Bonding Company in Connection with the Texas guardianship;
2) The enforcement of Merchants Bonding Company’s bond in this proceeding constitutes a denial of, and a taking of Merchants’ property without due process of law;
3) The enforcement of Merchants Bonding Company’s bond in this proceeding constitutes a denial to Merchants of privileges and immunities guaranteed to Merchants in violation of the United States Constitution;
4) The trial court erred in construing the bond in such a manner as to be enforceable outside the state of Texas;
5) The trial court erred in construing the bond in such a manner as to indemnify against conduct of the principal in a capacity other than the capacity as to which the undertaking was made;
6) The trial court’s finding that there were acts of malfeasance in Bowie County, Texas, is not supported by substantial evidence.

We agree with appellant that the trial court erred in assuming and exercising subject-matter jurisdiction over the bond issued by Merchants Bonding Company in connection with the Texas guardianship and reverse on this ground. Because we are reversing this case on this ground, appellant’s remaining points on appeal need not be addressed.

This Court has held that a bond must be construed as if the law were written into it; it must be construed as a whole, and that as against sureties, there is no implication to be made not clearly embraced within the language used. Sureties are only chargeable according to the terms of the bond. A bond should be construed to effectuate the reasonable intention of the parties. New Amsterdam Cas. Co. v. Detroit Fidelity & Sur. Co., 187 Ark. 97, 58 S.W.2d 418 (1933). The bond states as follows:

That we, Barbara A. Kennedy, as Principal, and the MERCHANTS BONDING CO. (Mutual), a corporation duly licensed to do business in the State of Texas, as Surety, are held and firmly bound unto the county Judge of El Paso County, and his successors in office, in the sum of Fifty Thousand ($50,000) DOLLARS, conditioned that the above bounden Principal who has been appointed Guardian of the Person and Estate of Rebecca Lynn Starkey, an Incompetent Person, Ward, shall well and truly perform all the duties required of him [sic] by law under said appointment.

Nothing in the bond indicates that the parties creating it contemplated that the bond would be payable in any state but Texas.

Appellees argue that the purpose of a guardian’s bond is to preserve the estate of the ward and that said purpose is the same, whether it is in Texas or Arkansas. We have acknowledged that preservation of the estate of the ward is indeed the purpose of a guardian’s bond. Bennett v. McGough, 281 Ark. 414, 664 S.W.2d 476 (1984). However, Tex. Rev. Civ. Stat. Ann. Ins. Art. 7.01 (1980) provides that if any suit is instituted on any bond or obligation of an insurance company licensed in the state and having authority to act as surety and guarantor of a guardian, “the proper court of the county wherein said bond is filed shall have jurisdiction of said cause.” This requirement has been strictly applied, with the court finding that if venue lies in one jurisdiction, it cannot He elsewhere. Walker v. State, 251 S.W.2d 547 (Tex. App. 1952).

In the case at bar, the proper jurisdiction for a suit instituted on the bond given in Texas would be in the County Court of Bowie County, Texas, as that is where the El Paso County Judge transferred the case. Under article 7.01, as well as Walker, this would mean that only the County Court of Bowie County, Texas, would have jurisdiction and that no Arkansas court could claim jurisdiction over the subject matter of the bond. It is stated in 12 Am. Jur. 2d, Bonds § 34 (1997) that “[w]here suit is brought on a bond given pursuant to the statutes of another state, the performance of or compliance with the conditions imposed by the statute of such other state is a prerequisite to maintenance of the action.” Therefore, the laws of Texas requiring that suit be brought only where the bond was issued would govern to prohibit the enforcement of the bond in Arkansas.

The actual language of the bond supports this outcome. The bond states that Kennedy and Merchants are “held and firmly bound unto the County Judge of El Paso County, and his successors in office.” This language indicates that only the El Paso County Judge or his successors in office could find Kennedy or Merchants liable on the bond. As an Arkansas court would not be a successor in office to a Texas court, the Arkansas court would be without jurisdiction to enforce it.

Furthermore, because this Court construes bonds as if the law were written into them and will not make implications against sureties not clearly embraced within the language used, New Amsterdam Cas. Co., 187 Ark. at 100, 58 S.W.2d at 419, this Court should read the language of the bond as if the laws of Texas in effect at the time the bond was created were written into it and should not make implications not clearly embraced in that language. Reading the bond in this manner leads this Court to the conclusion that the bond is not enforceable by an Arkansas court; therefore, the probate court did not have subject-matter jurisdiction, and the matter should be reversed.

Reversed.


author: Tom Glaze, Justice.

text:
    Kenneth ELMORE, Mayor for the City of Huntington, Vickii Strange, Recorder and Treasurer for the City of Huntington, City of Huntington, Huntington City Council, and J.B. Lawrence, Terry Landon, Joe Elmore, Harold Freeman, Mike Winters, and Diane Embry, Members of the Huntington City Council v. Sue BURKE and Charles Chapman
    98-704
    987 S.W.2d 730
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      Orville C. Clift, P.A., for appellant.

      Dan S. Nelson, for appellee.
   Tom Glaze, Justice.

This case is certified to us by the court of appeals under Ark. Sup. Ct. R. 1-2(b)(1), (4) and (d), and requires the interpretation of Ark. Code Ann. § 25-19-106 (b)(2) (Repl. 1996), the notice provision of the Arkansas Freedom of Information Act (FOIA). Appellees Sue Burke and Charles Chapman (hereafter “Burke”) initiated this litigation against Huntington city officials Mayor Kennith Elmore, Recorder and Treasurer Vickii Strange, and council members J. B. Lawrence, Terry Landon, Joe Elmore, Harold Freeman, Mike Winters, and Diane Embry (collectively referred to as the “City”). Burke filed suit after the City terminated its chief of police, Jonathan Efurd, on April 10, 1997. Burke alleged that the City violated the FOIA when it terminated Efurd, and requested the circuit court to (1) declare the City’s action invalid, (2) order the City to comply with FOIA notice provisions when holding future meetings, and (3) award Burke reasonable attorney’s fees and costs. The City denied Burke’s allegations. After a hearing on the merits, the circuit court granted Burke the relief requested after finding that the City’s action against Efurd violated § 25-19-106(b)(2) of the FOIA by fading to give notice to the appropriate media representatives of the April 10, 1997 meeting. The trial court awarded Burke $1,500.00 in attorney’s fees and $144.00 in costs.

The facts leading to Efurd’s dismissal are largely undisputed. In brief, Efurd had served as Huntington’s chief of police until Kennith Elmore was appointed mayor to fill the vacancy left when the prior mayor died. Sometime after Elmore assumed office, differences arose between him and Efurd which resulted in Efurd going to his office at city hall on April 8, 1997, to remove his personal items. Mayor Elmore and certain council members met Efurd at city hall. While no formal action took place on April 8, apparently Burke, having observed the group from her house, telephoned Mayor Elmore to ask why the group was meeting. Elmore purportedly responded that the meeting was none of her concern. Burke went to city hall the next day to make further inquiry, but she claimed the city officials were rude and asked her to leave the building. On April 10, 1997, the mayor and council members formally met and decided to ask Efurd to either resign or be terminated. When Efurd refused to resign, he was terminated during the April 10 meeting. The record reflects only the local newspaper, The Mansfield Citizen, had been notified of the April 10 special meeting, and no media representatives had been notified of the April 8 gathering. Burke filed this suit on April 23, 1997, and was granted relief under the FOIA as set out above.

In short, the circuit court held that, in conducting the April 10 meeting, the City violated the notice provision of the FOIA which reads as follows:

(2) In the event of emergency or special meetings, the person calling the meeting shall notify the representatives of newspapers, radio stations, and television stations, if any, located in the county in which the meeting is to be held and any news media located elsewhere which cover regular meetings of the governing body and which have requested to be so notified of emergency or special meetings of the time, place, and date of the meeting. Notification shall be made at lease two (2) hours before the meeting takes place in order that the public shall have representatives at the meeting.

Ark. Code Arm. § 25-19-106(b)(2) (Repl. 1996). The circuit court interpreted this statutory provision pertaining to emergency or special meetings to mean that notice must be given to any and all news media located in the county where the meeting is to be held, even though no member of the media may request such notice. Accordingly, because the City had only notified the Mansfield paper and not any other media in Sebastian County, the circuit court held that the City failed to comply with § 25-19-106(b)(2) and, as a consequence, its April 10 meeting was invalid. We disagree with the circuit court’s interpretation.

In Nance v. Williams, 263 Ark. 237, 564 S.W.2d 212 (1978), this court construed essentially the same foregoing provision of the FOIA when it was previously codified at Ark. Stat. Ann. § 12-2805 (Repl. 1979). That section provided as follows:

In the event of emergency, or special meetings the person calling such a meeting shall notify the representatives of the newspapers, radio stations, and television stations, if any, located in the county in which the meeting is to be held and which have requested to be so notified of such emergency or special meetings, of the time, place and date at least two (2) hours before such a meeting takes place in order that the public shall have representatives at the meeting.

Ark. Stat. Ann. § 12-2805 (Repl. 1979). In Nance, taxpayers filed suit against the Beedeville School District directors, alleging the directors’ emergency meeting calling a bond issue election was void because no advance notice was given to the press. The Nance court rejected the taxpayers’ contention and held no such notice was required by the FOIA under § 12-2805, because none of the news media had requested it. 263 Ark. at 238, 564 S.W.2d at 213. The Nance court’s plain reading of § 12-2805 reflected that the FOIA required the school board (public agency) to notify media representatives in the county where the meeting is to be held, but only when such media members had requested notice of such emergency or special meetings. Id.

After the Nance decision, § 12-2805 was amended by Act 843 of 1985, and recodified at Ark. Code Ann. § 25-19-106(b)(2) (Repl. 1996), but that amendment in no way changed the FOIA’s notice provision that required the media to request notice of any special or emergency meeting. Instead, the Act merely added the words “and any news media located elsewhere which cover regular meetings of the governing body.” 1985 Ark. Acts 843. This added language merely empowered the media located outside the county where a public agency meets to request notice of any emergency or special meetings. As explained in Act 843’s emergency clause, the General Assembly recognized that, in some instances, the principal newspaper serving the patrons of a school district is located outside the county in which the district is located; by enacting Act 843, the General Assembly provided that notice of emergency or special meetings should be given the newspaper serving those patrons when the newspaper requests such notice.

In sum, we hold that § 25-19-106(b)(2) provides that the news media located in the county where the meeting is held and those located elsewhere that cover regular meetings of the body may request that they be notified of special and emergency meetings; absent such a request, no notice is required. See John Watkins, Arkansas Freedom of Information Act 299 (3d ed. 1998). Accordingly, we conclude that, because no media representatives in Sebastian County requested notification of any special or emergency meeting of the city officials of Huntington, § 25-19-106(b)(2) was not violated and the City’s April 10 meeting was valid.

As a final matter, we recognize that the City has raised two alternative arguments for reversal, namely, that the circuit court erred in invalidating the action taken by the city council during the April 10 meeting, and that it was error to award Burke attorney’s fees and costs. Because we reverse based upon the City’s first argument, we likewise conclude that the circuit court erred in invalidating the action taken by the city council at the April 10 meeting and in awarding Burke attorney’s fees and costs. Thus, we reverse and remand this case and direct the circuit court to enter an order consistent with this opinion.

       The FOIA authorizes a court to assess against the defendant attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make the award of those expenses unjust. See Ark. Code Ann. § 25-19-107(d) (Repl. 1996).


author: Donald L. Corbin, Justice.

text:
    Doyle Vandull “Roundman” SMITH v. STATE of Arkansas
    CR 98-1212
    988 S.W.2d 492
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      John R. Irwin, for appellant.

      Mark Pryor, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.
   Donald L. Corbin, Justice.

Appellant Doyle Vandull “Roundman” Smith appeals the judgment of the Conway County Circuit Court convicting him of first-degree murder, criminal use of a prohibited weapon, and felon in possession of a firearm and sentencing him to a concurrent term of fife imprisonment. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). Appellant’s sole contention on appeal is that the trial court erred in denying his motion for directed verdict on the charge of first-degree murder. Although he does not deny shooting twenty-eight-year-old Johnny McClelland, he asserts that the State failed to prove that he shot McClelland with the purpose or intent of causing his death. We find no error and affirm.

A motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. We consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Key v. State, 325 Ark. 73, 923 S.W.2d 865 (1996).

To sustain a conviction for first-degree murder, the State was required to prove that Appellant purposely caused the death of Johnny McClelland. See Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). “A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]” Ark. Code Ann. § 5-2-202(1) (Repl. 1997). A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997). The intent necessary to sustain a conviction for first-degree murder may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Id. It is axiomatic that one is presumed to intend the natural and probable consequences of his actions. Walker v. State, 324 Ark. 106, 918 S.W.2d 172 (1996). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Mulkey, 330 Ark. 113, 952 S.W.2d 149. For circumstantial evidence alone to constitute substantial evidence, it must exclude every other reasonable hypothesis consistent with innocence. Id.; Key, 325 Ark. 73, 923 S.W.2d 865. Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Id.

The record reflects that on or about December 18, 1997, Appellant shot and killed McClelland at the home of McClelland’s wife, Susan, in Morrilton. Appellant had been living with Susan and her children for about one month. Because Appellant did not deny shooting McClelland, the only issue we need determine is whether there is substantial evidence to support a finding that Appellant acted “[w]ith a purpose of causing the death of another person,” as required by section 5-10-102(a)(2). The following testimony, viewed in a light most favorable to the State, constitutes substantial evidence that Appellant purposely caused McClelland’s death.

Detective Phillip Russell Quinn, of the Morrilton Police Department, testified that he conducted the investigation of the crime scene at the McClelland home. He determined that the gun used by Appellant to shoot McClelland was a sawed-off, 12-gauge Mossberg shotgun that had been modified with a pistol grip. He indicated that it was a pump shotgun that had to be physically manipulated to force a shell into the chamber. On the date of the shooting, Quinn interviewed Appellant about the incident, and that interview was subsequently read to the jury. Appellant claimed that the shooting was accidental. He gave the following account of the incident to Quinn.

McClelland came to the house with another man, later identified as John Scott Birch. A fight ensued between McClelland and Appellant in the back bedroom, resulting in injuries to both men. During the fight, Appellant heard McClelland tell Birch to go out to the truck and get the gun. Appellant then grabbed the shotgun from a corner in the bedroom, and fired once into the ceiling to let them know that he had a gun. He then backed away from the bedroom doorway so that the two men could leave. The two men left the bedroom, went through the living room, and started into the dining room when Appellant turned the corner into the dining room and, according to Appellant, the gun accidentally discharged. He thought that he ran into the door facing or something else, forcing the gun to discharge. After McClelland had been shot, Appellant walked outside with the gun and said to Birch, “You know, you still want some?” Appellant told Quinn that at the time of the shooting, the two men were attempting to leave the house, and that he was following them because he thought they had a gun outside in their vehicle. Appellant admitted, however, that he never saw either McClelland or Birch with a gun in their possession. Quinn’s investigation confirmed that neither McClelland, Birch, nor Birch’s girlfriend, Shelly Higgins, possessed a gun — on their persons or inside McClelland’s truck.

Officer Brad Harness, of the Morrilton Police Department, testified that he conducted a pat-down search of Appellant, prior to placing him in a holding cell, and retrieved a .22-caliber Derringer pistol, with two five rounds of hollow-point ammunition in it. He stated that he retrieved the pistol from Appellant’s right front pants pocket. This evidence supported the prosecution’s theory that Appellant had the choice of defending himself with either gun, and that his decision to use the shotgun rather than the small-caliber gun was evidence of his purpose to kill McClelland.

Dr. Stephen Erickson, a medical examiner at the Arkansas State Crime Laboratory, stated that the victim died as a result of a single gunshot wound to the chest area. Specifically, Dr. Erickson stated that the shotgun blast entered the victim on the left side of his chest and that the pellets went from the left to the right, steeply upwards, and from back to front. He stated further that at the time of the shooting, the muzzle of the gun was placed in loose contact with the victim’s skin. He indicated that a .22-cali-ber bullet would have caused a lot less damage to the victim than a shotgun blast.

Shelly Higgins testified that on December 18, 1997, she, Birch, and McClelland were traveling from Memphis to their homes in Missouri when they stopped at Susan McClelland’s house in Morrilton. Higgins said that McClelland wanted to give his wife and kids some money for Christmas. They did not know that Appellant was at Mrs. McClelland’s house at the time. Higgins said that McClelland and Birch went into the house, and that she waited in the truck, while the motor was running, because they were not supposed to be there long. McClelland and Birch had only been inside the house for a few minutes when Higgins heard Mrs. McClelland yelling. Higgins then heard a gunshot and saw Birch come running out of the house. Birch asked Higgins where McClelland was, and she said that he had not come out of the house yet. Higgins heard another gunshot and saw McClelland come out of the house, where he fell to the ground. Higgins then saw Appellant come out of the house with a gun, yelling angrily at Birch, “Do you want me to shoot you, too? You want some, too?”

Birch testified that he went inside the house with McClelland, but that he initially waited in the dining room. He heard McClelland and Appellant fighting in the bedroom, and heard McClelland saying, “Let go of my hair. That’s my wife.” Birch then went into the bedroom and tried to break up the fight. Appellant had hold of McClelland’s hair, so Birch hit Appellant a few times to break up the fight. When Birch heard the first gunshot, he ran out of the house. Birch thought McClelland ran with him. When Birch made it outside, he asked Higgins where McClelland was. A few seconds later, Birch heard a gunshot and saw McClelland walk out the door.

Trooper Dewayne Luter, of the Arkansas State Police, testified about his interview with Mrs. McClelland’s fourteen-year-old daughter, the victim’s stepdaughter, Alicia Bradley. Luter stated that Alicia told him that she saw all three men in the dining room and that Appellant was holding the gun. She told Luter that “I turned around to go back in the bedroom cause [sic] I thought that they were gonna leave because they were walking toward the door and I turned around and I seen my stepdad laying on the ground.” Officer Joey Nutt, of the Morrilton Police Department, also took a statement from Alicia Bradley. He read the following part of that statement to the jury:

Alicia Bradley stated she came into the living room and was going to tell them to leave, the police are coming. She stated all of these men were in the southeast bedroom and [Appellant] had a gun. That he shot once to show them that it was loaded. And they started running out of the bedroom, through the living room toward the kitchen. And that [Appellant] shot the victim in the doorway between the living room and kitchen and the victim then ran outside.

Appellant did not take the stand in his own behalf. Instead, he relied on his statement to police, wherein he maintained that the shotgun discharged accidentally, striking McClelland. Additionally, Appellant urged the jury to consider that he was justified in shooting McClelland in self-defense, on the basis of his statements to Detective Quinn. On appeal, Appellant challenges the credibility of the State’s witnesses and contends that the jury had to rely on speculation and conjecture in order to find him guilty of this offense. We disagree.

In the first place, any conflicts or inconsistencies in the evidence were for the jury, as the trier of fact, to resolve, not for the trial court to resolve on a directed-verdict motion. Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996). In the second place, the foregoing testimony constitutes substantial evidence to support the jury’s verdict of first-degree murder. Perhaps the most damaging evidence was Higgins’s statement, which Appellant admitted making, that after McClelland came out of the house and fell to the ground, Appellant came outside with the shotgun in his hands and angrily asked Birch, “Do you want me to shoot you, too? You want some, too?” Additionally, there Was evidence that contradicted Appellant’s justification defense, namely that at the time of the shooting, the fight between the men was over, and McClelland and Birch were leaving. Alicia Bradley’s statement to Officer Nutt established this evidence, and Appellant said as much in his statement to Detective Quinn. Moreover, Appellant admitted that he never saw either McClelland or Birch with a gun in their possession.

The fact that the jury chose not to believe Appellant’s defense of accident or justification does not lessen the substantial nature of the evidence supporting his conviction of first-degree murder. One who asserts the defense of justification of a homicide must show not only that the person killed was using deadly physical force, but that he (the defendant) responded with only that force necessary and that he could not have avoided the killing. See Ark. Code Ann. § 5-2-607 (Repl. 1997); Williams, 325 Ark. 432, 930 S.W.2d 297. The jury was instructed accordingly by the trial court and rejected Appellant’s defense. This rejection is supported by the same evidence we discussed in affirming the jury’s finding that Appellant had acted purposefully in this case. The jury was entitled to believe the State’s witnesses and to disbelieve Appellant’s evidence. Solomon v. State, 323 Ark. 178, 913 S.W.2d 288 (1996).

Rule 4-3(h)

In accordance with Rule 4-3(h) of the Arkansas Supreme Court Rules, the record has been reviewed for adverse rulings objected to by Appellant but not argued on appeal, and no such reversible errors were found. For the aforementioned reasons, the judgment of conviction is affirmed.


author: Robert L. Brown, Justice.

text:
    Donald Ray DAWSON, Appellant v. TEMPS PLUS, INC., Appellee; Temps Plus, Inc., Cross-Appellant v. Donald Ray Dawson, Steve Dawson, Linda Ramsey, Melissa Trout, and Steve Dawson Employment Service, Cross-Appellees
    98-866
    987 S.W.2d 722
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999
    [Petition for rehearing denied May 20, 1999.]

      Reid, Burge, Prevallet & Coleman, by: Dan M. Burge, for appellant.

      Daniel G. Ritchey, for appellee/cross-appellant.
   Robert L. Brown, Justice.

Appellant Donald Ray Dawson appeals a judgment against him in the amount of $62,228.97 for breach of a covenant not to compete entered into with appellee Temps Plus, Inc., as well as intentional interference with contractual relationships and civil conspiracy. He contends on appeal that the covenant not to compete is invalid and not enforceable. Moreover, he contends that even if the covenant is valid, there was no breach and, alternatively, that no damages flowed from the breach. He further appeals from an award of attorney’s fees in the amount of $20,270.00 and claims that the award is excessive. We agree with the trial court that the covenant not to compete was valid and enforceable and that it was breached by Donald Ray Dawson. But we disagree with the trial court that Temps Plus proved any damages flowing from that breach. We further hold that the award of attorney’s fees is excessive, and we remand for reconsideration of that award in light of this opinion. Finally, we affirm the trial court’s decision to deny Temps Plus’s request to extend the injunction for breach of the non-compete agreement to the cross-appellees.

In 1994, Peggy Lemons was a former temporary employment agency employee living in Blytheville who wanted to start her own temporary-employment business. Because she did not have sufficient capital to do so, she invited appellant Donald Ray Dawson to invest in her business, Temps Plus, Inc., and he agreed. He purchased 49% of the issued stock for Temps Plus for $4,900 and loaned Lemons $35,100 on an unsecured promissory note, for a total investment of $40,000. Lemons purchased 51% of the stock of Temps Plus. The company was officially incorporated in June of 1994, and Lemons, as the incorporator, president, and general manager, began operating the business. Dawson was not involved in the day-to-day business operations although he was a member of the board of directors. He was never paid dividends, salary, or bonuses of any sort. The business was successful, and Lemons made plans to expand Temps Plus into South Carolina. Dawson did not approve of the out-of-state expansion, and he began negotiations with Lemons to sell his interest in the corporation.

In May of 1996, Temps Plus paid Dawson $95,000 for his forty-nine shares of stock in the corporation. The buyout sum included the balance due on the $35,100 promissory note and the $4,900 purchase price for the stock. As part of the stock sale, Dawson signed a receipt that included this language: “As part of the payment received by Donald Ray Dawson, and as additional consideration of this Agreement, Donald Ray Dawson agrees, that for a period of five (5) years from the execution of this Agreement, he will not directly or indirectly, whether as an owner, partner or employee, compete with Temps Plus, Inc., within a radius of seventy (70) miles from Blytheville, Arkansas.” Dawson testified at trial that he did not remember reading the covenant when he signed the sale documents. Blytheville had at least four other temporary employment agencies at the time.

In March of 1997, Donald Ray Dawson started his own temporary employment business in Blytheville. On March 30, 1997, he hired two of Temps Plus’s employees, Linda Ramsey and Melissa Trout, and began operation of Dawson Employment Agency. His temporary office was located at the local Holiday Inn. Over the next three days, Ramsey and Trout called potential temporary employees and contacted local companies that did business with Temps Plus to ask for their business. On April 2, 1997, Donald Ray Dawson received a certified letter from Lemons’s attorney demanding that he cease operating a temporary employment agency in violation of the covenant not to compete. After consulting with his attorney, he immediately ceased doing business.

Two weeks later, Steve Dawson, appellant’s brother, formed a corporation, Steve Dawson Employment Services, Inc. (hereinafter SDES), and went into the temporary employment business. He hired both Ramsey and Trout, paid for a computer program that his brother had ordered, and later rented office space in a building that his brother had built for his new business.

On April 23, 1997, Temps Plus sued Donald Ray Dawson, Steve Dawson, Linda Ramsey, Melissa Trout, and SDES for breach of contract, intentional interference with contractual relationships and business expectancies, theft of trade secrets, breach of the duty of loyalty, and civil conspiracy. Temps Plus sought a preliminary and permanent injunction prohibiting Donald Ray Dawson, SDES or any other company “through which Donald Ray Dawson is associated and through which Donald Ray Dawson attempts to circumvent the Non-Competition Agreement” from competing with Temps Plus within a seventy-mile radius of Blytheville. It further requested an injunction against Ramsey and Trout from disclosing information detrimental to Temps Plus and sought damages and attorney’s fees.

The various defendants filed counterclaims and motions to dismiss, and the case proceeded to trial. After six days of trial, the trial court upheld the covenant not to compete. The trial court pointed out that Donald Ray Dawson is the owner of several businesses, including a successful welding company that employs up to eighty-five people and was a customer of Temps Plus. The court determined that it was not unreasonable for Temps Plus to require a covenant not to compete in connection with the purchase of Dawson’s stock, since Lemons and Dawson had been in business together for almost two years. The trial court reasoned that the agreement would reassure Temps Plus that Dawson would not go into a competing business in the area. The court also found that the agreement was reasonable as to time and scope and was entered into for a legitimate purpose.

The court permanently enjoined Donald Ray Dawson from further violations of the covenant not to compete and also enjoined him from providing financial assistance, business advice, advertising, promotion of services, or any other assistance to SDES. In addition to the breach of the covenant not to compete, the trial court found against Donald Ray Dawson on the counts alleging intentional interference with contractual relationships and business expectancies and civil conspiracy. The court further found for Temps Plus and against Linda Ramsey on the counts of breach of loyalty and civil conspiracy. It awarded Temps Plus $62,228.97 against Donald Ray Dawson for lost business. In a separate order, it awarded attorney’s fees to Temps Plus totaling $20,270.00.

I. Covenant Not To Compete

Donald Ray Dawson first claims that the non-compete covenant is unenforceable because no consideration was exchanged for the covenant. He also maintains that these facts are not those of a typical non-compete controversy where a business has been sold with ancillary goodwill or when an employee has left. Thus, he contends that the agreement was not necessary to protect Lemons’s business and goodwill. He also takes issue with the covenant’s time constraint of five years and its geographic scope which encompasses an area defined by a seventy-mile radius extending around Blytheville.

We review chancery cases de novo and do not reverse a finding of fact by the chancery court unless it is clearly erroneous. See, e.g., Office of Child Support Erforcement v. Eagle, 336 Ark. 51, 983 S.W.2d 429 (1999); Clifford Family Ltd. Liability Co. v. Cox, 334 Ark. 64, 971 S.W.2d 769 (1998).

Without statutory authorization or some dominant policy justification, a contract in restraint of trade is unreasonable if it is based on a promise to refrain from competition that is not ancillary to a contract of employment or to a contract for the transfer of goodwill or other property. See Marshall v. Irby, 203 Ark. 795, 158 S.W.2d 693 (1942). However, the law will not protect parties against ordinary competition. See Orkin Extermination Co. v. Weaver, 257 Ark. 926, 521 S.W.2d 69 (1975). Covenants not to compete in employment contracts are subject to stricter scrutiny than those connected with a sale of a business. See Hyde v. C M Vending Co., 288 Ark. 218, 703 S.W.2d 862 (1986). The burden is on the party challenging the validity of a covenant to show that it is unreasonable and contrary to public policy. See Madison Bank and Trust v. First Nat’l Bank, 276 Ark. 405, 635 S.W.2d 268 (1982). We review cases involving covenants not to compete on a case-by-case basis. See Evans Laboratories, Inc. v. Melder, 262 Ark. 868, 562 S.W.2d 62 (1978).

Public policy favors competition and will not allow someone to buy off potential rivals and foreclose their competition in order to control a market where a promisee already participates in the business and a promisor does not. See John R. Pagan, Arkansas Courts and Covenants not to Compete, 12 U. Ark. Little Rock L.J. 57, 61 (1989-90). In this regard, the court of appeals has emphasized that a covenant not to compete will not be enforced unless a covenantee has a legitimate interest to be protected by the agreement. See Duffner v. Alberty, 19 Ark. App. 137, 718 S.W.2d 111 (1986). The test is whether the restraint imposed is greater than is reasonably necessary to protect the covenantee and whether it injures the public interest. See id.

In the case at bar, the trial court found that even though Temps Plus was not Donald Ray Dawson’s primary business, he had invested $40,000 in the agency and was associated with its operation. As an example, he used his business contacts in the community to promote Temps Plus and placed business cards at his welding shop to give to potential customers. He was fully informed about Temps Plus’s financial status, and, ultimately, his initial investment of $40,000 yielded him $55,000 ($95,000 less the $35,100 promissory note and the $4,900 loan). We conclude, as did the trial court, that Lemons had a legitimate business interest to protect with the non-compete agreement. Donald Ray Dawson was a local businessman who had the wherewithal to start a new business. Furthermore, he knew the temporary agency business and how profitable it could be in Blytheville. He also needed temporary employees on occasion for his own welding business.

We turn then to the second facet of this point, which is the duration and scope of the covenant. Donald Ray Dawson contends that restrictions of more than two years are highly suspect and violative of public policy. He further claims that the seventy-mile radius is far too restraining. We begin our analysis by noting that there is nothing inherently unreasonable about a five-year duration restriction. See Easley v. Sky, Inc., 15 Ark. App. 64, 689 S.W.2d 356 (1985). This court has upheld covenants not to compete lasting five years, ten years, twenty years, and without time limit. See Hyde v. C M Vending Co., supra. We are less likely to uphold a restriction that negatively affects a person’s potential employment and ability to earn a livelihood. See e.g., Miller v. Fairfield Bay, Inc., 247 Ark. 565, 446 S.W.2d 660 (1969) (refhsing to enforce a three-year, fifty-mile covenant not to compete for a real estate salesman); United Ins. Agency v. Martin, 258 Ark. 916, 529 S.W.2d 871 (1975) (holding a five-year, seventy-five-mile non-competition agreement invalid for an insurance salesman).

Again, we agree with the trial court that the geography and time constraints of the non-compete covenant were not unreasonable. Our caselaw has upheld restrictions with a five-year duration, and with respect to the geographical restriction, we conclude that it is reasonable under the circumstances. The seventy-mile radius covers territory where Temps Plus did business — Blytheville, Osceola, Manila, Paragould, and the cities of Hayti, Caruthersville, Malden, and Kennett in Missouri. Other courts have held that similar geographical restrictions are enforceable. See Keeley v. Cardiovascular Surgical Assoc., P.C., 510 S.E.2d 880 (Ga. Ct. App. 1999) (seventy-five miles); Midwest Television, Inc. v. Oloffson, 699 N.E.2d 230 (Ill. Ct. App. 1998) (one hundred miles); see also Easley v. Sky, supra, in which our court of appeals upheld a one-hundred-mile restriction. Moreover, it proved to be an easy matter for Donald Ray Dawson to hire Temps Plus employees and use their experience and his knowledge of the business to begin a competing business. He opened a rival business in the same city within one year after agreeing not to do so.

Donald Ray Dawson also vigorously argues that he did not sell the goodwill of Temps Plus to Lemons and, therefore, the restrictive covenant should not be applied to him. Lemons retained the goodwill, he maintains, in an ongoing business. Thus, the covenant was not ancillary to the sale of goodwill in a business and is unenforceable under Hyde v. C M Vending Co., supra, and Duffner v. Alberty, supra.

We disagree. Donald Ray Dawson, as a businessman in the Blytheville community, transferred a substantial equity interest in the business to Lemons — 49%. He put up substantial capital to begin the fledgling business and was identified with the business in the community, though he did not engage in the day-to-day business operations. Under these facts, we cannot say that his sale of a 49% interest in the temp agency, which involved his substantial association with the business, did not involve the transfer of goodwill. See Worldwide Auditing Services, Inc. v. Richter, 587 A.2d 772 (Pa. Super. 1991) (Pennsylvania Supreme Court upheld and enforced restrictive covenant ancillary to the sale of ten percent of the stock in the company by an officer.)

II. Breach of the Covenant

Donald Ray Dawson next claims that he did not violate the restrictive covenant because he was never involved in a competing temporary employment business in BlytheviUe. He claims that he had no temporary employees register with him for work and that he had no customers. He adds that he took in no income and made no expenditures over the three-to-four-day period he was in operation.

We note, nevertheless, that the trial court found in its order that “[i]n March, 1997, Defendant, Donald Ray Dawson, began doing business as Dawson Employment Service and hired Defendants [Linda] Ramsey and [Melissa] Trout to work for him.” Ramsey and Trout, of course, were hired away from Temps Plus. The trial court further found that Ramsey and Trout, while working for Donald Ray Dawson, “called and solicited the business of customers of Temps Plus, Inc.” They also took applications from temporary employees who wished to work for Dawson Employment Service. The proof showed that he purchased equipment for the business and rented space in which to operate. He stopped operations only when he received the letter from the attorney for Temps Plus.

Though the temporary agency was in its embryonic stages, we cannot say that the trial court clearly erred in finding that Donald Ray Dawson violated the non-compete agreement. See Ark. R. Civ. P. 52(b). He had an office, employees, a business name, and equipment, and his employees were soliciting business customers from Temps Plus. We consider this to be enough to sustain the trial court’s finding.

III. Damages

For his third point, Donald Ray Dawson urges that the damages of $62,228.97 awarded against him were excessive and that in the event a breach was affirmed, only nominal damages were appropriate. We agree.

In general, damages recoverable for breach of contract are those damages which would place the injured party in the same position as if the contract had not been breached. See Unigard Sec. Ins. Co. v. Murphy Oil USA, Inc., 331 Ark. 211, 962 S.W.2d 735 (1998); Rebsamen Companies, Inc. v. Arkansas State Hosp. Employee Fed. Credit Union, 258 Ark. 160, 522 S.W.2d 845 (1975). Damages must arise from the wrongful acts of the breaching party. See Arkansas Law of Damages, § 4-5 (3d ed. 1996). Moreover, the judgment must have some relationship to the damages proved. See Pennington v. Harvest Foods, Inc., 326 Ark. 704, 934 S.W.2d 485 (1996).

Consequential damages are defined as “[s]uch damage, loss or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act.” See Smith v. Walt Bennett Ford, Inc., 314 Ark. 591, 864 S.W.2d 817 (1993) (quoting First Service Corp. v. Schumacher, 16 Ark. App. 282, 702 S.W.2d 412 (1985)). Lost profits are recognized as a type of consequential damages. See Smith v. Walt Bennett Ford, Inc., supra. In breach-of-contract cases, consequential damages are recoverable when they were fairly within the contemplation of the parties. See Shamburger v. Moody, 322 F. Supp. 196 (E.D. Ark. 1970). Although recovery will not be denied merely because the amount of damages is hard to determine, damages must not be left to speculation and conjecture. See Pennington v. Harvest Foods, Inc., supra; Morton v. Park View Apartments, 315 Ark. 400, 868 S.W.2d 448 (1993).

In the instant case, the only breach of the covenant occurred during the three to four-day period when Donald Ray Dawson attempted to start a business — roughly March 30 through April 2, 1997. Because the two employees he hired from Temps Plus, Ramsey and Trout, were at-will employees, there was no breach of contract or wrongful conduct caused by that action. It is undisputed that even though he solicited customers, he did not obtain any business from Temps Plus customers during this brief period; nor did he sign up any of Temps Plus’s temporary employees.

It is apparent that Temps Plus did not prove that any of the damages it alleged arose from this breach by Donald Ray Dawson. Instead, it focused on the later actions by Steve Dawson and customers lost by Temps Plus to SDES. The trial court found that these damages flowed directly from Donald Ray Dawson’s actions because but for the opening of Don Dawson Employment Agency, Steve Dawson would not have opened SDES. The trial court also focused on the fact that Donald Ray Dawson leased a building to SDES.

We believe the trial court erred in this regard. Steve Dawson and SDES did not agree to a covenant not to compete with Temps Plus and were not in privity with Donald Ray Dawson. Thus, Steve Dawson and SDES were strangers to the contract, and any lost customers and profits incurred by Temps Plus due to competition by SDES were not the result of the breach of any contract by Donald Ray Dawson. See St. Paul Fire and Marine Ins. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W.2d 100 (1973). Furthermore, we do not view any lost business to SDES as a contingency contemplated by Lemons and Donald Ray Dawson at the time of the stock sale and the restrictive covenant so as to give rise to lost profits as damages. See Shamburger v. Moody, supra. Finally, we acknowledge that a non-signatory to a non-compete agreement may be bound under certain circumstances where the non-signatory conspired to breach a contract or acted in concert with the signatory to do so. See Gold Messenger, Inc. v. McGuay, 937 P.2d 907 (Colo. Ct. App. 1997); Norlund v. Faust, 675 N.E.2d 1142 (Ind. Ct. App. 1997). Here, though, the trial court did not find that Steve Dawson was bound by the restrictive covenant or acted as an alter ego for Donald Ray Dawson. It seems largely inconsistent for the trial court then to saddle Donald Ray Dawson for lost profits caused by a stranger to the contract.

In short, we conclude that damages flowing directly from any breach by Donald Ray Dawson during the three to four days of his business operation were not proved and are speculative at best. We reverse the trial court on this point.

IV. Attorney’s Fees

For his fourth argument, Donald Ray Dawson urges that the attorney’s fee award of $20,270 was excessive. We agree. By law, the prevailing party is entided to attorney’s fees in breach-of-contract cases. See Ark. Code Ann. § 16-22-308 (Repl. 1994). The trial court initially awarded attorney’s fees of $6,000 in an opinion letter, but in a later order, it reserved the issue for a subsequent hearing. By order dated April 24, 1998, the court awarded fees of $20,270 and stated in the order that it was taking the damages of $62,228.97 into consideration in awarding the higher fees.

We now have held that only nominal damages are appropriate in this case. Clearly, the fees awarded must be reviewed in that light as well as the other factors set out in Chrisco v. Sun Indus., 304 Ark. 227, 800 S.W.2d 717 (1990). We reverse the fee award and remand to the trial court for reconsideration of appropriate fees in light of this opinion.

V. Cross-Appeal

On cross-appeal, Temps Plus contends that there were sufficient facts for the trial court to extend the injunction to one or more of the remaining defendants. Temps Plus emphasizes that Donald Ray Dawson and Steve Dawson, either directly or indirectly, through the actions of Ramsey and Trout, have contacted virtually all of its customers and solicited their business. It further contends that Steve Dawson’s business is the same as Donald Ray Dawson’s four-day business, with the exception of the name. The two businesses had the same employees (Trout and Ramsey), the same location (Donald Ray Dawson’s building), same bank, same credit line, same computer equipment and software, and it claims, the same customers.

The grant or denial of an injunction is generally a matter within the discretion of the chancery court, and we do not reverse the court unless there has been a clearly erroneous factual determination, or unless the decision is contrary to a rule of equity or the result of an improvident exercise of judicial power. See Tri-County Funeral Serv. v. Eddie Howard Funeral Home, 330 Ark. 789, 957 S.W.2d 694 (1997); Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986).

We first observe that Temps Plus cites scarce legal authority in its brief to support this point and adduces no law on who may be restrained. It is axiomatic that a person who is not a party to a covenant not to compete is not liable for its breach. See Hyde v. C M Vending Co., supra. Furthermore, in order to establish sufficient grounds for a permanent injunction, the movant must show (1) that it is threatened with irreparable harm, (2) that this harm outweighs any injury which granting the injunction will inflict on other parties, (3) a likelihood of success on the merits, and (4) that the public interest favors the injunction. See Arkansas Wildlife Federation v. Bekaert Corp., 791 F. Supp. 769 (W.D. Ark. 1992).

Temps Plus has not shown a likelihood of success on the merits and cannot show that the public interest favors the injunction. For one thing, we underscore again that only Donald Ray Dawson agreed to the covenant not to compete. Steve Dawson, SDES, Ramsey, and Trout never agreed to such a restriction with Temps Plus. Nor were they bound to the covenant by virtue of being in privity of contract with Donald Ray Dawson. See, e.g., Taylor v. Dierks Lumber & Coal Co., 183 Ark. 937, 39 S.W.2d 724 (1931).

Finally, there was nothing to restrain Steve Dawson, SDES, and its employees from competing with Temps Plus. True, SDES may have been the successor business to Donald Ray Dawson’s operation, but Temps Plus’s covenant not to compete in no wise restricted SDES or its employees. Absent a restrictive agreement, this court will not shackle the privilege to engage in legitimate competition by extending a non-compete agreement to third parties. See Vigoro Industries, Inc. v. Cleveland Chem. Co., 866 F.Supp. 1150 (E.D. Ark. 1994).

Affirmed in part. Reversed in part and remanded.

Affirmed on cross-appeal.


text:
    Bettie Katherine SHIVEY v. Kenneth Paul SHIVEY
    98-1366
    987 S.W.2d 719
    Supreme Court of Arkansas
    Opinion delivered April 15, 1999

      Samuel A. Perroni, for appellant.

      H. Oscar Hirby, for appellee.
   Robert L. Brown, Justice.

Appellee Kenneth Paul Shivey moved to dismiss the appeal filed by appellant Bettie Katherine Shivey on several grounds. The court of appeals granted the motion to dismiss, and appellant petitioned for a review of the dismissal in this court. We granted review on January 21, 1999. When we grant review, we consider the matter as if the appeal, or in this case the motion, were originally filed in this court. See Youngman v. State Farm Mut. Auto Ins., 334 Ark. 73, 971 S.W.2d 248 (1998).

The facts of the case are these. On October 3, 1997, a hearing was held before the Conway County Chancery Court to determine whether the appellee should have his child support obligation modified. The chancery court granted the modification, which decreased the amount of child support, and awarded it retroactively to June 17, 1997. It was first believed that the order was signed and filed on October 31, 1997. The parties later discovered that the original order had not been filed with the chancery clerk on that date. On April 8, 1998, the order modifying child support was filed. On April 20, 1998, appellant filed an Ark. R. Civ. P. 60 motion and contended that the order did not correctly reflect the chancery court’s ruling in that it allowed for a retroactive modification and, thus, fraud had been practiced on the court. The chancery court never ruled on this motion.

On June 18, 1998, appellant filed a notice of appeal. On October 5, 1998, appellee filed his motion to dismiss the appeal based on three grounds: (1) the notice of appeal was untimely, (2) the notice of appeal was insufficient because it did not contain a statement by the appellant that she had made financial arrangements with the court reporter as required by Ark. R. App. P.— Civil 3(e), and (3) the appellant did not properly state the points she was relying on for appeal. On October 28, 1998, the court of appeals granted appellee’s motion and dismissed the appeal. The appellant filed a petition for reconsideration, and the court of appeals clarified the reasons for its dismissal in a per curiam opinion dated December 16, 1998. Shivey v. Shivey, CA 98-1127 (December 16, 1998) (per curiam). In that opinion, the court stated:

Appellant’s motion to reconsider is premised on the erroneous belief that we dismissed the appeal for the second of the three grounds stated in appellee’s motion to dismiss. In fact, our decision to dismiss was based on appellee’s primary argument: that appellant’s notice of appeal was untimely under Rule 4.

In her petition for review filed in this court, the appellant argues that her Rule 60 motion extended the time for filing the notice of appeal. We disagree. Our appellate rules state:

(a) Except as otherwise provided in subsequent sections of this rule, a notice of appeal shall be filed within thirty (30) days from the entry of the judgment, decree or order appealed from. . . .
(b) Upon timely filing in the trial court of a motion for judgment notwithstanding the verdict under Rule 50(b), of a motion to amend the court’s findings of fact or to make additional findings under Rule 52(b), or of a motion for a new trial under Rule 59(b), the time for filing the notice of appeal shall be extended as provided in this rule.

Ark. R. App. P.—Civil 4(a) and (b).

It is clear to this court that the appellant did not file her notice of appeal on time. Her notice of appeal was filed on June 18, 1998, which was seventy-one days after the April 8, 1998 order was entered. She did file a Rule 60 motion after the order was entered, but that motion clearly did not extend the time for filing her notice of appeal. By its plain language, Appellate Rule 4(b) provides that the only motions that will extend the time for filing a notice of appeal are a motion for JNOV pursuant to Rule 50(b), a motion to amend the court’s findings of fact or to make additional findings of fact under Rule 52(b), and a motion for new trial under Rule 59(b).

The appellant continues, however, that because the chancery court did not rule on her Rule 60 motion, it was deemed denied after the expiration of thirty days from its filing. Thus, since it was filed on April 20, 1998, it was deemed denied on May 20, 1998. She reasons that her notice of appeal was timely filed on June 18 — twenty-nine days after the motion was deemed denied. But, again, Rule 4(c) specifically states that if a timely motion “listed in section (b) of this rule” is filed in the trial court, the time for appeal shall run from the entry of the order granting or denying the motion. A Rule 60 motion is not listed in section (b) of the rule.

Because we decide this matter based on the untimeliness of the notice of appeal, we need not address the other deficiencies alleged by appellee regarding the notice of appeal. We point out, however, that the requirement for the financial arrangements language to be included in a notice of appeal has been stricken. In Re Rule 3, 336 Ark. 645 (1999) (per curiam).

Motion granted and appeal dismissed.

Imber, J., not participating.