author: Robert M. Cearley, Jr., Special Chief Justice. Tom Glaze, Justice, Jerry D. Pinson, Special Justice,

text:
    FIRST NATIONAL BANK of Crossett, Crossett, Arkansas v. Richard E. GRIFFIN
    91-65
    832 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992
    [Rehearing denied September 28, 1992.]

      Arnold, Hamilton & Streetman, by: Thomas S. Streetman, for appellant.

      Hopkins Law Firm, by: Gregory M. Hopkins, for appellee.

       Glaze, J., and Special Justice Jerry Pinson would grant rehearing. Holt, C. J., and Dudley and Brown, JJ., not participating.

   Robert M. Cearley, Jr., Special Chief Justice.

This is a suit on a guaranty. Our jurisdiction is pursuant to Rule 29(c) as the case involves the interpretation or construction of an act of the General Assembly, namely, 1961 Ark. Acts 185, § 3-606. Appellant, First National Bank of Crossett (the Bank), raises three issues on appeal. First, it argues that the trial court erred in admitting parol evidence to vary the terms of the guaranty agreement which, it maintains, is clear and unambiguous. Second, it argues that the impairment of collateral defense contained in Ark. Stat. Ann. § 85-3-606 (Add. 1961) (currently Ark. Code Ann. § 4-3-606 (1987) (repealed 1991)), is not available to one who executes a separate guaranty and, alternatively, that the defense was waived by the express language of the guaranty agreement. Third, it argues that the trial court erred in failing to award an attorney’s fee pursuant to the terms of the guaranty agreement. We reverse and remand.

FACTS

On May 1, 1986, the Bank loaned Bearhouse, Inc. $490,000.00. The note was payable on demand or on May 1, 1987, and was secured by a mortgage on Ashley County real estate on which was situate a grain warehouse and office. Bearhouse stock was owned in equal shares by Appellee Richard E. Griffin, Cockrum, Couch and Young. Each was an officer and director of the corporation. The Bank required that each shareholder execute a separate guaranty agreement guaranteeing payment of 25 % of the Bearhouse note. Before the note matured, Bearhouse closed its business in Ashley County and ceased operations. Bearhouse was later placed in involuntary bankruptcy and defaulted on the note. The Bank made demand upon each of the guarantors to pay his pro rata share of the debt. No payment was made and the Bank sued each of the guarantors. Couch filed bankruptcy and the proceedings were stayed as to him. Appellee Griffin answered alleging that the Bank had impaired the collateral by failing to properly perfect its security interest and failing to realize upon the collateral in a commercially reasonable manner, resulting in his release pursuant to Section 85-3-606. Griffin counterclaimed alleging misrepresentation, negligence, and breach of fiduciary duty. The Bank contended (1) that the defense of impairment of collateral does not apply to a party who executes a separate guaranty, and (2) that Griffin waived the defense under the express wording of the guaranty agreement.

The Bank moved for summary judgment. Cockrum and Young failed to appear at the hearing on the motion for summary judgment and summary judgment was granted as to each of them in the amount of $162,224.61. Griffin filed a response to the motion but did not file counter affidavits or other evidence in opposition. The motion was taken under advisement but never decided.

The case was tried to the court without a jury on February 13,1990. The evidence established that, as of that date, there was due and owing on the note $683,413.91, including $490,000.00 in principal, plus accrued interest, and advances for taxes and insurance and attorney’s fees. Griffin was allowed to testify, over the objection of the Bank, that he had held separate discussions with an officer of the Bank prior to the execution of the guaranty and that Griffin had only agreed to guarantee 25% of any deficiency. Griffin further testified that the value of the collateral was at least $450,000.00 at the time of the bankruptcy of Bearhouse and that, if the guarantors had been allowed to sell the property at that time, his share of the resulting deficiency would have been $17,000.00. The trial court held, in a three sentence opinion, that Griffin owed $17,000.00. of the original debt plus interest from the date of default. Judgment was entered in favor of the Bank in the amount of $17,000.00. From that Judgment comes this appeal.

I. PAROL EVIDENCE

The parol evidence rule prohibits introduction of extrinsic evidence, parol or otherwise, which is offered to vary the terms of a written agreement. It is a substantive rule of law rather than a rule of evidence. Its premise is that the written agreement itself is the best evidence of the intention of the parties. In Farmers Coop. Ass’n v. Garrison, 248 Ark. 948, 952, 454 S.W.2d 644, 646 (1970), we said: “It is a general proposition of the common law that in the absence of fraud, accident or mistake, a written contract merges, and thereby extinguishes, all prior and contemporaneous negotiations, understandings and verbal agreements on the same subject.” On the other hand, the parol evidence rule does not prohibit the introduction of extrinsic evidence where it would aid the court in interpreting the meaning of particular language of a contract, such as when the contract contains terms of art or words which have acquired their meaning through a course of dealing or custom or usage. Les-Bil, Inc. v. General Waterworks Corp., 256 Ark. 905, 511 S.W.2d 166 (1974). Nor does the parol evidence rule prohibit the court’s acquainting itself with the circumstances surrounding the making of the contract. Stokes v. Roberts, 289 Ark. 319, 711 S.W.2d 757 (1986); Schnitt v. McKellar, 244 Ark. 377, 427 S.W.2d 202 (1968). The initial determination of the existence of ambiguity rests with the court and, if the writing contains a term which is ambiguous, parol evidence is admissible and the meaning of the ambiguous term becomes a question of fact for the factfinder. C & A Constr. Co., Inc. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974).

The Bank contends that the trial court erred in admitting parol evidence to vary the terms of the guaranty agreement which, it maintains, is clear and unambiguous. Each guaranty agreement was prepared on a printed form. The printed language in each form is identical. The guaranty agreement executed by Griffin contains the following typewritten language: “guarantee (sic) limited to 25% of outstanding debt.” The other three guaranty agreements contain the following language which is typewritten: “GUARANTEE (sic) LIMITED TO 25% OF TOTAL INDEBTEDNESS.” Griffin first argued in the trial court and here that the language of the guaranty agreement which he executed is clear and unambiguous and that the term “outstanding debt” limits his liability to only 25 % of the amount outstanding after application of proceeds from the sale of collateral. Alternatively, Griffin urged that the term “outstanding debt” is ambiguous and that parol evidence is therefore admissible to establish the intention of the parties.

We cannot agree to either proposition. In reaching our conclusion, we apply three well-established principles of contract law. First, as we have long recognized, the first rule of interpretation of a contract is to give to the language employed the meaning which the parties intended. Lee Wilson & Co. v. Fleming, 203 Ark. 417, 156 S.W.2d 893 (1941). Second, in construing any contract, “[w]e must consider the sense and meaning of the words used by the parties as they are taken and understood in their plain, ordinary meaning.” Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Milburn, 269 Ark. 384, 386, 601 S.W.2d 841, 842 (1980). Third, “[different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible, and, giving effect to one clause to the exclusion of another on the same subject where the two are reconcilable, is error.” Continental Casualty Co. v. Davidson, 250 Ark. 35, 41, 463 S.W.2d 652, 655 (1971). In Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 144-145, 20 S.W.2d 611, 613 (1929), we set out the rules of construction to which we have consistently adhered:

It is also a well-settled rule in construing a contract that the intention of the parties is to be gathered, not from particular words and phrases, but from the whole context of the agreement. In fact,it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from the beginning to end, and all its terms must pass in review, for one clause may modify, limit or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. [Citation omitted].

We must then look to the contract as a whole and the circumstances surrounding its execution to determine the intention of the parties.

The guaranty agreement here contains the following language:

This guaranty shall be a continuing, absolute and unconditional guaranty. . . .
Said Bank shall have the exclusive right to determine how, when and what application of payments and credits, if any, shall be made on said indebtedness, obligations and liabilities, or any part of them. In order to hold the undersigned liable hereunder, there shall be no obligation on the part of said Bank at any time to first resort to, make demand on, file claim against, or exhaust its remedies against the Debtor, any one or more of the undersigned, or other persons or corporations, their properties or estates, or to resort to and exhaust its remedies against any collateral, security, property, liens or other rights whatsoever. [Emphasis added.]

Construing the guaranty agreement as a whole, as we must, we find it clear and unambiguous. The dictionary definition of the term “outstanding” includes the terms “undischarged,” “uncollected” and “unpaid.” The plain language of the agreement provides that the Bank may call upon the guarantor to honor his guaranty without first resorting to remedies against the debtor, other guarantors or collateral. It is simply not possible to equate “outstanding debt” to “deficiency,” as Griffin urges, without closing our eyes to the other provisions of the contract. Griffin points to the difference in the language of the guaranty executed by him and that executed by the other guarantors as supporting his argument. All four guaranty agreements were prepared from the same form. They differ only in the typewritten language quoted above. Griffin executed his guaranty the day before the other three guarantors. He was at the time, and had been for over 20 years, chairman of the board of another bank and a respected attorney. There is nothing about the circumstances surrounding the execution of the guaranty which is supportive of the tortured definition of the term “outstanding debt” that is urged here. We can ascribe no different meaning to that term that we ascribe to the term “total indebtedness” when read in the context of this agreement. We hold that, under either wording, the guarantor is obligated to pay the designated percentage of all sums due pursuant to the terms of the guaranty agreement. To hold otherwise would render a substantial portion of the language of the guaranty agreement totally ineffectual.

Finding no ambiguity, we hold the parol evidence should not have been admitted. While Griffin counterclaimed alleging misrepresentation, a claim which would have supported the admission of parol evidence, the trial court entered no finding on the claim and no cross-appeal was taken. Therefore, extrinsic evidence of intentions or antecedent agreements at variance with the terms of the contract should not have been admitted. The trial court erred in allowing its admission. We therefore reverse and remand for a new trial.

Although we reverse on the Bank’s first argument, we address its second and third arguments to the extent they may arise on the remanded new trial.

II. IMPAIRMENT OF COLLATERAL DEFENSE

Griffin argued successfully in the trial court that the Bank’s negligence caused a two-year delay in the sale of the collateral during which it declined in value, and that, pursuant to Section 85-3-606, his obligation under the guaranty is discharged. We held in Myers v. First State Bank of Sherwood, 293 Ark. 82, 732 S.W.2d 459 (1987), that this statutory provision has no application where one executes a separate guaranty.

Additionally, the guaranty here provides that, “This guaranty shall be a continuing, absolute and unconditional guaranty. . .’’In Lindell Square Ltd. Partnership v. Savers Fed. Sav. & Loan Ass’n, 27 Ark. App. 66, 76, 766 S.W.2d 41, 47 (1989), the Court of Appeals was called upon to determine whether the parties to a guaranty intended that the guarantor would be liable for the amount due on bonds at the time of default or for only the deficiency remaining after resorting to other security. The guaranty there likewise provided that the guarantor’s obligations were unconditional and absolute.In holding that the guarantor’s liability was intended to be in addition to and independent of other security, the court noted our decision in Bank of Morrilton v. Skipper, Tucker & Co., 165 Ark. 49, 263 S.W.54 (1924), in which we said, “Under an absolute guaranty, the liability of the guarantor becomes fixed upon the debtor’s default.”

The guaranty agreement here also contains the following provisions:

All diligence in collection or protection, and all presentment, demand, protest and/or notice, as to any and everyone, of dishonor and of default and of non-payment and of the creation and existence of any and all of said indebtedness, obligations and liabilities, and of any security and collateral therefor, and of the acceptance of this guaranty, and of any and all extensions of credit and indulgence hereunder, are hereby expressly waived.
No act of commission or omission of any kind, or at any time, upon the part of said Bank in respect to any matter whatsoever, shall in any way affect or impair this guaranty.

The clear language of the guaranty agreement indicates that the guarantor’s liability was intended to be absolute and unconditional — the guaranty agreement so provides. Any recourse against collateral was clearly intended to be in addition to rights against the guarantor who expressly waived any defense based upon impairment of collateral.

III. ATTORNEY’S FEE

The Bank argues, pursuant to Ark. Code Ann. § 4-56-101 (Repl. 1991), which expressly authorizes enforcement of such a provision in a promissory note, that the Bank is entitled to recover attorney’s fees not to exceed ten percent of the amount of principal and accrued interest as provided in the Bearhouse note. We do not consider the provision in the promissory note because the Bank has failed to abstract the pertinent language as required by Supreme Court Rule 9. However, the guaranty agreement provides that the guarantor agrees:

to pay all expenses, legal and/or otherwise (including court costs and attorney’s fees, paid or incurred by said Bank in endeavoring to collect such indebtedness, obligations and liabilities, or any part thereof, and in enforcing this guaranty).

We have held many times that, notwithstanding that the parties have contracted for the payment of attorney’s fees, such fees cannot be recovered unless expressly provided for by statute. Damron v. University Estates, Phase II, Inc., 295 Ark. 533, 750 S.W.2d 402 (1988); Harper v. Wheatley Implement Co., 278 Ark. 27, 643 S.W.2d 537 (1982); Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Romer v. Leyner, 224 Ark. 884, 277 S.W.2d 66 (1955). Prior to the enactment of 1987 Ark. Acts 519, now codified at Ark. Code Ann. § 16-22-308 (Supp. 1991), the circumstances under which a party could recover attorney’s fees were severely restricted. Act 519 of 1987 provides that in any civil action of a class enumerated therein, “the prevailing party may be allowed a reasonable attorney fee to be assessed by the court and collected as costs.” The classes of civil action to which Act 519 applies were expanded by amendment by 1989 Ark. Acts 800 which added actions for breach of contract. The legislature has thus granted to the courts the discretion to award a reasonable attorney’s fees to a prevailing party under specific circumstances even absent agreement of the parties providing for payment of such fees. This grant of authority to award such fees absent agreement between the parties implicitly authorizes the courts to enforce such an agreement between the parties where one exists, as long as the other conditions of the statute are met. We have held that the statute should be given retrospective application. Barnett v. Arkansas Transport Co., 303 Ark. 491, 798 S.W.2d 79 (1990); City of Fayetteville v. Bibb, 30 Ark. App. 31, 781 S.W.2d 493 (1989). The failure to award a reasonable attorney’s fee here was error. Upon remand, the trial court should award an appropriate attorney’s fee pursuant to the agreement of the parties.

Reversed and remanded.

William S. Miller, Jr., Special Justice, joins in this opinion.

Glaze, J., and Jerry D. Pinson, Special Justice, dissent.

Holt, C. J., and Dudley and Brown, JJ., not participating.

Tom Glaze, Justice,

dissenting. The factual issue is whether the appellee, Richard E. Griffin, could testify concerning the meaning of the term “outstanding debt’ as used in a guaranty given him to sign by the appellant, First National Bank of Crossett (Bank). Griffin and three other men were shareholders of Bearhouse, Inc., which secured a loan from the Bank. These four shareholders guaranteed payment of Bearhouse’s note to the Bank. The primary legal issue in this appeal is well-framed by Special Associate Justice Jerry D. Pinson in his dissent, viz., whether the trial court abused its discretion in allowing Griffin to testify.

Special Justice Pinson points out that Griffin’s guaranty form as written and furnished by the Bank was ambiguous. He emphasizes the obvious, stating the term “outstanding indebtedness” employed in Griffin’s guaranty differs from the wording “total indebtedness” used in the guaranties signed by the other three shareholders. This difference alone raises the question, what did the parties intend by using these dissimilar terms?

As the majority correctly mentions in its opinion, the term “outstanding indebtedness” in Griffin’s guaranty also conflicts with another provision contained in the same guaranty. That provision authorizes the Bank to demand Griffin to honor his guaranty without the Bank first attempting to satisfy the Bearhouse debt from other sources. Clearly, the term “outstanding indebtedness” suggests (as Griffin testified) that Griffin would be liable for any remaining Bearhouse debt after the Bank sought its other available legal remedies. Obviously, because of these conflicting terms, confusion exists concerning which provision controls — the “outstanding indebtedness” restriction that limited Griffin’s liability to a deficiency amount determined after the Bank pursued its other remedies or the guaranty provision allowing the Bank to go directly against Griffin.

Instead of recognizing the Bank’s and Griffin’s right to explain why they used these terms and provisions in Griffin’s guaranty, the majority summarily concludes the term “outstanding indebtedness” had to mean “total indebtedness” or else the guaranty provision providing the Bank did not have to first resort to other remedies would be rendered “totally ineffectual.” I suggest such a conclusion strains logic. Such rationale could just as easily be used to support Griffin’s position — the term “outstanding indebtedness” should control or else its meaning would be rendered “totally ineffectual” by the provision permitting the Bank to hold Griffin liable without first seeking its other collection remedies.

The majority opinion simply ignores the issue as to whether the trial court had the discretion to allow the parties to testify regarding what the they intended by using the terms they did in the Griffin guaranty instrument. While parol evidence is not admissible to vary the terms of a written contract, it is admissible to show what the parties intended by the language adopted. Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S.W.2d 729 (1928). Here, Griffin’s testimony did not vary the term “outstanding indebtedness,” but instead explained why that term was used rather than “total indebtedness.”

In support of its decision, the majority court cites the case of Fowler v. Unionaid Life Ins., 180 Ark. 140, 20 S.W.2d 611 (1929), for the rule that, in construing a contract, the intention of the parties is to be gathered, not from particular words and phrases, but from the whole court of the agreement. The rule relied upon by the court concludes as follows:

Seeming contradictions must be harmonized, if that course is possible. Each of its provisions must be considered in connection with the others and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions.

At the risk of being repetitious, the majority court recognized the common meaning of “outstanding indebtedness,” which would require the Bank to seek its other legal collection remedies before it looked to Griffin for payment. Nevertheless, it declined to give effect to the true meaning of “outstanding indebtedness” and instead, like Houdini, the majority magically construes that term to mean “total indebtedness” because that latter term is more consistent with the guaranty provision allowing the Bank to go directly against Griffin for payment of the Bearhouse note. By such tortured logic, the majority purports to give effect to all of the provisions of Griffin’s guaranty, yet such a construction altogether eradicates from the guaranty the important term “outstanding indebtedness,” which term’s common sense meaning limited Griffin’s liability to the Bank in this matter. In other words, the majority court’s construction of the Griffin guaranty gives no effect or substance to this term which was specifically inserted by the parties into the Bank’s guaranty form. Such a construction is certainly inconsistent with the precedent cited in the majority opinion.

In conclusion, the trial court did not abuse its discretion when confronted with these facts. Griffin signed his guaranty form at a different time and place than the other three shareholders, and as Special Justice Pinson point out, Griffin’s interest in Bearhouse’s day-to-day operation was limited. As a consequence, Griffin had good reason to limit his liability as he tried to do. The trial court had every right to hear testimony bearing on the parties’ intent when they signed these instruments. In doing so, the court determined the parties limited Griffin’s liability to the outstanding debt or deficiency amount remaining after the Bank otherwise exhausted its other remedies and sources of payment. Because I believe the trial court did not abuse its discretion in allowing Griffin’s testimony concerning the parties’ intent, I would affirm.

Jerry D. Pinson, Special Justice,

dissenting. The real issue in this case is whether the trial court abused its discretion and committed error in finding the Griffin guaranty to be ambiguous and therefore allowing parol evidence to be admitted. The majority construed the guaranty agreement as a whole and found it clear and unambiguous. In coming to this conclusion, the majority found the term “outstanding debt” as used in the Griffin guaranty meant the same as “total indebtedness”, as used in the other three guaranties. The majority court gave a tremendous amount of weight to the fine print boiler plate provisions of the form guaranty.

This court has stated on numerous occasions that the initial determination of the existence of an ambiguity rests with the court and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the fact finder. C. & A. Construction Company v. Benning Construction Company, 256 Ark. 621, 509 S.W.2d 302 (1974). All four guaranty agreements were prepared from the same form. All four guaranties were signed within one day of each other. Why was the typed portion of Griffin’s guaranty different than the other three if they all meant the same? Edward L. Holt, President of First National Bank of Crossett, the appellant, testified that a representative of the bank delivered the guaranty to Griffin to execute. There was also testimony to indicate that the bank prepared all four guaranties. There is absolutely no evidence that Griffin prepared the guaranty. It is a well established rule of contract law that documents that contain ambiguities will be construed against the party who drafted them. Barton v. Perryman, 265 Ark. 228, 577 S.W.2d 596 (1979). The Court of Appeals stated in B.F. Shamburger v. The Union Bank of Benton, 8 Ark. App. 259, 650 S.W.2d 596 (1983) that the rule in Arkansas with respect to an interpretation of a guaranty agreement is that the guarantor is entitled to have his undertaking strictly construed and he cannot be held liable beyond the strict terms of his contract.

The majority’s rationale in the instant case that the fact that Griffin was at the time, and had been for over 20 years, Chairman of the Board of another bank and a respected attorney is much more supportive of the fact that Griffin would discern the difference in the terms “outstanding debt” and “total indebtedness”. Also, it was very rational for the Griffin guaranty to be less than the other three guarantors in that Griffin was the only one of the four guarantors that wasn’t a full time employee of the company.

The record clearly reflects that an ambiguity was created by the appellant in using the term “outstanding indebtedness” in appellee’s guaranty and the term “total indebtedness” for the other guarantors in the same transaction. Parol evidence is admissible to resolve an ambiguity in a contract to determine that particular meaning the parties intended the ambiguous provision to have. Shamburger v. The Union Bank of Benton, supra.

I am of the opinion that the trial court did not abuse its discretion and commit error in finding the Griffin guaranty to be ambiguous and therefore allowing parol evidence to be admitted. I respectfully dissent.

Glaze, J. joins in this dissent.


source: Caselaw Access Project

author:
Tom B. Smith, Special Justice.
      Per Curiam.

license: Public Domain

text:
    David ORSINI v. LARRY MOYER TRUCKING, INC.
    91-168
    833 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992
    [Supplemental Opinion on Denial of Rehearing October 12, 1992.]

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by: M. Stephen Bingham, for appellant.

      Hopkins Law Firm, by: Patrick R. James, for appellee.

       Brown, J., not participating.

   Tom B. Smith, Special Justice.

This legal malpractice case was brought by Larry Moyer Trucking, Inc., Appellee, against his former attorney, David Orsini, Appellant. From 1983 to 1989, Appellant represented Appellee in numerous cases. While acting as attorney for Appellee, Appellant filed separate complaints in cases involving Law and Dalrock. These cases had been pending for more than three years when Appellee hired new legal counsel and relieved Appellant of his duties. The new counsel proceeded to try the pending law suits and obtained judgments which proved to be uncollectible due to the insolvency of the judgment debtors.

Appellant represented Appellee on an administrative claim (Lawrence Brothers) before the Arkansas Highway and Transportation Department. The administrative claim was denied. Appellee was notified of arbitration rights, but the notice for arbitration was not timely filed.

Appellee’s case against Appellant was tried before a jury and Appellee received a verdict against Appellant. Judgment was entered for $30,669 on the Law case, $1,825 on the Lawrence Brothers claim, $5,678 on the Dalrock case, and $100,000 punitive damages in connection with the Lawrence Brothers case. The trial court denied Appellant’s Motion for Directed Verdict, Motion for Judgment NOV, and Motion for New Trial.

Appellant presented several points for reversal. Appellant argues the Trial Court erred by (1) submitting the issue of punitive damages to the jury in connection with the Lawrence Brothers case, (2) failing to grant a judgment notwithstanding the verdict or a new trial on the claims relating to the Law and Dalrock cases because the evidence was insufficient to support the verdicts, (3) not dismissing the malpractice claims based upon the Law and Dalrock cases as they were barred by the statute of limitations, (4) prohibiting Appellant from testifying about statements made by Appellees’ ex-wife, (5) refusing to allow Appellant’s wife to testify as a fact witness at trial on the grounds that she had attended several depositions relating to the case, (6) failing to disqualify Appellee’s law firm, and (7) refusing to give Appellant’s requested non-AMI jury instructions.

Appellee contends on cross-appeal that the Trial Court erred by (1) refusing to allow into evidence the Model Rules of Professional Conduct, (2) failing to submit his conversion claim to the jury, and (3) refusing to allow an expert witness whose name had been provided to Appellant only a week before trial to testify. We reverse and remand the case, holding the Trial Court erred in submitting the issue of punitive damages to the jury. We find no substantial evidence to support the award based upon the Dalrock case, and the portion of the judgment of this claim is reversed and dismissed.

Punitive damages were awarded based on the Lawrence claim. The jury awarded $1,825 compensatory and $100,000 punitive damages. Appellee claims that Appellant failed to file in a timely fashion the notice of arbitration, and therefore it was barred from recovery. Only when evidence indicates that a person acted wantonly in causing injury or with such conscious indifference to the consequences that malice may be inferred, will punitive damages be awarded. National ByProducts v. Searcy, 292 Ark. 491, 721 S.W.2d 194 (1987). Gross dereliction of duty does not warrant punitive damages. There must be proof of intentional wrong or conscious indifference to the consequences from which malice may be inferred. Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970). Because we find the record devoid of evidence of a clear and convincing nature that the Appellant acted with such conscious indifference or acted wantonly, it was error to submit to the jury the question of punitive damages. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992).

There is evidence beyond speculation to make a jury question of damages on the Law case. In the case of KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702 (1983), we held that where the issue of punitive damages is erroneously submitted to the jury, together with the defendant’s financial condition, an award of compensatory damages is tainted and cannot stand. Even though the jury awarded less in the Law case than was prayed for, the submission of the punitive damages issue allowed otherwise non-admissible financial evidence to be considered by the jury. The award of compensatory damages in the Law case must, therefore, be reversed.

The long established rule of law in Arkansas is that damages will not be allowed where they are speculative, based on conjectural evidence or the opinions of the parties or witnesses. The evidence must support the conclusions of the trier of fact. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983); Lewis v. Crowe, 296 Ark. 175, 752 S.W.2d 280 (1980). The record before the Court is devoid of any evidence to support the verdict in the Dalrock case (listed as “Other” on the Judgment). The portion of the judgment for this claim is reversed and dismissed.

Ark. Code Ann. § 16-56-105 establishes a three year statute of limitations which begins when the negligence occurs, not when it is discovered by the client. Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). At times, the beginning of the occurrence is a law question to be determined by the Court. At other times, it is a fact question for the jury to determine. The Complaints in the Dalrock and Law cases were filed in August of 1985 and May of 1986, respectively. The Dalrock and Law cases were not tried until counsel was changed. The suits were still active and valid. The judgments were uncollectible because of the insolvency of the debtors. There is no specified or statutory limitation of time within which to try a law suit. Appellee’s expert testified that the case should have been tried within nine months of filing of the Complaints. In other words, the Dalrock case should have been tried by May of 1986, and the Law case should have been tried by February of 1987. Appellant argues the Appellee had three years from these dates to bring suit, and since he did not, the claims are barred.

In legal malpractice cases, the statute of limitations begins when the negligence occurs, not when it is discovered by the client. Ford’s Inc. v. Russell Brown & Co., 299 Ark. 426, 773 S.W.2d 90 (1989); Riggs v. Thomas, 283 Ark. 148, 671 S.W.2d 756 (1984). Although the expert testified that the negligence occurred when Appellant failed to bring the cases to trial within nine months, the jury was not required to believe this testimony. See e.g., Robertson v. State, 304 Ark. 332, 802 S.W.2d 448 (1991); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979). There is no specific or statutory limitation of time within which to try a law suit. Because there existed a fact question regarding the date of the occurrence, it was not error to submit this issue to the jury.

The trial court makes the determination as to the admissibility of testimony. The Court must determine the relevancy, competency, and probative value of the testimony. Limiting Appellant’s testimony and that of his witnesses was within the trial court’s discretion and his decision will not be reversed absent a manifest abuse of that discretion. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988); Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987).

Downing, one of the attorneys for Appellee, did not become a witness. To allow his continued representation was discretionary with the court. An attorney cannot be called as a witness for the purpose of disqualifying him from the trial. McCoy Farm, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978). No prejudice to Appellant is demonstrated by allowing Appellee’s attorney to continue representing Appellee.

Because several issues might arise on retrial, we will briefly discuss them. During divorce proceedings, Appellee’s ex-wife made disparaging allegations about him. At trial, Appellant wanted to testify about these allegations because they allegedly illustrated his concern that Appellee’s ex-wife would be a damaging witness in the Law case. This concern led Appellant to delay bringing the Law case to trial. The Trial Court allowed Appellant to testify that Appellee’s ex-wife made some serious untruthful allegations, but refused to allow Appellant to go into the details of these allegations.

We do not reverse a decision made by a trial court pursuant to A.R.E. Rule 403 unless there has been a manifest abuse of discretion in balancing prejudice against probative value. Motes v. Johnson, 304 Ark. 23, 799 S.W.2d 798 (1990); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). We find no manifest abuse of discretion in these circumstances.

No prejudicial error was demonstrated by the trial court’s refusal of Appellant’s requested jury instruction.

On cross-appeal, Appellee raises several issues. The trial court refused the introduction of the Model Rules of Professional Conduct. This was not error. The Rules are not designed for a basis of civil liability, but are to provide guidance to lawyers and to provide a structure for regulatory conduct through disciplinary agencies. No cause of action should arise from a violation, nor should it create any presumption that a legal duty has been breached. “Scope”, Model Rules of Professional Conduct, by per curiam order of Supreme Court of December 16, 1985.

OCTOBER 12, 1992

310 S.W.2d 179

M. Stephen Bingham, for appellant.

Patrick James, for appellee.

The trial court did not abuse its discretion in refusing to submit to the jury the question of conversion, nor in refusing to let expert witness testify. Both matters are before the Court and he has the discretionary authority to determine their applicability. There is no evidence of any abuse of that authority.

This case is reversed and remanded for further proceedings consistent with this opinion.

Reversed and remanded in part; reversed and dismissed in part.

Brown, J., not participating.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Per Curiam.

The appellee, Larry Moyer Trucking, Inc. (Moyer), asserts an incorrect standard of review was applied in deciding an issue in its cross-appeal. While we agree the opinion incorrectly states the standard to be applied by a trial court in deciding whether to give an instruction, recognition of the error does not change the result, thus rehearing is denied. We write again to dispel confusion which may have been created by our opinion.

Moyer argued on appeal that the Trial Court erred by refusing to submit its conversion claim against Orsini to the jury. The claim was based upon Orsini’s failure to return Moyer’s legal files after Moyer terminated Orsini as his representative. Orsini claimed Moyer owed him $7,924.01 in unpaid legal fees, and he filed a counterclaim against Moyer for that amount. Orsini also asserted an attorney’s lien over Moyer’s files and materials which came into Orsini’s possession during the employment relationship.

In our opinion we did not mention that, in its original Complaint, Moyer sought to replevy Moyer’s files remaining in Orsini’s possession. That aspect of the case was tried by the Trial Court without a jury, and nothing in the record suggests Moyer requested that the issue be submitted to a jury. The Trial Court found in favor of Orsini, recognizing Orsini’s right to retain possession of the files until ownership could be determined by final judgment.

The jury refused to award Orsini any amount on his counterclaim for unpaid legal fees and essentially determined no fees were due. The final judgment also indicated that Moyer’s legal files which were in Orsini’s possession should be returned to Moyer.

Conversion is any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with, the owner’s right. Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 877 (1991). The intent required for conversion is not that which accompanies a conscious wrongdoing, but rather an intent to exercise a dominion or control over goods in a manner inconsistent with the plaintiffs rights. Car Transp. v. Garden Spot Distrib., 305 Ark. 82, 805 S.W.2d 632 (1991).

The Trial Court’s decision in Moyer’s replevin action that Orsini was entitled to assert an attorney’s lien, and retain possession of the files until final judgment, precluded Moyer’s conversion claim. The issue had already been decided, thus there was no need to submit it to the jury.

Our opinion in this case, however, stated “[t]he trial court did not abuse its discretion in refusing to submit to the jury the question of conversion. . . .” Had there been a conversion issue remaining in the case at the conclusion of the trial, the Trial Court would have had to instruct the jury on that issue. Refusal to instruct on the conversion claim in the face of substantial evidence in support of it would have been tantamount to directing a verdict in favor of Orsini. The test for determining whether a verdict may be directed is whether there is substantial evidence in support of the claim. Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991); Baucom v. City of North Little Rock, 249 Ark. 848, 462 S.W.2d 229 (1971). By suggesting the matter was within the Trial Court’s discretion, our opinion was misleading. As explained above, there was no need to submit the issue to the jury in this case as it had already been decided.

Rehearing denied.

Brown, J., not participating.


author: Per Curiam.

text:
    Kevin BURKHART v. STATE of Arkansas
    CR 89-179
    834 S.W.2d 154
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Petitioner, pro se.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for respondent.
   .

Per Curiam.

Petitioner Kevin Burkhart was convicted in 1989 of capital murder and sentenced to life imprisonment without parole. We affirmed. Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). In March 1992, petitioner tendered to this court a fifteen-page typed petition for post-conviction relief pursuant to Criminal Procedure Rule 37. He filed a motion asking that the petition be filed even though it exceeded the ten-page limitation placed on Rule 37 petitions. Finding petitioner did not show good cause to warrant a deviation from the rule, we denied the motion. We also noted that in Maulding v. State, 299 Ark. 570, 776 S.W.2d 339 (1989), this court held that the rule limiting petitions under Rule 37 to ten pages places an entirely reasonable restriction on petitioners for post-conviction relief. Burkhart v. State, CR 89-179 (May 4, 1992).

Shortly after this court denied petitioner permission to file the fifteen-page petition, he submitted for filing a ten-page petition. The ten-page petition was the same petition which was submitted before but with the paragraph spacing deleted and margins reduced so that the fifteen pages could be contained in ten pages. The state has filed a motion asking that the ten-page petition be stricken.

Rule 37.1(e) provides that Rule 37 petitions which are handwritten must have a left-hand margin of at least one-and-one-half inches and upper and lower margins of at least two inches. Rule 37.1 (e) refers to handwritten petitions, but the state argues that typewritten petitions should also be required to meet the margin requirements; otherwise, a petitioner who has access to a typewriter may crowd as many typewritten words as possible on each page thus permitting the petitioner who has a typewriter an advantage over the petitioner who must handwrite his petition.

[2] We agree with the state that there is no rational basis to permit a petitioner who has access to a typewriter to file a petition which has inadequate margins and spacing. Just as this court enforces rules concerning the form for briefs so that the briefs can be easily read and understood, we hold that Rule 37 petitions, whether typed or handwritten, must conform to Rule 37.1 (e) with respect to the width of margins, the number of lines per page, and the number of words per line.

The petition before us is stricken. Petitioner is allowed thirty days in which to submit a petition which conforms to Rule 37.1(e).

Motion Granted.


text:
    Tommy GUY v. BREEKO CORPORATION and Cigna Insurance Company
    92-629
    832 S.W.2d 816
    Supreme Court of Arkansas
    Opinion delivered June 29, 1992

      Anthony W. Bartels, for appellant.

      Richard Andrew Lusby, for appellee.
   Per Curiam.

This is a workers’ compensation case. The Court of Appeals affirmed the decision of the Arkansas Workers’ Compensation Commission that petitioner’s permanent impairment equaled seven and one-half percent of the lower extremity and his healing period ended in September 1989. The Court of Appeals found substantial evidence in the record to affirm the Commission, noting that the Commission explained why it gave greater weight to the anatomical rating assigned by Dr. Carnesale than by Dr. Lopez. Dr. Carnesale’s estimate was seven and one-half percent of the lower extremity whereas Dr. Lopez’s was thirty-nine percent. The reason was that Dr. Carnesale was the treating physician who also performed the surgery on petitioner’s knee, whereas Dr. Lopez saw petitioner only once, and only for the purpose of evaluation.

In his petition for review petitioner points out that the Administrative Law Judge gave a rating of twenty percent and maintains that this case is thereby distinguishable from Scarbrough v. Cherokee Enterprises, 306 Ark. 641, 816 S.W.2d 876 (1991), where we said due process was not implicated as to issues of credibility where there is no disagreement between the ALJ, the Commission and the Court of Appeals with respect to the factual issues of the case. Here, petitioner argues, unlike Scarbrough, the ALJ was reversed by the Commission. That is true, but this is not a case dependent on an issue of credibility. The dispute simply involved conflicting medical evaluations of the percentage of a partial anatomical impairment, an opinion in which variable factors are weighed depending on the viewpoint of the particular expert. Moreover, the medical evaluations in this case were entirely in the form of written reports and depositions, no live medical testimony was presented to the ALJ.

Petition denied.


author: Jack Holt, Jr., Chief Justice.

text:
    Joe THRUSTON v. LITTLE RIVER COUNTY, Arkansas, et al.
    92-228
    832 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      Honey & Honey, P.A., by Charles L. Honey, for appellant.

      Dowd, Harrelson, Moore & Giles, by: Gene Harrelson, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the validity and constitutionality of Little River County Emergency Ordinance No. 0-90-7, which allows the appellees, Little River County, Arkansas, et al. (County), to open and close graves without charge. We find the emergency ordinance to be both valid and constitutional and affirm the chancellor’s judgment.

On May 20, 1991, the appellant, Joe Thruston, filed a complaint in the Little River County Chancery Court challenging the validity and constitutionality of Emergency Ordinance 0-90-7; Thruston amended his complaint, and the County ultimately filed a motion for summary judgment, which the chancellor granted on August 29, 1991.

Thruston appeals and asserts two points of error on appeal: 1) that the validity of emergency ordinance number 0-90-7 is a genuine issue of material fact to be litigated, and 2) that the construction and constitutionality of Ark. Code Ann. § 14-14-802 (1987) is a genuine issue of material fact to be litigated.

Initially, Thruston claims that the validity of emergency ordinance number 0-90-7 is a genuine issue of material fact to be litigated. We recently reiterated in Franklin v. OSCA, Inc., 308 Ark. 409, 825 S.W.2d 812 (1992) (citations omitted), that summary judgment is an extreme remedy which should be allowed only when there is no issue of fact to be litigated. The burden is on the movant to demonstrate the absence of a genuine issue of fact, and the court must review the evidence in the light most favorable to the party against whom judgment is sought. On appeal, we determine the appropriateness of a grant of summary judgment based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered.

In this case, the County admitted that on April 24, 1990, it had enacted an emergency ordinance providing for the opening and closing of graves without charge. Accordingly, there being no material questions of fact at issue, the chancellor was left to apply the applicable statutes in his determination on the County’s motion for summary judgment.

Section 14-14-802 addresses the general provision of county government services and provides in pertinent part as follows:

(b)(1) A county government, acting through the quorum court, may provide through ordinance for the establish- merit of any service or performance of any function not expressly prohibited by the Arkansas Constitution or by law.
(2) These legislative services and functions include, but are not limited to, the following services and facilities:
* * * *
(C) Community services, including:
* * * *
(ii) Cemetery, burial, and memorial services:
* * * *

(Emphasis added.)

Arkansas Code Ann. § 14-14-908 (1987) addresses emergency ordinances or amendments and provides in pertinent part as follows:

(a) GENERALLY. An emergency ordinance or emergency amendments to existing ordinances may be introduced in the manner provided by law for the introduction of ordinances. An emergency ordinance may be enacted only to meet public emergencies affecting life, health, safety, or the property of people.
* * * *
(c) DECLARATION OF EMERGENCY. An emergency ordinance must contain a declaration that an emergency exists and define the emergency. All emergency ordinances shall be designated “emergency ordinance.”
* * * *

In response to our decision in Dudley v. Little River County, 305 Ark. 102, 805, S.W.2d 645 (1991) (where we held that the provision of grave-digging services was invalid under section 14-14-802 on the basis that there was only a county judge’s testimony that the quorum court was aware and approved of the county providing grave-digging services and where the quorum court, even if it knew the services were being provided, took no action by ordinance or otherwise to authorize such service), the County enacted emergency ordinance 0-90-7, which provides in pertinent part as follows:

EMERGENCY ORDINANCE NO. 0-90-7 IN THE QUORUM COURT OF LITTLE RIVER COUNTY, ARKANSAS
Be it enacted by the Quorum Court of the County of Little River, State of Arkansas, an Ordinance to be entitled:
ORDINANCE ESTABLISHING A POLICY WHEREBY THE COUNTY OF LITTLE RIVER ASSUMES THE OBLIGATION OF OPENING AND CLOSING THE GRAVES IN AUTHORIZED CEMETERIES IN THE COUNTY.
WHEREAS, certain community services are an obligation of the County, and
WHEREAS Ark. Code Ann. § 14-14-802 (1987) describes certain services that a county government, acting through the Quorum Court, may provide through ordinance for the establishment of; and
WHEREAS Section 2(c)(ii) of Section 14-14-802 enumerates cemetery, burial and memorial services as authorized services; and
WHEREAS the Little River County, Arkansas, Quorum Court feels that there is a need to authorize those services and provide a system for the service delivery:
NOW THEREFORE BE IT ORDAINED by the Quorum Court of Little River County, Arkansas, that:
SECTION I. From and after the effective date of this ordinance, the Little River County Cemetery-Road Department, a division of the Little River County General Fund, which will be funded with sales tax revenues and has the equipment necessary to open and close graves, is hereby authorized to, at the direction of the Little River County Judge, or his authorized personal representative, perform that service; and
SECTION 4. It is hereby found and determined by the Quorum Court of Little River County, Arkansas, that an emergency does hereby exist, and that it is in the best interests of the citizens of Little River County to know that the practice of the county opening and closing graves is an authorized service.
* * * *

The general rule as to the constitutionality of ordinances authorized by statute is set out in Annotation, Municipal Corporations, 56 Am.Jur.2d. § 387 (1971) as follows:

A Municipal Ordinance expressly authorized by the state legislature, by virtue of a specific chartered provision, or other statute, is generally regarded as entitled to all the presumptions in favor of its validity which are applied in the case of the statute, and will be upheld unless it is clearly and unmistakably in violation of the state or federal constitution. . . . It is, therefore, generally held or stated that the courts cannot inquire into the reasonableness of ordinances which are within powers expressly granted to municipal corporations.

The County operated within the statutory framework of enacting the emergency ordinance; accordingly, we hold that emergency ordinance 0-90-7 complies with section 14-14-908 and is not clearly and unmistakably in violation of the state or federal constitutions.

Thruston’s second argument is that the construction and constitutionality of section 14-14-802 is a genuine issue of material fact to be litigated.

Given the presumption of the emergency ordinance’s validity, and our holding to that effect, we note that the State has a recognized legitimate governmental interest in the provision of burial services in that:

. . . the disposition of the dead is so involved in the public interest, including the public’s health, safety and welfare, that it is subject to control by law instead of being subject entirely to the desire, whim or caprice of individuals. In the exercise of its police power, the state may adopt reasonable regulations as to. . . burials or other means of disposing of dead bodies. . . . There is no question of the power of the legislature to exercise complete control of burials so far as is necessary for the protection of the public health and the promotion of the public safety.

Annotation, Dead Bodies, 22A Am.Jur.2d. §§ 1, 5 (1988).

By its very nature, the emergency ordinance provides burial services for the health, safety, and welfare of the County’s citizens. Consequently, we also uphold the constitutionality of section 14-14-802 and affirm the judgment of the chancellor.

Affirmed.


author: Steele Hays, Justice.

text:
    James N. NABERS v. The ESTATE OF Elmo SETSER
    92-137
    833 S.W.2d 375
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      Lingle & Corley, by: James G. Lingle, for appellant.

      Wayne Ackerman and H. Clay Fulcher, for appellee.
   Steele Hays, Justice.

This appeal challenges the probate judge’s denial of legal fees rendered in connection with the estate of Elbert Elmo Setser, deceased. In December 1990 the probate judge awarded expenses and $26,410.25 in fees for legal services, noting that the amount of work exceeded that normally required by an estate of comparable size.

In August 1991 the administrator, James N. Nabors, petitioned for the allowance of additional expenses and legal fees of $11,380. In December 1991 a successor probate judge approved the expenses but declined to allow additional legal fees and the administrator appeals on two points of error: The probate judge misinterpreted Ark. Code Ann. § 28-48-108(d) (1987), and abused his discretion in the amount of fees awarded. Finding neither argument persuasive, we affirm the order appealed from.

Citing Morris v. Cullipher, 306 Ark. 646, 816 S.W.3d 878 (1991), appellant urges that § 28-48-108(d) is not a cap on the amount of fees payable to attorneys for legal services in the administration of decedent’s estates. Appellant points out that the probate judge did not find the requested amount unreasonable and that none of the heirs objected.

While the trial court stopped short of characterizing the amount as unreasonable, we find nothing in his remarks at the end of a brief hearing from which to infer that he construed the statute could be exceeded in “exceptional cases” and noted the amount previously awarded was more than twice as much as would normally be paid for administration of an estate of this size, adding, “And it seems to me that’s enough.” It is clear the conclusion reached by the trial court was that the amount previously paid was sufficient.

In Adams v. West, 293 Ark. 192, 736 S.W.2d 4 (1987), we emphasized that § 28-48-108 authorizes the probate court to increase or decrease fees in accordance with the value of legal services rendered. There, an attorney, appointed as special administrator for purposes of appealing a ruling of the probate judge, requested a fee of $40,000 to $50,000. The probate court awarded a fee of $11,500 and the attorney appealed. In affirming the probate judge, we wrote:

Had the court held it was limited to a fee for Mr. Adams based solely on the schedule provided for personal representatives, we might well have agreed there was error. However, it is apparent that ultimately the court held that it could not, on the basis of the facts presented, justify a fee for Mr. Adams in excess of $ 11,500 even under the section permitting a fee to be paid to an attorney representing the estate. . . . The statute allows the court to award a higher or lower fee, based upon its determination of the value of the legal services rendered. That is primarily a factual determination to be made by the judge, and we will not reverse his decision unless it is clearly erroneous. Ark. R. Civ. P. 52(a). We cannot say that it is clearly erroneous in this case.

Appellant’s second point is succinctly stated: “Since the court found in December of 1990 that it was an extraordinary case and awarded fees at that time, to allow the attorneys to work for free without warning from December 1990 through August of 1991 is an abuse of discretion.” However, we find no basis for measuring the trial court’s discretion in the allowance of fees. There is no testimony as to the value of the legal services, or of the nature and extent of the services performed, or the results achieved, or anything else from which to judge. The order of December 1990 does mention 349.55 hours spent, but that was covered by the fee allowance of $26,410 and the time invested thereafter on the affairs of the estate is nowhere stated. In short, appellant has not shown an abuse of discretion by the trial court in the allowance of fees. Morris v. Cullipher, supra.

Affirmed.


author: David Newbern, Justice.

text:
    Bruce Lamar DONALD v. STATE of Arkansas
    CR 92-47
    833 S.W.2d 770
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      John Stratford, for appellant.

      Winston Bryant, Att’y Gen., by: Brad Newman, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Bruce Lamar Donald, was convicted and sentenced as a habitual offender for aggravated robbery and burglary. Donald argues the Trial Court erred by (1) failing to grant a directed verdict in his favor on both charges based on insufficiency of the evidence, and (2) allowing the State to impeach him with a prior burglary conviction. We find no error and affirm.

Michael Morris was sitting on the couch in his living room while his wife, Mary, was sleeping on the loveseat beside him. Morris testified a man, later identified as Bruce Lamar Donald, smashed the living room window with a carburetor which had been lying in the front yard. Donald entered the house through the broken window and told Morris he had a gun and was going to kill him and take his money.

Morris got the carburetor away from Donald and struck him with it. Morris and Donald struggled on the floor until the police arrived. Mary Morris testified to the same facts. At trial, Morris and his wife identified Bruce Lamar Donald as the man who broke into their house and threatened them.

Donald explained in his testimony that he broke into the Morrises’ house because he saw someone who had just stolen his wallet run inside the front door. Donald stated he did not intend to rob the Morrises, but only wanted to retrieve his stolen wallet. On cross-examination, Donald was impeached with his prior Florida convictions of burglary and lewd and lascivious assault.

Prior to trial, Donald moved in limine to prohibit the State from introducing his prior burglary conviction. The Trial Court ruled the burglary conviction was not so highly prejudicial that it could not be used for impeachment purposes. The jury found Donald guilty of the charges and sentenced him as a habitual offender to life imprisonment for aggravated robbery and thirty years imprisonment for burglary.

1. Substantial evidence

Donald’s first point is that the Trial Court erred by failing to grant a directed verdict on the aggravated robbery and burglary charges. Donald argues there was insufficient evidence that he broke into the Morrises’ house with the purpose of committing a theft or that he was armed with a deadly weapon. At the close of the State’s case, Donald’s motion for directed verdict was denied. Although Donald renewed his motion at the close of all the evidence as required by Ark. R. Crim. P. 36.21(b), he did not obtain a ruling.

We have consistently stated that the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. See, e.g., Terry v. State, 309 Ark. 64, 826 S.W.2d 817 (1992); Pacee v. State, 306 Ark. 563, 816 S.W.2d 856 (1991); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

2. 609(a)(1)

Donald’s second point is that the Trial Court abused its discretion by allowing the State to impeach him with a prior burglary conviction committed in Florida. He argues allowing the State to impeach him with a crime which was the same as the charged offense was highly prejudicial.

Arkansas R. Evid. 609(a)(1) provides in part that,

[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one year, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness.

The Trial Court has considerable discretion in determining whether the probative value of a prior conviction outweighs its prejudicial effect, and that decision will not be reversed absent abuse. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989).

When a defendant chooses to testify, we have consistently allowed prior convictions to be used for impeachment, even when the convictions are of crimes the same as or similar to those charged. In Griffin v. State, 307 Ark. 537, 823 S.W.2d 446 (1992), we found no abuse of discretion when a defendant charged with burglary was impeached with a prior crime of burglary. See also Polland v. State, 296 Ark. 299, 756 S.W.2d 455 (1988) (no abuse of discretion when appellant charged with theft and impeached with prior conviction of grand larceny); Simmons v. State, 278 Ark. 305, 645 S.W.2d 680 (1983) (no abuse of discretion when appellant charged with capital felony murder with kidnapping as the underlying felony and impeached with prior conviction of kidnapping). We find no abuse of discretion in allowing Donald to be impeached with his prior burglary conviction.

Affirmed.


author: Tom Glaze, Justice.

text:
    Ricky W. WHITE v. STATE of Arkansas
    CR 92-277
    833 S.W.2d 771
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      Ronald & Marc Chaufty, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of aggravated robbery and sentenced, as a habitual offender, to seventy-five years imprisonment. As his sole issue on appeal, the appellant argues that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We find no merit in the appellant’s argument, and therefore affirm.

The following dates are relevant to appellant’s speedy trial argument. On July 11, 1990, appellant was arrested by the Texarkana, Texas Police Department for the aggravated robbery charges in Miller County and for other charges filed in Bowie County, Texas. Appellant waived extradition to Miller County on October 18, 1990. He was charged with aggravated robbery in the Miller County Circuit Court on November 19, 1990. Appellant filed his motion to dismiss for lack of a speedy trial on July 8, 1991, and the trial judge denied the motion on July 18, 1991. Appellant’s jury trial began on July 22, 1991.

In accordance with the appellant’s constitutional right to a speedy trial, the state had twelve months from the time of the appellant’s arrest to try him for the aggravated robbery offense. A.R.Cr.P. Rules 28.1(c) and 28.2(a). Once it is shown that the trial was scheduled to be held after the speedy trial period had expired, the state has the burden of showing that any delay was the result of the appellant’s conduct or was legally justified by the excludable periods recognized in A.R.Cr.P. Rule 28.3. Glover v. State, 307 Ark. 1, 817 S.W.2d 409 (1991). Here appellant’s trial on July 22, 1991 was eleven days outside the twelve month speedy trial period from his arrest on July 11, 1990.

The period of delay resulting from the unavailability of the defendant for trial is recognized as an excludable period. A.R.Cr.P. Rule 28.3(e). In fact, this court has placed the responsibility on the defendant to be available for trial. Horn v. State, 294 Ark. 464, 743 S.W.2d 814 (1988). We have held that an accused in prison in another state, for a different crime, must affirmatively request trial in order to activate the speedy trial rule. Gillie v. State, 305 Ark. 296, 808 S.W.2d 320 (1991); Dukes v. State, 271 Ark. 674, 609 S.W.2d 924 (1981). Here, the state showed that the appellant signed the waiver of extradition on October 18, 1990, thus he was unavailable for trial before this date. While the appellant argued during the hearing on his motion to dismiss that he had tried to waive extradition several times before October 18 and had given notice that he wanted transferred to Arkansas, we find no evidence of this fact in the record. Thus, appellant’s speedy trial period did not begin to run until he waived extradition on October 18, 1990, and his trial on July 22, 1991 was well within the twelve month speedy trial period.

For the reasons stated above, we affirm the trial court’s denial of the appellant’s motion to dismiss for lack of a speedy trial.

       The state contends that the actual arrest date was July 12, 1990, but uses the July 11 date in addressing the appellant’s argument. Likewise, we will use the July 11 date in calculating the speedy trial period.


text:
    John A. BURNETT v. STATE of Arkansas
    CR 92-68
    832 S.W.2d 848
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992
    [Rehearing denied September 21, 1992.]

      Q. Byrum Hurst, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   .

Per Curiam.

The appellant, John A. Burnett, was convicted of first degree murder in the death of his wife and sentenced to life imprisonment. We affirmed. Burnett v. State, 299 Ark. 553, 776 S.W.2d 327 (1989). The appellant subsequently filed in this court a petition for post-conviction relief pursuant to Criminal Procedure Rule 37. We granted the petition in part to permit appellant to apply for an evidentiary hearing in the trial court on the question of whether appellant’s trial attorney rendered effective assistance of counsel. Specifically, we directed that the circuit court determine whether the petitioner’s attorney was ineffective for failing to object to the prosecutor’s questioning of appellant about appellant’s decision to remain silent after he was arrested; and, if so, whether that failure to object constituted ineffective assistance of counsel to such an extreme degree that appellant was denied counsel under the sixth amendment to the United States Constitution. We noted that the criteria for assessing the effectiveness of counsel had been enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Strickland provides that when a convicted defendant complains of ineffective assistance of counsel he must show that counsel’s representation fell below an objective standard of reasonableness and that but for counsel’s errors the result of the trial would have been different. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of counsel’s performance under Strickland requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. A court hearing a claim of ineffective assistance of counsel must consider the totality of the evidence before the jury. After a hearing, the trial court denied post-conviction relief. It is from that ruling that appellant brings this appeal. We find no error and affirm.

Appellant was cross-examined by the state at trial in the following manner:

Q. Now, Mr. Burnett, have you’ve told this story of what happened that night. You didn’t tell the police that, did you?
A. I didn’t tell the police anything, sir.
Q. In fact, you just refused to talk to them, didn’t you?
A. Yes, sir.
Q. When they read your rights, you refused to talk to them and wanted a lawyer, didn’t you?
A. Yes, sir.
Q. If you’re innocent, cared for your wife, wanted to see whoever did this to her caught, why did you tell the police this story?
A. I didn’t feel I had to at the time, sir.
Q. You didn’t feel you had to at the time, okay.
A. No, sir.

The appellant argued in his petition that his attorney erred in not objecting to the prosecutor’s questions because the questions focused to an impermissible degree on appellant’s constitutional right to remain silent after arrest.

It is fundamentally unfair and a deprivation of due process of law for an arrested person’s silence to be used to impeach an explanation subsequently offered by him at trial. Doyle v. Ohio, 426 U.S. 610 (1976). Although such questioning may be harmless error in some instances where there is no prosecutorial focus or repetitive questioning or arguing centered on a defendant’s silence and where the evidence of guilt is overwhelming, we granted a hearing in appellant’s case because the error was not harmless in light of the clear focus on the fact that appellant remained silent after his arrest. See Hobbs v. State, 277 Ark. 271, 641 S.W.2d 9 (1982); Numan v. State, 291 Ark. 22, 722 S.W.2d 276 (1986).

At the hearings that were held on the petition for post-conviction relief in the circuit court, the appellant presented a criminal lawyer who testified that in his opinion the state’s questioning at trial was objectionable and that had the defense attorney objected, a different verdict could have resulted or the case would have been reversed on appeal. The appellants’ attorney told the trial judge that another attorney, Jack Lassiter, had reviewed the transcript and was prepared to testify that the questions were objectionable and counsel was ineffective under Strickland v. Washington, for failing to object, but that Lassiter was not able to appear at any of the hearings. When the appellant’s original attorney was asked why he failed to object when the appellant was cross-examined by the prosecutor about his post-arrest silence, the attorney answered:

We discussed that and several other matters about whether he would testify or not during the sheriffs investigation. There were several statements made by several witnesses and then another person was arrested based upon those statements. After that, several witnesses gave conflicting statements with the previous statements and Mr. Burnett was then arrested. Based upon those statements in which they indicated that Mr. Burnett would not talk to the police, we felt like would be best if he did not talk to the police at all or the sheriffs office, we felt like it would be best for him to explain that to the jury because he was going to take the stand and he wanted to tell the jury exactly what happened and I thought he did and I thought he did a good job.
Q. So your telling the court that these questions that were asked about the defendant’s failure to respond to questioning by the police, it was determined with you and the defendant that it as a matter of trial strategy, that he needed to explain his silence?
A. To the best of my recollection, yes, because Mr. Burnett had been arrested before and I can’t remember how long ago and he knew about the right to remain silent, and the right to have an attorney present. So, we discussed that and that’s the strategy that we chose to choose.

The attorney also stated that he did not want Burnett to seem to be hiding something. Burnett then testified that he and his lawyer had never discussed explaining to the jury his assertion of his right to remain silent.

The trial court held on the basis of the evidence presented to it that the questions concerning appellant’s silence at the time of his arrest, which were asked without objection by the defense, were allowed as a matter of trial strategy; that the attorney for appellant at trial was aware of the objectionable nature of the questions and had discussed those questions with appellant; that counsel had thoroughly prepared appellant for his testimony; and that their strategy was that appellant should tell the whole truth, making sure that the jury knew he was holding nothing back, and as a result the decision was made not to object to the questions. The court further held that because the decision was a matter of trial strategy, the failure to object did not demonstrate incompetence of counsel but rather demonstrated to the trial judge, who observed the entire trial and the manner in which the defense attorney conducted himself and the defense, that the decision was one which an attorney could employ as trial strategy. The court further found that even if objections to the questions had been made and sustained, the outcome of the trial would not have been affected.

While the explanation given by the defense counsel as to the reason he did not object may be one about which seasoned advocates could disagree, the trial court determined that counsel made what could be considered a strategic decision, and we cannot say that the finding was clearly against the preponderance of the evidence. See Pettit v. State, 296 Ark. 423, 758 S.W.2d 1 (1988). Matters of trial strategy and tactics, even if arguably improvident, are not grounds for a finding of ineffective assistance of counsel, Hill v. State, 292 Ark. 144, 728 S.W.2d 510, cert. den. 479 U.S. 1101 (1987); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

The appellant also argues that his motion for reconsideration in which he stated that he had been unable to arrange a time to allow the testimony of Jack Lassiter and his motion for reconsideration in which he asked the trial court to consider the closing arguments of the original trial which had not been included in the earlier transcript should have been granted. We find no error in failing to grant the motion for reconsideration as to the closing arguments since the trial court was limited to the issue of whether his attorney’s failure to object to the questions asked during cross-examination constituted ineffective assistance of counsel. Nor was there error in not granting the motion to reconsider with regard to the testimony of Jack Lassiter since the appellant was given more than one opportunity to present the testimony.

Affirmed.

Dudley, J., dissents.


text:
    JUVENILE H. v. Hon. Terry CRABTREE
    92-747
    833 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      James M. Luffman, for petitioner.

      Winston Bryant, Att’y Gen., and Charles Mackey, Mary Ann Gunn, and Debby Nye, for respondent.
   Per Curiam.

This case began with the deputy prosecuting attorney of Benton County filing a petition to adjudge Juvenile H., sixteen-years-old, in need of family services. On June 10, 1992, the Benton County Circuit/Chancery Court in Juvenile Division pursuant to Act 273 of 1989 placed H. in custody of the Department of Human Services because H. was in substantial risk of serious harm. The court amended its order on the same date wherein it appointed counsel for H. and provided H.’s pregnancy could not be terminated without an order of the court. H.’s counsel, who also is designated H.’s guardian ad litem, filed a motion requesting the amended June 10, 1992 order be modified by deleting any reference to H.’s right to terminate her pregnancy. On June 24, 1992, the juvenile court refused H.’s request, finding in relevant part as follows;

3. While there is no evidence that the juvenile is insane, the statements of counsel regarding prior institutionalization of the minor child in a psychiatric hospital and chemical abuse by the minor child, the pleadings and the relinquishment of custody by the mother leads the Court to believe on the record before it, that the minor child is not capable of giving informed consent, and therefore it is not in the best interest of the minor child to terminate the pregnancy.
4. The minor child has been placed in the care, custody, and control of the Department of Human Services of the State of Arkansas. Amendment 68 to the Constitution of the State of Arkansas expresses a strong public policy for protecting the life of an unborn child. The life of an unborn child is defined by Amendment 68 as from conception to birth. Amendment 68 also prohibits the use of public funds for an abortion. The State of Arkansas has already, and will continue expending public funds for the care of the minor during pregnancy and would indirectly or directly expend funds for the care of the minor child while in custody of the state after termination of the pregnancy in violation of Amendment 68.
5. The order should be amended to remove the requirement of the assignment of a particular case worker by the Department of Human Services, and to enjoin the juvenile’s attending physicians or the juvenile from terminating the juvenile’s pregnancy.

At the time the trial court entered its order on June 26, 1992, H. was ten weeks pregnant. She now petitions for a writ of prohibition alleging the juvenile court is without jurisdiction to enter any order affecting her right to have or not to have an abortion. H. further asserts the court’s order creates a consent requirement for an abortion where none is authorized by law. She asks this court to set aside the trial court’s June 24, 1992 order and to prohibit the trial court from entering any order respecting H.’s right to terminate her pregnancy.

Prohibition will not lie unless the trial court is clearly without jurisdiction or has acted without authority and the petitioner is unquestionably entitled to such relief. The purpose of the writ is to prevent a court from exercising a power not authorized by law when there is no other adequate remedy by appeal or otherwise. It is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. Municipal Court of Huntsville, Madison County v. Casoli, 294 Ark. 37, 740 S.W.2d 614 (1987); Porter Foods, Inc. v. Brown, Judge, 281 Ark. 148, 661 S.W.2d 386 (1983).

Pertinent to the facts and arguments made here, we note that certiorari lies where there is a want of jurisdiction or an act in excess of jurisdiction which is apparent on the face of the record. State v. Nelson, Berry Pet. Co., 246 Ark. 210, 438 S.W.2d 33 (1969). And if we find that the trial court proceeded illegally and in excess of its jurisdiction, this court has treated proceedings on review as an application for certiorari in quashing the offending portions of the trial court’s order. Id.

The Supreme Court has held that, regardless of whether exceptions are made for particular circumstances, a state may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. Planned Parenthood of Southeastern Pennsylvania v. Casey, — U.S. - (Nos. 91-744 and 91-902 June 29, 1991). Arkansas recognizes this principal of law, but does require parental notification in certain circumstances. See Ark. Code Ann. §§ 20-16-801 to -808 (1987). Arkansas law also prohibits public funds from being used to pay for any abortion except to save the mother’s life. Ark. Const. amend. 68. H. requests no public funds in this instance, so Amendment 68 is not relevant.

Clearly, the Benton County Juvenile Court has jurisdiction to declare H. in need of family services. Ark. Code Ann. § 9-27-306 (1987). However, neither the court nor the state’s counsel, who appeared before the court, cited any authority giving that court power to enjoin H. or her attending physicians from terminating her pregnancy. As alluded to above, Arkansas law does provide that no operation shall be performed upon an unemancipated minor until at least forty-eight hours after written notice of the pending operation has been given to the minor’s parent(s) or court-appointed guardian or custodian. §§ 20-16-801 and -802. However, a judicial by-pass procedure is provided if the minor elects not to notify her parent, guardian or custodian, but that procedure is initiated by petition in probate court. § 20-16-804. We should add that probate courts are not given authority in these matters unless the pregnant minor chooses not to notify her parents, guardian or custodian. Id.

In conclusion, we find no legal authority, and none has been cited, to support that part of the juvenile judge’s order enjoining H. or her attending physicians from terminating her pregnancy. In this respect, the juvenile court exceeded its jurisdiction and its order reflecting such excess is erroneous on its face. Accordingly, we issue a writ of certiorari vacating the trial court’s June 26, 1992 order.


text:
    JUVENILE H., A Minor v. Hon. Terry CRABTREE, Circuit Chancery Judge
    92-747
    833 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992
   .

Per Curiam.

This is a juvenile case and accordingly the record herein is closed and confidential under the provisions of Ark. Code Ann. § 9-27-309 (Repl. 1991).


text:
    Jerry RUCKER v. STATE of Arkansas
    CR 92-728
    831 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      R. Brent Crews, for appellant.
    No response.
   Per Curiam.

Appellant, Jerry Rucker, by his attorney has filed for a rule on the clerk.

His attorney, R. Brent Crews, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated Februry 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Jennifer THOMPSON, A Minor, by Dwight Thompson and Debbie Her Natural Guardians and Next Friends v. The Hon. Harold S. ERWIN, Circuit Judge of Randolph County, Arkansas
    92-513
    832 S.W.2d 854
    Supreme Court of Arkansas
    Opinion delivered July 6, 1992

      James Mackey Luffman, for appellant.

      Winston Bryant, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   .

Per Curiam.

Petitioner moves for an abbreviated briefing schedule. Because this is a mandamus action, we already have expedited this matter. On May 1, 1992, petitioner filed this original action, and the state filed its response ten days later. The record required supplementation which was granted on June 8, 1992. Petitioner filed her brief on June 22, 1992, and the state’s brief is due on July 22, 1992. Petitioner’s reply brief, if any, will be due on or before August 6, 1992. Petitioner’s motion to expedite was not filed until June 25, 1992, and at this stage of the briefing schedule, it is impossible to accelerate this matter more than it already has been. Submission of the case also will be advanced.

The state in its response to the mandamus petition herein states an interlocutory appeal in the case of Joseph Wicker v. State, No. 92-245, is also pending and describes how that matter might be relevant to this action. Accordingly, we will also expedite the Wicker case, so both cases are to be submitted at the same time.


author: Robert H. Dudley, Justice.

text:
    MOSLEY MACHINERY CO., INC. v. GRAY SUPPLY CO., et al.
    91-306
    833 S.W.2d 772
    Supreme Court of Arkansas
    Opinion delivered July 13, 1992

      Anderson & Kilpatrick, by: Randy P. Murphy, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Richard N. Watts; and Huckaby, Munson, Rowlett & Tilley, P.A., by: Beverly Rowlett, for appellee.
   Robert H. Dudley, Justice.

This case involves the exclusivity of the Workers’ Compensation Act. Gray Supply Company, the employer and the appellee, bought a metal shearing machine from Mosley Machinery Company, Inc., the manufacturer of the machine and the appellant. Seven years later, two employees were making repairs inside the machine when an accident occurred that killed one employee and injured the other. The employer-appellee paid Workers’ Compensation benefits to the injured employee and to the decedent’s survivors. The injured employee and the decedent’s estate sued Mosley, the manufacturer of the machine, for negligence in design, strict liability for providing a defective product, and failing to provide an adequate warning. The manufacturer filed a third-party complaint against the employer for indemnity implied in the purchase contract. In its third-party complaint the manufacturer alleged that the employer violated Occupational Safety and Health Administration regulations and failed to perform repairs on the machine in compliance with instructions provided by the manufacturer. The employer filed a motion to dismiss for failure to state facts upon which relief could be granted because the exclusive remedy against an employer is the payment of Workers’ Compensation benefits. Ark. Code Ann. § 11-9-105 (1987). The trial court granted the employer’s motion and entered the appropriate order under A.R.C.P. Rule 54(b) allowing the manufacturer to appeal on the separate issue of the employer’s liability for indemnity. We affirm the trial court’s ruling dismissing the manufacturer’s third-party complaint.

The manufacturer argues that, under the terms of its sales contract with the employer, there should be implied a duty on the employer to supervise and conduct all work on the machine in such a manner as to insure the safety of its employees and a promise to indemnify the manufacturer for any damages resulting from the breach of this duty. We have recognized an exception to the exclusivity of the Workers’ Compensation remedy when there is a contract or special relation capable of carrying with it an implied obligation to indemnify. Smith v. Paragould Light & Water Comm’n, 303 Ark. 109, 793 S.W.2d 341 (1990) and Oaklawn Jockey Club v. Pickens-Bond Constr. Co., 251 Ark. 1100, 477 S.W.2d 477 (1972).

In Oaklawn, we recognized implied indemnity in a construction contract between the employer and the third party landowner. Professor Larson has explained that such a contract is one in which can be found a separate duty running from the employer to the third party.

When the employer’s relation to the third party is that of a contractor doing work for the third party, there may be an implied obligation to perform the work with due care. If, by failing to use such care, the employer causes an accident injuring his own employee, it may be said that the employer has simultaneously breached two duties of care. The one is toward the employee, and it is for this breach that compensation bars any common-law remedy. The other is toward the third party contractee, and among the damages flowing from the breach of this separate duty are any damages the third party may be forced to pay the employee because of their relation.

2B A. Larson, The Law of Workmen’s Compensation § 76.60 (1989).

However, the contract in the present case is not a contract for services but a fully executed sales contract. In such a contract, the implied duties or warranties do not run from the purchaser (employer) to the manufacturer, but from the manufacturer to the purchaser. McClish v. Niagara Machine & Tool Works, 266 F. Supp. 987 (S.D. Ind. 1967); Arcell v. Ashland Chemical Co., Inc., 378 A.2d 53 (N.J. 1977); Williams et al. v. Ashland Chemical Co., 368 N.E. 2d 304 (Ohio 1976); 2B A. Larson, the Law of Workmen’s Compensation § 76.84 (1989). To find that when a purchaser buys a product, he makes an implied contract with the manufacturer to use that product in such a way as not to bring liability upon the manufacturer “would be stretching the concept of contract out of all relation to reality.” 2B A. Larson, supra, at 14-871.

Since we cannot find any implied duty running from the employer-purchaser to the manufacturer-seller in a sales contract, the promise to indemnify, if any, must be found in the express provisions of the contract. In its third party complaint and on appeal, the manufacturer relies upon the following paragraphs from its purchase contract with Gray:

20. SAFETY. PURCHASER acknowledges being informed by COMPANY that in order to avoid personal injury and property damage, care in the operation and maintenance of the EQUIPMENT is essential. In furtherance of this objective, COMPANY shall supply PURCHASER with COMPANY’S operating and maintenance manual and safety procedures for the EQUIPMENT, and PURCHASER (i) agrees and obligates itself to read same prior to any use of EQUIPMENT, and examine all warnings, signs and designations affixed to or painted on the EQUIPMENT, all of which is hereinafter referred to as the “safety materials”, (ii) agrees and obligates itself to instruct its servants, agents and employees and any other users of the EQUIPMENT in the knowledge of such safety materials; (iii) agrees and obligates itself, and to cause its servants, agents and employees and any other users of the EQUIPMENT, to obey and abide by such safety materials; and (iv) agrees and obligates itself to make such materials available to, disseminate among and cause to be understood by all independent contractors, licensees, invitees and any other third party coming into contact with the EQUIPMENT.
21. OCCUPATIONAL SAFETY AND HEALTH ACT (“OSHA”). OSHA and the standards thereof control usage of the EQUIPMENT in the facilities of the PURCHASER and compliance therewith is its responsibility as an employer. COMPANY endeavors to comply with all purposes and applicable standards of OSHA but the purchase price thereof does not include such special charges as may be necessary to insure strict OSHA compliance. In the event the EQUIPMENT herein is not found to comply with OSHA, COMPANY, at PURCHASER’S request and expense, will endeavor to make appropriate modification.

These paragraphs acknowledge the employer’s duty to maintain and operate the machine in a safe manner and to comply with OSHA regulations. However, the mere acknowledgement of such obligations does not express an agreement of indemnity running to the manufacturer. To imply that this creates duties of indemnity running to the manufacturer, “turns indemnity on its head.” Santisteven v. Dow Chemical Co., 506 F.2d 1216, 1219 (7th Cir. 1974).

In the absence of an express contract for indemnity, it is an equitable remedy, governed by equitable principles which shift responsibility for the loss from one tortfeasor who might be compelled to pay to the shoulders of another who should bear it instead. Missouri Pac. R.R. Co. v. Star City Gravel Co., 452 F. Supp. 480 (E.D. Ark. 1978); W. P. Keeton et al., Prosser and

Keeton on The Law of Torts § 51 (5th ed. 1984). The manufacturer argues that it is equitable to shift the loss to the employer because the employer was in control of the machine and responsible for the supervision of its employees at the time the accident occurred. These were important considerations in the Oaklawn and Smith cases upon which the manufacturer relies. However, in those cases, it was not these considerations alone which made it equitable to shift the burden for the loss to the employer. As discussed above, the Oaklawn case involved a contract for services, and under the case law, such a contract implies a duty running from the employer-contractor to the contractee to perform the work with care and to indemnify for damages flowing from the breach of that obligation. In Smith, the provisions of a statute obligated the city employer to supervise the work and from this separate obligation could be implied the promise to indemnify others who might be held liable for its failure to properly discharge this duty. In the present case, there is no special relationship carrying with it an implied obligation to indemnify. Therefore, the trial court did not err in dismissing Mosley’s third party claim for indemnity from Gray, the employer, and this result is consistent with our prior cases. See also Morgan Constr. Co. v. Larkan, 254 Ark. 838, 841, 496 S.W.2d 431, 433 (1973), in which we embraced the general rule that, “[w]hen the relation between the parties involves no contract or special relation capable of carrying with it an implied obligation to indemnify, the basic exclusiveness rule generally cannot be defeated by dressing the remedy itself in contractual clothes, such as indemnity . . . .”

Affirmed.

Corbin, J., not participating.