text:
    PETRUS CHRYSLER-PLYMOUTH v. Leonard DAVIS and Joyce DAVIS
    84-89
    671 S.W.2d 749
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Frank W. Booth, for appellant.

      Martin, Vater & Karr, by: Charles Karr, for appellees.
   P. A. Hollingsworth, Justice.

The appellees were awarded compensatory and punitive damages against the appellant, Petrus Chrysler-Plymouth, Inc., (Petrus) after a fire destroyed a 1975 Dodge Ramcharger purchased by the appellees from the appellant. Petrus raises seven issues in its appeal from the j ury’s verdict. This appeal is before us under Sup. Ct. R. 29 (1) (o) as it presents questions in the law of torts and contracts. We affirm.

On June 9,1979, Mr. and Mrs. Davis, the appellees, test drove the Ramcharger. As it was being driven by the appellees, it began to smoke from underneath the dash. When they returned it to the lot, they told the salesman what had happened. They then negotiated an agreement and signed a buyer’s order dated June 9. Under the agreement, Petrus was to “repair wiring” “adjust clutch” and “fix hood latch.”

Two days later, on June 11, Petrus contracted with Wimberly’s Gulf Service Center for the repair work. Ray Wimberly testified at trial that he told Jean Dolan, who works for Petrus, that the vehicle’s wiring harness needed to be repaired or replaced. He also testified that she told him they were only going to show the vehicle and she wanted him to get the air conditioner and the radio working. He stated that she told him that if someone bought it and the wiring still gave them trouble they could bring it back and fix it at another time. Mr. Wimberly replaced the switch and made the repairs on the air conditioner wires, but he did not replace the wiring harness.

Mr. Davis returned to Petrus to take possession of the vehicle on June 11. It had not been repaired so he did not take delivery, but returned on June 13. The clutch still had not been repaired, but he testified that the salesman told him the wiring harness had been replaced. Petrus gave Mr. Davis a $100 check for him to use to repair the clutch. Mr. Davis signed a second buyer’s order dated June 11, 1979, which contained the handwritten notations, “as is” and “paid $100.00 for repair of clutch.”

Ón June 15, while Mrs. Davis was driving the Ram-charger, it started smoking from underneath the dash, caught fire, and was heavily damaged.

The Davises brought suit when they were unable to resolve the matter with Petrus. A jury awarded them $10,700 for compensatory damages and $5,000 for punitive damages.

On appeal, the appellant argues that: (1) the trial court erred in failing to grant their motion for directed verdict; (2) the trial court erred in allowing appellees to introduce oral testimony to vary and contradict the terms of the written contract between the parties; (3) the trial court erred in instructing the jury on the question of breach of warranty; (4) the trial court erred in giving the damage instruction because there was no evidence of probable cause; (5) the trial court erred in instructing the jury on punitive damages; (6) the trial court erred in directing a verdict for the appellees on the question of abuse of process; and (7) there was no substantial evidence to support the verdict of the jury. We find no merit in any of the appellant’s contentions.

The crux of the appellant’s first argument is that the trial court should have granted their motion for a directed verdict because of the appellees’ failure to prove the existence of a defect and that the defect caused the damage. There was conflicting testimony as to the probability that the cause of the smoke coming out from under the dashboard on the test drive was the same as the cause of the fire that subsequently destroyed the vehicle. However, we review the evidence in the light most favorable to the appellees. Norman v. Gray, 238 Ark. 617, 383 S.W.2d 489 (1964). Since it is within the province of the jury to believe the appellees’ theory over the appellant’s version, we only consider whether there is any substantial evidence to support the jury’s findings. Id.

We have adopted the doctrine of strict liability in torts in products liability cases. See Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983). This however, does not change the burden of proof as to the existence of a defect in a product. Southern Co. v. Graham Drive-In, 271 Ark. 223, 607 S.W.2d 677 (1980). Such proof may be by circumstantial evidence. Id. In Southern Co., we stated:

It is true, as appellant argues, that liability cannot be based on mere conjecture and guess, (citation omitted). However, in the absence of direct proof of a specific defect, it is sufficient if a plaintiff negates other possible causes of failure of the product, not attributable to the defendant, and thus raised a reasonable inference that the defendant as argues here, is responsible for the defect.

Futhermore, in Harrell Motors, Inc. et al v. Flancery, 272 Ark. 105, 612 S.W.2d 727 (1981), we stated that:

proof of the specific defect is not required when common experience tells us that the accident would not have occurred in the absence of a defect. In such a situation there is an inference the product is defective, and it is up to the manufacturer to go forward with the evidence.

Here, we find there was ample evidence from which the jury could have inferred that the vehicle was defective when sold to the appellees, and that that defect ultimately resulted in the fire which destroyed the vehicle.

The appellant’s second argument is that the trial court erred by allowing the appellee, Mr. Davis, to tesify about the meaning of the notation “as is” which was on the contract. Mr. Davis testified that “as is” referred to a second handwritten notation which appeared immediately below and which read “Paid $100.00 for repair of clutch.” The appellant maintains that the two terms were two separate thoughts and were in no way related to each other. Therefore, the appellant argues that Mr. Davis’ testimony was introduced to contradict or vary the terms of the written contract, which is contrary to the parol evidence rule.

We have held that the parol evidence rule requires the exclusion of all prior or contemporaneous, oral or written evidence that would add to or vary the parties’ integrated written contract, which is unambiguous. Walt Bennett Ford, Inc. v. Dyer, 4 Ark. App. 354, 631 S.W.2d 312 (1982). In Pollock v. McAlester Fuel Co., 215 Ark. 842, 223 S.W.2d 813 (1949), we held that:

evidence of previous negotiations between the parties is admissible to prove the meaning of written words, not by showing that the parties intended them to mean something different from what other persons at the same time and place and dealing with the same subject matter would attach to them, but to prove that the parties.were dealing in regard to a matter or to secure an object, or under circumstances where local usage would give a particular meaning to the language; or in case the local meaning is ambiguous, to show that the parties attached one appropriate meaning to their words, rather than another equally appropriate meaning.

Here, the words “as is” and the reference to the payment for the clutch appear in the same portion of the contract and were added to the contract at the request of the appellee, Mr. Davis. His testimony as to the meaning of the two terms does not vary or contradict the written contract but merely explains the relation between the two terms. The evidence was admissible.

The appellant’s third and fourth arguments are essentially renewed attacks on the sufficiency of the evidence. Since we already dealt with that question in our response to the first issue, we will not discuss it again. Furthermore, the appellant cites no case law to support his position and essentially reiterates the same argument. We held in Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977), that we would not consider “assignments of error on appeal that are unsupported by convincing argument or authority, unless it is apparent without further research that they are well taken.”

The appellant next argues that the trial court erred in giving a punitive damages instruction because there is no evidence upon which to base a finding that the appellant’s conduct would naturally or probably result in injury. We have held that commercial fraud requires punishment as a deterrent and that “ if there is evidence tending to show that the tortfeasor intentionally performed a deliberate act with the intention of misleading a prospective purchaser about a material matter to his injury, it is proper to permit the jury to consider awarding punitive damages.” Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). There was evidence that appellant knew the wiring in the automobile was defective, and the appellant was told that the wiring should be replaced. Appellant took another course of conduct that was a misrepresentation and caused injury to the appellees.

The appellant’s sixth contention is that the trial court erred in directing a verdict for the appellees on the question of abuse of process. In the case at bar, there was absolutely no evidence that appellees did anything improper in connection with this lawsuit, either before it was instituted or after.

The appellant’s final point once again goes to the sufficiency of the evidence to support the verdict of the jury. We have already dealt with that issue, and affirm the trial court.

Affirmed.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice.

license: Public Domain

text:
    Edward Leon DOUTHITT v. STATE of Arkansas
    CR 84-47
    671 S.W.2d 746
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      Scott Adams, for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   P. A. Hollingsworth, Justice.

The appellant, Edward Teon Douthitt, was charged with aggravated robbery. On the day of trial, the appellant pled guilty and was sentenced to thirty years in prison with the stipulation that he serve at least one-third of the sentence. The appellant filed a motion for post-conviction relief, alleging ineffective assistance of counsel. A hearing was held, and the motion was denied. It is from that decision that this appeal is brought. We affirm.

The appellant argues that the evidence shows that his attorney advised him that he would not be sentenced to more than seven years if he pled guilty, and that he would only actually have to serve one-sixth of that time. The appellant testified at the evidentiary hearing that his attorney told him he would not receive a longer prison sentence than the others involved in the same crime received. The appellant maintains that, he was prejudiced by his attorney’s remarks because he would have taken his chances with the jury if he had known that there was any chance he would receive a thirty year term.

Counsel is presumed competent, Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982), and to prove ineffective assistance of counsel, appellant must overcome that presumption and show by clear and convincing evidence that he was prejudiced by his counsel’s actions. McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). On appeal, we reverse the trial court’s denial of post-conviction relief only if the trial court’s findings are clearly against the preponderance of the evidence. Guy v. State, 282 Ark. 424, 668 S.W.2d 952 (1984). The evidence here supports the trial court’s findings.

The record reveals that when the appellant pled guilty, he was informed by the trial judge that he was subject to a minimum term of ten years and a maximum term of fifty years and a fine of $15,000. The guilty plea statement signed by the appellant again set out the minimum and maximum prison terms and included a statement which read as follows:

I declare that no officer or agent of any branch of government. . ., nor my lawyer (emphasis added), nor any other person, has made any promise of any kind to me or within my knowledge to anyone else, that I will receive a lesser sentence, or probation, or any other form of leniency if I plead “Guilty,” except as to the recommendation contained herein on the plea agreement offered by the prosecuting attorney.

The portion of the statement where the plea and sentence recommendation is set out is blank since there was no plea agreement involved in the appellant’s plea. At his sentencing, the appellant was informed for the third time of the possible sentences he could receive. He refused the opportunity to make a statement before formal sentencing and, after the thirty year sentence was imposed, he made no comment.

At the evidentiary hearing on the Rule 37 petition, the appellant’s testimony about his attorney’s statements to him was as follows:

Q: I would like for you to tell the Court in your own words the events that led up to your guilty plea and your eventual sentence to (30) years?
A: Well, I asked the attorney if I had a ch— what chances I had and he said I probably didn’t have a change to beat it. And I said, “What chance would I have of — or what probably I would get if I plead guilty?” And he said, “You shouldn’t get over (7) year, no one else did.” I said, “Fine, if I can get something of that nature, well, let’s go plead guilty.” . . .
Q: . . . Did your attorney, at the time you were considering your plea, explain various options as far as minimum and maximum terms and the amount ot time that you would likely have to spend in jail if you pled guilty?
A: Well, no, uh, I didn’t uh — the only thing is that, uh, you know, the reason he said that — he said that, you know, everyone else involved — no one got over (7) year, and you shouldn’t — you shouldn’t either, you know, more than likely. And I said, “Well, fine,” you know. Of course, uh — . . .
Q: All right, Mr. Douthitt, the day that you were here for your plea, I believe that the Judge asked you if your were satisfied with your attorney and you did answer yes, is that correct?
A: Yes____
Q: Okay. You indicated that the attorney told you that more than likely you wouldn’t get any more than the others that were involved?
A: Yes.
Q: But you knew that there was some different involvement as far as you were concerned and as far as they were concerned, is that correct?
A: Yes.
Q: Okay. Were you aware of the fact that the attorney couldn’t promise or guarantee you what Judge Eddy was going to do?
A: No, I wouldn’t aware — well, I guess I was yes. He — .
Q: Did you read that, or was it read to you before you signed the Guilty Plea Statement?
A: I presume I did.
Q: Did you read this form?
A: Oh, yes; yeah, I read that. . . .
Q: Well, at the time he [the attorney] told you that, [that he would likely receive seven years] did you feel that was his guess?
A: Well, I just, uh, as I guess you’d call it an expert opinion. I guess if you call it a guess, you can.

The appellant’s attorney also testified at the hearing. He stated that the appellant asked him, “What do you think my chances are if I plead guilty?” He replied, “Well, the Judge gave Riley (7) years, and Riley is the one that actually did the robbery. And I don’t know what he would do, but you know, I don’t think it would be much more than what Riley got.” When asked if he had made any “actual promises or guarantees, ’ ’ the attorney answered, “I have not done that in (30) years, because the Judge is the only one who can pronounce the sentence; I cannot.”

The trial judge ruled against the appellant at the close of the hearing and stated:

I don’t see anything in the conduct of your defense and your representation ... or his advice and consultation that would constitute ineffective assistance of counsel in this matter and your petition will be denied. What went on between you and him goes on a lot of times between lawyer an client. You weigh your chances, you make a decision, you take your chances. And as far as I am concerned, you live with the results. No one can know beforehand what will be imposed in such a situation. And I don’t believe [the attorney] promised you that you would get no more than (7) years. I do believe seven years was mentioned, but I do believe it is normal to talk about a certain number of years anytime you enter a plea of guilty. In your instance you under guessed it.

We agree. We have stated many times that “[a] showing of improvident strategy, mere error, omission or mistake will not suffice to establish counsel’s incompetence.” McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Here, theattorney was mistaken about the amount of time that the appellant would receive if he pled guilty. That in itself is insufficient to overcome the presumption that counsel is competent.

Furthermore, in Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981), we held that the appellant did not prove ineffective assistance of counsel in a Rule 37 petition where the appellant failed to indicate that he was dissatisfied with his attorney on the two occasions that he had an opportunity to do so. We stated in Moore that:

In Horn v. State, 254 Ark. 651, 495 S.W.2d 152 (1973), we dealt with a similar question of whether statements by counsel concerning the possible sentence that could be received at trial amounted to ineffective assistance of counsel. There we found that the trial court had questioned the defendant on this very matter to make certain that the plea was freely and voluntarily made. We held that Horn could not claim ineffective assistance of counsel since he had the opportunity to raise this issue prior to his plea, and the same is true for Moore.

The same is also true for the appellant in this case.

Affirmed.

Dudley, J., not participating.


author: Per Curiam.

text:
    Sammy Joe ELMORE v. STATE of Arkansas
    672 S.W.2d 48
    Supreme Court of Arkansas
    Opinion delivered July 9, 1984

      John Wesley Hall, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Sammy Joe Elmore, by his attorneys, John Wesley Hall, Jr., and Tom Hinds, has filed a motion for rule on the clerk.

The motion admits that the transcript of the case was not timely filed and it was no fault of the appellant. His attorneys admit that the transcript was filed late due to a mistake on their part.

We find that such an error, admittedly made by the attorneys for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeal in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: George Rose Smith, Justice.

text:
    Mrs. Harlan H. HILL v. J. H. BROWN
    84-84
    672 S.W.2d 330
    Supreme Court of Arkansas
    Opinion delivered July 16, 1984

      W. Dent Gitchel, for appellant.

      Cearley, Mitchell and Roachell, by: Michael W. Mitchell; and Haskins Law Firm, by: John T. Haskins, for appellee.
   George Rose Smith, Justice.

J. H. Brown brought this suit in 1982 to obtain partition of a 55-acre tract of land in Saline County. The complaint alleged that Brown and Dr. Harlan H. Hill owned the land as tenants in common at the time of Dr. Hill’s death in 1965, that Mrs. Hill received her husband’s half interest under his will, and that Brown was entitled to partition. Mrs. Hill’s answer denied that Brown had any interest in the land and asserted title in Mrs. Hill by adverse possession and by reason of Dr. Hill’s having acquired whatever interest Brown had had in the property.

Upon trial the chancellor found the issues in Brown’s favor. The court ordered partition by public sale, with Mrs. Hill to be reimbursed for her mortgage and tax payments. For reversal Mrs. Hill argues that she proved title by adverse possession and the court erred twice in excluding testimony about Dr. Hill’s acquisition of Brown’s half interest. Our jurisdiction is under Rule 29 (1) (c), an issue being the interpretation of a Uniform Rule of Evidence.

First, the proof is insufficient to sustain a claim of adverse possession as between tenants in common. Brown and Hill bought the property in 1963, each paying half of the $4,000 down payment. Several monthly payments were made from a Brown & Hill partnership bank account. The record title was still in the two names at Hill’s death in 1965. Mrs. Hill, however, included the entire tract in her inventory of the estate, paid the outstanding mortgage, and has paid the taxes every year. Although the land is fenced, it does not have a dwelling on it, is largely pastureland, and has not been in anyone’s actual possession for seven successive years.

Tenants in common each have an equal right to possession; so one tenant’s possession is deemed permissive and does not become adverse until he gives actual notice of a hostile claim to his cotenant or commits such open acts of hostility that knowledge of his adverse claim must be presumed. Hirsch v. Patterson, 269 Ark. 532, 601 S.W.2d 879 (1980). We infer from the inventory that Mrs. Hill and Griffin Smith, the attorney for the estate, did not know the state of the record title. Mrs. Hill herself made no claim of ownership to Brown. Smith testified that after Hill’s death he talked to Brown about some farm equipment, that he told Brown that the estate did not recognize any interest or claim he might have, and that “I did tell him that if he had any evidence of ownership, I’d be happy to look it over and there was no intention to bar him from any rights that he might have.” Those statements do not amount to the flat assertion of absolute ownership that the law requires as between tenants in common.

The two remaining arguments for reversal pertain to the admissibility of Mrs. Hill’s hearsay evidence that Hill purchased Brown’s half interest. Brown denies such a purchase. He testified that he used to see Hill two or three times a week and had a good relationship with him. He said that after the two men bought the land he cleared up the property, had a pond put in, sowed and fertilized grass in the pasture, repaired the fences, and installed a gate. He said Hill told him just b.efore his death that he need not make payments on the note or the taxes.

Counsel for Mrs. Hill first sought to rebut Brown’s proof by calling Mrs. Hill and Smith to testify that after Hill’s death they had each seen a $2,500 check among Hill’s papers, with a notation on the check or on the stub that it was for Brown’s interest in the land. That testimony was inadmissible. Its only purpose was to show that Hill had made a written statement on the check or stub that he had bought Brown’s interest in the land. Such a statement falls squarely within the statutory definition of hearsay and was properly excluded. Uniform Evidence Rule 801, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Second, it is argued that the court should have allowed Mrs. Hill and Smith to testify that before Hill’s death he told each of them that he had bought Brown’s interest in the land. Counsel concedes that the proffered proof is hearsay and does not fall within any of the common-law exceptions to the hearsay rule that are enuimerated in Uniform Rules 803 and 804. It is insisted, however, that Hill’s statements should be treated as coming within a brand-new exception inserted at the end of both those Rules. The new paragraphs read as follows:

Other exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more, probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

The new paragraph does not spell out a specific exception to the general prohibition against hearsay. Instead, it lists several matters to be considered as conditions to the admissibility of hearsay not falling within a recognized exception. The substance of this catch-all provision was added by Congress when it adopted the Federal Rules of Evidence. The provision was not intended to throw open a wide door for the entry of judicially created exceptions to the hearsay rule. To the contrary, the new exception is to be narrowly construed. That is made plain by this paragraph in the report of the Senate’s Advisory Committee:

It is intended that the residual hearsay exceptions will be used very rarely, and only in exceptional circumstances. The committee does not intend to establish a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804 (b). The residual exceptions are not meant to authorize major judicial revisions of the hearsay rule, including its present exceptions. Such major revisions are best accomplished by legislative action. It is intended that in any case in which evidence is sought to be admitted under these subsections, the trial judge will exercise no less care, reflection and caution than the courts did under the common law in establishing the now-recognized exceptions to the hearsay rule.

S. Rep. No. 93-1277, 93rd Cong., 2ndSess. 1,20, reprinted in 1974 U.S. Code Cong. & Ad. News 7051, 7066.

The cases that have been decided under the new rules have given weight to the views expressed by the congressional committee. Two cases in particular deserve mention. The first preceded the Federal Rules, but it was cited by the committee as illustrative of the purpose of the residual exception. Dallas County v. Commercial Union Assur. Co., 286 F.2d 388 (5th Cir. 1961). The issue was whether or not charred timbers in the dome of a courthouse, which had collapsed, had been burned by lightning. The court approved the introduction of a newspaper account, printed 58 years earlier, describing a fire in the new courthouse being constructed. Although the news story did not fit any exception to the hearsay rule, the court admitted it and stressed its obvious trustworthiness: “It is inconceivable to us that a newspaper reporter in a small town would report there was a fire in the dome of the new courthouse — if there had been no fire.”

A second case, decided under the Federal Rules, is United States v. Medico, 557 F.2d 309 (2nd Cir. 1977). There a bank employee was allowed to testify that about five minutes after the bank had been robbed, he answered a knock on the bank’s door by a man he merely recognized as a bank customer. The bank employee, upon opening the door, saw a young man sitting outside in a car giving the customer the make and license number of the getaway car. The customer relayed the information to the witness, who wrote it down on his checkbook. Although the identity of the bank customer and of the young man could not be determined, the court emphasized the reliability and probable accuracy of the witness’s testimony in allowing him to narrate the incident.

Both these cases carried out the intent giving rise to the new residual exception. All the common-law exceptions to the hearsay rule are based either upon necessity or upon some compelling reason for attaching more than average credibility to the hearsay. A statement against interest, for example, is accepted because whatever a person says to his own disadvantage is apt to be true. Consequently any new exception must have, in the language of the Rule, circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions.

In the case at bar the testimony rejected in the trial court would have shown that Hill had said he had acquired Brown’s interest. Far from such a statement’s being attended by inherent guarantees of its trustworthiness, the opposite is true. Hill’s statement was self-serving. He could not be cross-examined about it. The proffered hearsay could readily have been fabricated. We discern no basis for applying the new residual exception in this case. The trial court was right in excluding the testimony.

Affirmed.

Dudley, J., not participating.


author: John I. Purtle, Justice.

text:
    Debbie Ederington SONTAG et al v. ORBIT VALVE CO., INC.
    84-126
    672 S.W.2d 50
    Supreme Court of Arkansas
    Opinion delivered July 16, 1984

      Davidson Law Firm, Ltd., by: Charles Phillip Boyd, Jr., for appellants.

      Tom Forest Lovett, P.A., by Tom F. Lovett, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellee, one of three defendants, from a tort action which was brought by the widow and heirs of one of appellee’s employees. Appellants argue on appeal that the heirs of decedent may pursue a wrongful death action for mental anguish and punitive damages for an intentional tort committed by the employer even though the Workers’ Compensation benefits ordinarily is the exclusive remedy for physical injury to an employee. We uphold the ruling by the trial court.

The complaint filed by the widow and heirs of decedent, who died from self-inflicted gunshot wounds, alleged that the employer, appellee, and two supervisory employees pursued a course of conduct which constituted intentional and negligent infliction of emotional distress and mental and emotional assault on decedent. It is fair to state that the complaint was framed to allege an intentional tort was committed by the two employees and that such acts were imputed to appellee by virtue of respondeat-superior, master-servant, and the principal-agent relationship. The complaint alleged further that the Workers’ Compensation law did not supplant the common law remedy sought. The complaint also acknowledged that the widow and the two minor children made a claim for workers’ benefits and entered into a joint petition which was approved by the Commission. The other heirs did not execute the joint petition.

All three defendants filed motions to dismiss on grounds that the complaint did not state a cause of action because the widow had received benefits pursuant to the Workers’ Compensation Act and that appellants were estopped as a matter of law because they had elected to pursue benefits under the Workers’ Compensation Act. The court rejected the motions of the two employees but granted appellee’s motion by stating: “That the Motion to Dismiss filed by the Defendant, Orbit Valve Company, Inc., should be and is hereby granted.” It is from this dismissal that appellants appeal.

The only matter for consideration on this appeal is whether the widow and children, or other heirs of decedent have a claim against the employer for damages resulting from decedent’s death. The employer-employee relationship is not disputed for the purposes of this appeal, We treat the dismissal of the employer as having been based upon the employer-employee relationship and the Workers’ Compensation Act as being the exclusive remedy. The complaint did not allege that appellee committed or commanded these acts which were allegedly committed by the two fellow employees. Therefore, if the employer did not commit, command or authorize these acts, then they were not intentional from his viewpoint. Larson’s Workmens’ Compensation, Sec. 6821. It is true that an employer cannot feloniously assault an employee and relegate the injured employee to his remedies under the Workers’ Compensation Act. Heskett v. Fisher Laundry & Cleaners Company, Inc., 217 Ark. 350, 230 S.W.2d 28 (1950). After a willful and intentional assault by an employer on an employee the injured employee may elect to sue the employer at common law for the injury inflicted. Heskitt, supra. The general rule is that an injured employee’s right to recover for job-related injuries is exclusively under the Workers’ Compensation Act. However, when the employee is able to show actual, specific and deliberate intent by the employer to injure him, he may avoid the exclusive remedy under the Workers’ Compensation law and proceed in a common law tort action. Griffin v. George’s, Inc., 267 Ark. 91, 589 S.W.2d 24 (1979).

Whenever an employee is injured by the willful and malicious acts of his employer he may treat the acts of the employer as a breach of the employer-employee relationship and seek full damages in a common law action. However, he must elect one or the other. Heskett, supra. The mere fact that an employer’s supervisory employee injures another employee by inflicting an intentional tort is not cause to allow a common law action for damages against the employer. To do so would open the door to a flood of tort actions simply because an employee could merely allege the tortfeasor was a notch above him and. thereby evade the Workers’ Compensation law restrictions. An election once made and pursued to recovery prevents a subsequent claim to the other type of relief. Here the widow elected to make a claim under the Workers’ Compensation Act. She cannot now return to a common law action against the employer for damages. The joint petition executed by appellant before the Workers’ Compensation Commission stated in part: “The Claimants contend that their husband and father sustained a compensable injury arising out of and in the course of his employment ...” Appellants then accepted $19,625 as a complete settlement for all claims arising pursuant to the Workers’ Compensation Act. The rights granted by the Act are “exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next [of] kin or anyone otherwise entitled to recover damages from such employer ...” Ark. Stat. Ann. § 81-1304 (Supp. 1983).

In the present case the other heirs are in the same position as the widow and children as to the dismissal of the complaint for failure to state a cause of action which would exempt the claim against the employer from the exclusiveness of the Workers’ Compensation Act. The acts of the other employees are not automatically imputed to the employer. Before an action may be sustained there must be allegations of willful and intentional acts by the employer or it must be alleged that he directed, authorized or commanded his other employees to do the wrongful acts. Neither allegation was contained in the complaint.

We recognize that Owens v. Bill & Tony’s Liquor Store, 258 Ark. 887, 529 S.W.2d 354 (1975) held that the mere filing of a common law action did not prevent a subsequent claim for benefits under the Workers’ Compensation Act. Here, however, the claim for benefits resulted in a settlement of the claim pursuant to the Act. In such a case we hold that the election prevents a subsequent claim under the common law.

Affirmed.


author: Steele Hays, Justice.

text:
    OZARK KENWORTH, INC. and PACCAR FINANCIAL CORP. and Darrell MEREDITH d/b/a DARRELL MEREDITH TRUCKING v. Johnny D. NEIDECKER
    84-15
    672 S.W.2d 899
    Supreme Court of Arkansas
    Opinion delivered July 16, 1984

      Cypert & Roy, for appellants.

      Bethell, Callaway, Robertson ir Beasley, by: John R. Beasley, for appellee.
   Steele Hays, Justice.

This suit comes to us on appeal by Ozark Kenworth, Inc., appellant, from a suit brought by Johnny Neidecker, appellee, who was awarded damages by a jury for breach of warranty and fraud in connection with the sale of a truck to Neidecker.

In March 1980, Neidecker purchased from Kenworth a Peterbilt truck represented as a 1978 model. The truck was sold “as is” with all other warranties excluded. In May, Neidecker was stopped by the Illinois State Police for being overweight. A check on the vehicle showed it had either a 1975 or 1976 Caterpillar engine, a 1971 frame and a 1978 Peterbilt cab. Neidecker then went back to Kenworth to seek redress but was told by Kenworth there was nothing they could do. Neidecker had by this time paid $10,500 to Kenworth but stopped all further payments and evidently made payments instead to an escrow account at a bank. Neidecker continued to use the truck for six months, incurring repair bills totaling $13,888. In October, 1980 Kenworth repossessed the truck as a secured party under § 85-9-503 of the Uniform Commercial Code. The truck was in a repair shop and had been burned from unknown causes. Kenworth took possession of the truck and sold it for salvage.

Kenworth first argues that the court erred by not granting, a directed verdict on the issue of Neidecker’s revocation of acceptance. Kenworth submits Neidecker merely tried to renegotiate the contract, and his subsequent use of the vehicle for six months waived any revocation that might have been made. However, the evidence was such that the jury could have found revocation under the circumstances. A directed verdict is proper only when there is no substantial evidence from which the jurors, as reasonable persons, could find the issues for the party opposing the motion. Sharp Co. v. N.E. Ark. Planning and Consulting Co., 275 Ark. 172, 628 S.W.2d 559 (1982).

Neidecker testified as follows concerning his attempt to revoke the contract:

NEIDECKER: Yes, sir, and I asked him if he would make up the difference, make it up, because I would not pay him, I couldn’t because it was not a 1978 Peterbilt. Would he make up the difference on it, something, you know, for me to revoke that agreement. We had to make out another one, and it wasn’t his problem he said, so, at that time I left.
Q: Did you indicate anything about the contract?
NEIDECKER: Yes, sir, I sure did. I asked him, you know, to make a different contract and everything; there wasn’t nothing he could do about it. . .
Kenworth’s manager, Rick Scott, testified as follows:
Q: When Mr. Neidecker came in to complain, after he had been stopped by the state police in Illinois, did you tell him there’s — you got what you paid for and there’s nothing I can or will do about it?
SCOTT: I told him there was nothing I could do for him, correct.
Q: And if he had made any statement past that point, it would have been to no avail, because that was your position that you couldn’t do anything for him?
SCOTT: That’s correct.

After his meeting with Scott, Neidecker stopped making any payments to Kenworth.

Neidecker was twenty-one years old. He had just gone into business for himself with the purchase of this truck. Comment 5 to § 85-2-608 states: “The content of the notice [of revocation] under subsection (2) is to be determined in this case as in others by considerations of good faith, prevention of surprise, and reasonable adjustment . . . Following the general policy of the Article, the requirements of the content of notification are less stringent in the case of a non-merchant buyer.” We think there was sufficient evidence presented from which the jury could have found revocation.

As to the use of goods after revocation, that circumstance does not necessarily constitute a waiver of revocation, but the courts are divided on this issue. Anderson, Uniform Commercial Code (1983) discusses the point and after noting that some courts have found such use as cancelling a revocation, notes in part:

Other courts hold that the post-revocation use does not affect the revocation of acceptance where the continued use was reasonable as when it was explained on the ground of mitigating damages, inability to effect cover, the buyer’s waiting for instruction from or removal of goods by the seller, economic necessity or as a reasonable way of protecting the goods in which the buyer had a security interest for the recovery of the purchase price.

Anderson, Id. § 2-608:46

The continued use of the goods does not cancel a prior rejection where the seller had wrongfully refused to accept the buyer’s rightful rejection of a mobile home and the seller knew that all the money of the buyer was invested in the home. “While the use of the home [by the buyer] was wrongful as against the seller, such use was the direct result of the oppressive conduct of the sellers in not allowing the buyers to reject, and we do not believe that it is necessary to conclude that use of the goods cancelled the rejection.” [Jones v. Abriani, 350 N.E.2d 635 (1976)]

Anderson, id. § 2-606:33.

This court has not yet addressed the issue, but we believe the better view is represented by those cases which held such use will not invariably cancel revocation. The issue is determined on a case by case basis, with the reasonableness of post-revocation use being the underlying consideration, taken in conjunction with a consideration of all the other elements necessary to effect a justifiable revocation. In this case, the jury had before it the fact that Kenworth flatly refused to acknowledge any breach or to accept any revocation and the jury could have found Neidecker’s use under the circumstances was reasonable. It would not, therefore, have been proper to direct a verdict on behalf of Kenworth.

Further, Kenworth maintains the court improperly instructed the jury on the issue of revocation of acceptance. The instructions were a recitation of § 85-2-602 with the omission of 2(a) from that section. With the omitted portion in italics, § 85-2-602 reads in its entirety:

85-2-602. Manner and effect of rightful rejection. — (1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.
(2) Subject to the provisions of the two (2) following sections on rejected goods,
(a) after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller; and
(b) if the buyer has before rejection taken physical possession of goods in which he does not have a security interest under the provisions of this Article [subsection (3) of Section 2-711 ], he is under a duty after rejection to hold them with reasonable care at the seller’s disposition for a time sufficient to permit the seller to remove them; but
(c) the buyer has no further obligations with regard to goods rightfully rejected.
(3) The seller’s rights with respect to goods wrongfully rejected are governed by the provisions of this Article on seller’s remedies in general.

Kenworth contends the issue of use and dominion of the goods was a fact question for the jury, that the instructions led the jury to believe that there was no further duty after revocation, nor that Neidecker was under any obligation to discontinue use or exercise of control or ownership. The instructions, however, did tell the jury under § 2-602(b) that the appellee was “under a duty after rejection to hold them with reasonable care ...” and did not, as Kenworth argues, imply that Neidecker had no further duty after revocation.

This issue, too, is new. In light of our discussion of the previous argument, we conclude that it was error for the question of Neidecker’s use of the truck after revocation not to have been submitted to the jury as to its reasonableness. Nor was the instruction offered by Kenworth correct, which makes the objection insufficient to justify reversal. Dickerson Construction Co. v. Dozier, 266 Ark. 345, 584 S.W.2d 36 (1979).

Kenworth claims error in the trial court’s failure to dismiss Neidecker’s claim under the Federal odometer statute. Neidecker’s original complaint was filed in October, 1980 and on March 3,1983, appellee amended his complaint to include a claim under the Federal odometer law. The statute has a two year limitation, which had run, but under ARCP Rule 15(c), relation back is allowed if the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, which is true in this case. Rule 15(a) allows an amendment at any time if the court determines that no prejudice or undue delay would result if allowed. Kenworth contends it was prejudiced by allowing the amendment as appellant filed its third party complaint on February 24, 1983, against Darrell Meredith (from whom Kenworth had purchased the truck) and a suit by Kenworth over against Meredith was precluded because of Neidecker’s delay. It is settled that Rule 15(c) is to be liberally construed in allowing amendments, but the liberal construction applicable to Rule 15 is limited when prejudice to the adverse party is affirmatively shown. The doctrine of relation back should not be allowed when it operates to cut off a substantial right or defense to new matter introduced by the amendment although connected with the original cause of action. 61A Am. Jur. 2d §§ 310, 311, 314, 337. In this case Kenworth was prejudiced by allowing the amendment, as a defense and a substantial right was denied by its not being able to bring a suit over against the third party defendant.

Kenworth’s other arguments are related and we address them together. It argues error by the court in improperly admitting evidence of incidental and consequential damages, denying a directed verdict and a motion for JNOV on those damages, submitting the issues of damages to the jury, and denying a directed verdict on the issue of liability for breach of warranty of description and fraud. The jury award was $10,500 for breach of express warranty and $13,888 for fraud and misrepresentation.

The truck was sold “as is” all warranties excluded, and the only warranty available to the appellee was a breach of warranty of description i.e. the truck was sold “as is,” a 1978 model while it was, “as is,” a 1976 model. Kenworth contends the only evidence presented was repair bills incurred during the six months following revocation and no causal connection was shown between either the breach of warranty or the misrepresentation — that the appellee put on no evidence to establish that these bills would not have been incurred had the truck been a 1978 model and not a 1976 model.

The measure of damages for breach of warranty and for misrepresentation is the difference between the value of goods received and the value as warranted. See § 85-2-714 and § 85-2-721. Consequential and incidental damages may be recoverable in appropriate circumstances. Here, there was no evidence presented to prove damages for breach of warranty, nor did the instructions given on breach of warranty and fraud state what that measure of damages was. The only instruction given on the measure of damages was for incidental and consequential damages under § 85-2-715. Kenworth is correct that consequential damages must be proximately caused by the seller’s breach or misrepresentation as the jury was so instructed. See § 85-2-715 (2), Consequential Damages. No such proof was offered, which left the issue to speculation. Neidecker contends, however, that these repairs would not have been necessary if Kenworth had made any attempt to cure its breach, but as we have said, Neidecker presented no proof that such would be the cáse. Neidecker urges that these repair bills are recoverable because they were made in connection with maintaining the truck after he revoked his acceptance. This claim falls under § 2-715 (1), Incidental Damages, but appellee cites no authority for such damages and we have found none that goes so far as to allow recovery for incidental damages or consequential damages on comparable facts, nor does the expectation of recovery for such repairs seem reasonable in these circumstances.

As to the denial of a directed verdict on breach of warranty and fraud we find there was sufficient evidence presented to go to the jury on liability on both of these issues. However, an essential element for both claims requires proof of damages proximately caused by the breach or misrepresentation or proof of difference in value. As discussed above, proof was lacking on both counts. With no proof of causal connection between the breach of warranty or the misrepresentation and no proof of the difference in value between the truck received and the truck as warranted, we must agree with Kenworth that the proof was insufficient on the issue of incidental and consequential damages, and on the issue of liability for breach of warranty and fraud.

A problem remains, however, on the issue of revocation, the result of a purely mechanical error, but one which prevented all of Neidecker’s damages from being properly presented to the jury. The jury was instructed on what was required to revoke acceptance and that if such revocation were found the buyer could recover so much of the purchase price as had been paid. However, there was no verdict form supplied on which the jury could record such a finding and make an award for recovery of money paid. The $10,500 awarded for breach of warranty suggests that the jury did find revocation as that was the exact amount Neidecker prayed for in his complaint that had been paid to Kenworth. But we can neither make that assumption nor can we correctly hold, as was discussed above, that any award was proper under the breach of warranty claim for want of proof. We therefore remand the case for a determination on the issue of revocation and what damages are recoverable if justifiable revocation is found.

Reversed and remanded.

Dudley, J., not participating.

      We also note that Comment 1 to § 85-2-608 points out that the Code no longer speaks or operates in terms of rescission and the remedy is now dealt with as revocation of acceptance.

      See cases cited in Anderson, id. § 2-608:46.

      In Snow v. C.I.T. Corp. of the South, 278 Ark. 554, 647 S.W.2d 465 (1983) we went as far as recognizing that under the Code, holding the goods and not tendering them back to the seller will not cancel a previous revocation and cited Anderson, id. § 2-618:18: “If the buyer has paid for the goods in advance or has incurred any expense or damages for which the seller is liable, the buyer, upon making a rightful revocation of acceptance is entitled to hold the goods until he has been paid. That is, the code in such a case gives the buyer a security interest in the goods. Snow at 278.


author:
P. A. Hollingsworth, Justice.
      P. A. Hollingsworth, Justice.

text:
    David BOSNICK v. A. L. LOCKHART, Director, Arkansas Department of Correction & Arkansas Board of Pardons and Paroles
    84-97
    672 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered July 16, 1984
    [Supplemental Opinion on Denial of Rehearing September 24, 1984.]

      Nussbaum, Newcomb ir Hendrix, for appellant.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   P. A. Hollingsworth, Justice.

The appellant was convicted for a murder committed on December 31,1968 and sentenced to life in prison. On October 30, 1978, the appellant escaped from prison, for which he was subsequently convicted and sentenced to an additional three years. The three year term was ordered to run consecutively to the life sentence already being served by the appellant. This appeal is before us under Sup. Ct. R. 29(1 )(c) as it presents the interpretation of an act of the General Assembly.

When the appellant’s first crime was committed, Act 50 of 1968, codified at Ark. Stat. Ann. § 43-2807 (Supp. 1971) was in effect. Under that act, appellant contends that he should be considered eligible for parole on the life sentence he is serving after fifteen years. Appellant further asserts that the three year consecutive sentence he is serving for escape cannot add more than three years to the time to serve before being eligible for parole. At the time of the appellant’s escape from prison, Act 93 of 1977, codified at Ark. Stat. Ann. § 43-2828 et. seq. (Repl. 1977) was in effect. Appellee contends that this subsequent crime was committed in 1978 and therefore falls within the purview of Act 93 of 1977 and that the three year sentence received by him is added to his original life sentence and treated as a single commitment for parole eligibility purposes. The appellee asserts that under the 1977 act the appellant is not eligible for release on parole until his life sentence is commuted to a term of years by executive clemency. The appellee applied the 1977 act and refused to consider the appellant for parole. The appellant filed an action in the Jefferson County Circuit Court for declaratory judgment and a writ of mandamus directing the appellees to consider him for parole under the 1968 act. The trial court granted the appellee’s motion for summary judgment and denied the requested relief. On appeal, we reverse.

The appellant contends that the application of the 1977 act is a violation of the ex post facto provisions of the Arkansas and U. S. Constitutions because that act was not in effect at the time his crime was committed. We agree.

We have said that “a parole statute less favorable to one who had been sentenced prior to its passage than the parole law existing at the time of his sentencing would be unconstitutional as an ex post facto law, in violation of Art. 2 § 17 of the Arkansas Constitution.” Davis v. Mabry, Director, 266 Ark. 487, 585 S.W.2d 949 (1979); see also Poe v. Housewright. Comm’ner, 271 Ark. 771, 610 S.W.2d 577 (1981). The same rule applies to this situation. The 1977 parole eligibility act was not in effect when the appellant’s first crime was committed. The fact that he committed a second felony after the passage of the act does not affect his parole eligibility for the first crime. The U.S. Supreme Court addressed this same issue in Weaver v. Graham, 450 U.S. 24 (1981). At issue there was a Florida statute which repealed an earlier statute and reduced the amount of “gain time” for good conduct that was deducted from a convicted prisoner’s sentence. The Supreme Court found that the application of the new statute to the petitioner in that case was unconstitutional. The Court held:

The ex post facto prohibition forbids the Congress and the States to enact any law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” (citations omitted) Through this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. (Cites omitted). . .
In accord with these purposes, our decisions prescribe that two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. . . . The presence or absence of an affirmative enforceable right is not relevant, however, to the ex post facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, eyen if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.

Delivered September 24, 1984

677 S.W.2d 292

. . .[I]t is the effect, not the form, of the law that determines whether it is ex post facto. The critical question is whether the law changes the legal consequences of acts completed before its effective date.
. . . We have previously recognized that a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judge’s calculation of the sentence to be imposed. . .Second, we have held that a statute may be retrospective even it if alters punitive conditions outside the sentence.

For the reasons enunciated in Weaver, we hold that it was unconstitutional to apply the 1977 act retroactively to the appellant’s first conviction. By this decision, we are not making a determination that the appellant is entitled to be paroled. What we are saying is that the appellant’s parole eligibility for the first crime he committed must be determined by Act 50 of 1968, the law in effect at the time he was sentenced.

We reverse and direct the trial court to issue a writ of mandamus consistent with this opinion.

Reversed.

Dudley, J., not participating.

Supplemental Opinion on Denial of Rehearing

P. A. Hollingsworth, Justice.

In their petition for rehearing, the appellee argues that it is unclear from our opinion whether parole eligibility is determined under the parole law existing at the time of a defendant’s sentencing or that existing when the crime was committed. Furthermore, the appellee states that our opinion is unclear as to the proper method for determining parole eligibility when, as in this appellant’s case, consecutive sentences are imposed at different times. The petition for rehearing is denied because we are affirming our earlier holding. However, because the appellee’s points have merit, we offer the following clarification.

Our decisions in Davis v. Mabry, Director, 266 Ark. 487, 585 S.W.2d 949 (1979) and Poe v. Housewright, Comm’ner, 271 Ark. 771, 610 S.W.2d 577 (1981) both provide that the parole law in effect when an appellant is sentenced is the statute to be applied to that appellant’s application for parole. However, both the Legislature in Ark. Stat. Ann. § 43-2829 (Repl. 1977) and the United States Supreme Court in Weaver v. Graham, 450 U.S. 24 (1981) have indicated that parole status is more properly governed by the parole statute in effect at the time the crime was committed. We think that the latter is the law and to the extent that they are inconsistent with this viewpoint, we overrule both Davis and Poe. As we said in our original opinion, a parole statute less favorable to those sentenced prior to its passage than the law in effect at the time of sentencing is unconstitutional as an ex post facto law. Central to this argument is the lack of fair notice to a defendant of what parole law will govern his situation. By applying the law in effect when the crime was committed, any possible lack of notice to a defendant is eliminated. Therefore, that is the rule we adopt.

As to the determination of parole eligibility when consecutive sentences are involved, Ark. Stat. Ann. § 43-2829 (E) provides that “For parole eligibility purposes, consecutive sentences by one or more courts, or for one or more counts, shall be considered as a single commitment reflecting the cumulative sentence to be served.” In treating consecutive sentences as a single commitment, we hold that the parole eligibility statute governing the original sentence is the one that should control the cumulative sentence. Support for this position can be found in Davis, where we held that when a life sentence is commuted to a term of years, the parole statute in effect when the sentence was imposed governs rather than that in effect at the time of commutation. Again, this finding is consistent with the concept of fair notice to a criminal defendant.

Rehearing denied.


author: Per Curiam. John I. Purtle, Justice,

text:
    Cecil KNAPPENBERGER v. STATE of Arkansas
    CR 84-27
    672 S.W.2d 54
    Supreme Court of Arkansas
    Opinion delivered July 16, 1984
    [Rehearing denied September 10, 1984.]

      Howard & Howard, by: William B. Howard, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

      Purtle, J., would grant.

   Per Curiam.

Appellant Cecil Knappenberger was charged with second degree murder in the death of Wiley Johnson. He was found guilty of manslaughter and sentenced to ten years imprisonment. We affirmed. Knappenberger v. State, 278 Ark. 382, 647 S.W.2d 417 (1983) (amended on denial of rehearing March 28, 1983). We subsequently granted permission to proceed in circuit court pursuant to A.R.Cr.P. Rule 37 on allegations of ineffective assistance of counsel. After a hearing, the trial court found that petitioner had not been denied effective assistance of counsel. This appeal is from that finding.

On appeal from the denial of a petition for postconviction relief we reverse only if the findings of the court are clearly against the preponderance of the evidence. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). The only issues in this appeal are whether counsel’s assistance was ineffective by virtue of his advising appellant to confess to the crime and in failing to object to the autopsy report and the testimony of witnesses Sherrod and Bristow. We conclude that counsel was not incompetent and affirm.

Appellant said in a pretrial statement and at trial that the victim Wiley Johnson angrily approached his truck on a lonely road and j erked open the door, saying he was going to kill him. Appellant said that to protect himself, he shot Johnson once in the leg. The blast from appellant’s shotgun struck an artery causing Johnson to back off and appellant fled in his truck leaving Johnson on the road. According to a state trooper who gave first aid to the victim, Johnson declared he was dying and said appellant had shot him. Johnson bled to death before help could arrive.

Appellant’s trial counsel testified that after talking to petitioner he believed his best defense to be justification. When counsel formed his theory of the defense, he was aware that there had been a dying declaration and that petitioner had told his sister that he shot Johnson. Evidence was also available to show that petitioner was having an affair with a married woman with whom Johnson may also have been romantically involved. On the day petitioner shot Johnson, petitioner told the woman’s husband Richard Sherrod that both he (the appellant) and Johnson had been seeing Sherrod’s wife. Later in the day, Johnson told appellant that a person could get killed telling things like that. Soon thereafter, Johnson stopped petitioner and was shot by him. Another potential witness said that petitioner had told her that he was afraid of losing Mrs. Sherrod, whom he planned to marry, to Johnson. Richard Sherrod had heard petitioner refer to Johnson as a “son of a bitch” who was the cause of the problems between Sherrod and petitioner. The fact that there was substantial evidence of petitioner’s guilt even if he gave no statement is significant in assessing counsel’s advice because what counsel knew at the time he advised petitioner is pertinent, not what evidence the State eventually decided to present at trial. Clearly, the State did not offer the evidence that was available only because the issue had become whether appellant acted in self-defense.

Counsel at first advised petitioner to remain silent. He advised him to give a statement only after weighing the evidence against him and considering the likelihood that self-defense could succeed as a defense in view of the facts of the case. (It may even be said that the strategy was a success in light of the j ury’ s finding him guilty of manslaughter rather than second degree murder.) Once counsel decided in his professional judgment that justification was a plausible defense, he adopted a trial strategy which included petitioner’s making a statement and testifying at trial in line with the contents of the statement to point out to the jury that he had consistently been forthright and honest. There is no doubt that other attorneys could advance other strategies which might not include giving a statement and claiming justification, but this in itself does not make counsel ineffective. See Scantling v. State, 271 Ark. 678, 609 S.W.2d 925 (1981). Matters of trial tactics and strategy which can be a matter of endless debate by experienced advocates are not grounds for postconviction relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1975). Petitioner himself made the point that counsel’s decision was a matter of debatable trial tactics by calling as witnesses at the postconviction hearing several experienced attorneys who said they would have handled the defense differently. The State countered with attorneys who testified that counsel had employed sound trial strategy.

With regard to counsel’s failure to object to the autopsy report and to the testimony of witnesses Sherrod and Bristow, counsel’s testimony at the Rule 37 hearing indicates that the decision not to object was also a tactical one, based on the premise that petitioner had nothing to hide from the jury. Also, petitioner has failed to demonstrate that there was any sound basis for an objection or that he was unduly prejudiced by the failure to object. A showing of prejudice is required before postconviction relief is appropriate. Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052 (1984).

The United States Supreme Court recently provided guidelines for assessing attorney performance in the area of investigation of a defense. These guidelines are applicable to petitioner’s case.

A fair assessment of attorney performance 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. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. Strickland v. Washington.

At most petitioner has established that not all attorneys would have pursued the defense of justification or allowed him to give a pretrial statement. The benchmark forjudging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland v. Washington. We cannot say here that counsel’s tactical decisions denied him a fair trial.

Petition denied.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I agree that Strickland v. Washington, _ U.S. _, 104 S.Ct. 2052 (1984) correctly sets forth the standard required in determining whether a defense attorney was ineffective. The correct standard of performance to be applied is that of “reasonably effective assistance.” Strickland, supra. All federal courts appear to have adopted this standard. The criteria to be used in judging the standard is where the trouble arises. I agree with Strickland that a defendant-petitioner must first show that counsel was deficient and additionally must prove prejudice. This court has many times held that a petitioner must not only show ineffective assistance of counsel but must also show he was prejudiced, thereby. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). I find no conflict between our holding and that of Strickland and the federal courts. Therefore, for the purposes of this dissent Strickland is the standard.

We all agree that both the State and Federal Constitutions give an accused the right to competent counsel and a speedy and fair trial before an impartial jury. The fact that a person with a license sits at the side of the accused is not sufficient to meet the constitutional standards of assistance of counsel. The purpose of counsel is to provide and protect the fundamental rights of assistance of counsel and fair trial which are guaranteed to everyone accused of a crime. When counsel, whether appointed or retained, fails to measure up to the reasonably effective standard the result is that the accused did not receive a fair trial.

I realize that hindsight is always more accurate than foresight. To second guess the strategy of defense counsel is a dangerous thing. Even the trial attorney would likely change some tactics if he were permitted to retry a case. Likely the two best criminal defense lawyers in the country would not try the same case in the exact same manner. Therefore, I will limit my dissent to the single issue of the trial counsel allowing appellant to make a confession. The record of the trial on the appeal of this case did not reveal there was a dying declaration or that counsel had any idea one was made. Hindsight on the part of the State also affords an opportunity to straighten out some of the rough spots. If such a statement was made the only possible reason for the State not having introduced it at the trial is that appellant’s confession and testimony make the declaration unnecessary. As I understand the facts appellant obtained the services of the attorney before he talked to the officers. His confession provided the motive and details of the offense. It furnished leads and within itself likely made a prima facie case. Without the confession the record of trial reveals the State at most had substantial evidence. The confession brought in the adulterous affair which no doubt was considered by the jury in determining appellant’s guilt.

Another reason I think the confession idea was not reasonably effective assistance is that there was no indication there would be any consideration whatsoever in return for the confession. The fact that there was no plea bargaining or anything of that nature indicates appellant gave up his Fifth Amendment right to remain silent without receiving even a pat on the head in exchange.

The present case resembles Strickland only in subject matter. In Strickland, the accused surrendered to the polce and voluntarily gave a lengthy statement and confession. His attorney was further surprised to learn that his client had confessed to two other murders after the attorney had advised him not to talk. Again acting against his attorney’s advice he waived trial by jury and pleaded guilty to all three murders. Furthermore, he waived a jury on the sentencing phase in spite of the fact that his attorney recommended a jury. In the case before us it was the attorney who advised appellant to confess. The per curiam in this case dwells on facts which were not in the trial record. There was no mention in the trial record of a dying declaration. Neither was there anything about trial strategy included in the record. The very least that could be said is that the confession did not help the appellant. He received the maximum sentence allowed for manslaughter. The record of the trial leaves me with the impression that had counsel not advised appellant to confess the State would probably not have been able to prove a case. The appellant relied on the advice of his lawyer. Strickland went against the advice of his lawyer. It is my opinion that a lawyer who advises his client to confess is rendering less than reasonably effective assistance unless there is a corresponding concession by the State or there are other special circumstances. There is no doubt but that appellant’s lawyer is of the highest character and ability but even the best lawyer in the world sometimes makes a mistake.

Hollingsworth, J., joins in this dissent.


text:
    Leonard GINTER v. STATE of Arkansas
    CR 84-74
    672 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered July 16, 1984
    Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst Att’y. Gen., for respondent.
   Per Curiam.

The petition for Writs of Certiorari and Mandamus is denied.

Purtle and Hollingsworth, JJ., would grant.

John I. Purtle, Justice,

dissenting. The petitioner has been in custody in a county jail since June 3, 1983. He has filed several motions to set bond for his release. He has also filed in this court petitions for certiorari, habeas corpus, to recuse the j udge, to change venue, and to be released on bond or to have the charges dismissed for failure to comply with our speedy trial requirements. I reiterate the matters expressed in my dissent of June 4,1984. However, I was in error when I said that the petitioner paid $2,800 for a court reporter’s transcript consisting of 250 pages. The transcript, which has not yet been verified, contains 1,150 pages.

We granted certiorari on June 4. The partial record which we have received leaves much to be desired. For example, numerous subpoenas have been included in the record. Also, most of the pleadings in a Federal District Court case have been included in the record. Many duplications have occurred. Much of this material is not relevant and only serves to waste time and money. We do not have a copy of the docket entries which frequently are important as they are in this case. The record does reveal that petitioner has filed at least two motions for continuance. One sought an indefinite continuance. The record indicates the trial court held at least two hearings on the issue of whether petitioner was entitled to bail. The court has continued to hold him without bond.

It is most difficult for a prisoner to represent himself while confined to the county jail. Petitioner has obviously attempted to do everything within his power to protect his rights. Perhaps it would have been wiser had he chosen to allow one of the lawyers to represent him in all proceedings. However, he has a constitutional right to represent himself. If we adhered to A.R.Cr.P. Rule 28.1(a) the petitioner was entitled to be released upon his own recognizance after being in jail nine months, excluding only such periods of necessary delay as are au thorized by Rule 28.3. He has been in j ail well over a year. We do not know whether he is being held in violation of this rule. The presumption is that he should be released. I realize he may bring the speedy trial issue before this court on appeal of his conviction if he has properly preserved the point. When a person has been held in prison for a time in excess of that authorized bylaw we should take extra precautions to see that the person detained has been afforded his constitutional rights. In this case, there are many allegations that petitioner is being held illegally and it is obvious that he has been held beyond the time allowed by Rule 28.1(a). I would release the petitioner on his own recognizance until he is given a trial.

Hollingsworth, J., joins in this dissent.


text:
    Leonard GINTER v. STATE of Arkansas
    CR 84-74
    675 S.W.2d 820
    Supreme Court of Arkansas
    Opinion delivered August 10, 1984
    Petitioner, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petition for Habeas Corpus on behalf of Leonard Ginter is heard and considered this date. Although it does not appear that Cassius Lee Peacock is a licensed attorney, the petition is considered as having been filed by Leonard Ginter.

In view of the fact that this matter has been considered by the entire Court on June 4, 1984 and June 18, 1984, it is determined that to grant the petition would be contrary to the views of a majority of the Justices on this Court and would be improper.

Petitioner and the state appeared and argued their case. Although Leonard Ginter has been held in a county jail for 14 months without trial, his trial is now scheduled for August 27,1984. He is not entitled to release because the trial court and the majority members of this Court have held he is not illegally detained according to the record before this Court. This order is without prejudice to^any point petitioner wishes to present on appeal.

Writ denied.


author: George Rose Smith, Justice,

text:
    Robert Edward TROUTT v. Judge John LANGSTON and Tommy ROBINSON
    CR 84-141
    675 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered August 21, 1984

      Guy Jones, Jr., for petitioner.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Temporary Writ of Mandamus is granted. The bondsman may surrender the defendant without cause pursuant to Ark. Stat. Ann. § 43-716 (Repl. 1977) only if the consideration for making the bond is returned to the defendant.

Adkisson, C.J., Purtle and Hays, JJ., concur.

George Rose Smith, J., dissents.

George Rose Smith, Justice,

dissenting. I think the bondsman had an absolute right to avoid possible liability by surrendering the petitioner to the jailer. Ark. Stat. Ann. § 43-716; Craig v. State, 257 Ark. 112 (1974). The petitioner might have raised the question, in the Court below, of his entitlement to a return of the money he paid the bondsman, but that question was not raised below and is not before us on a petition for a Writ of Mandamus.


text:
    Curtis HOWARD and Billy HOWARD v. STATE of Arkansas
    CR 84-7
    674-S.W.2d 936
    Supreme Court of Arkansas
    Opinion delivered September 10, 1984

      James M. Simpson, for appellant Curtis Howard.

      Cynthia L. Fearno, for appellant Billy Howard.

      Steve Clark, Att’y Gen., by: Velda West Vanderbilt, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

The two appellants, Curtis and Billy Howard, brothers, were charged with and convicted of aggravated robbery and theft of property. Curtis, as an habitual offender, was sentenced to consecutive terms of life and 30 years. Billy was sentenced to concurrent terms of 10 and 5 years. In separate briefs they argue that owing to various gaps in the State’s proof it is insufficient to sustain the convictions. Viewing the evidence most favorably to the appellee, we find it amply sufficient. In narrating the events as the jury could have fairly believed them to have occurred we will refer to the two brothers by name, though some of the witnesses could only describe Curtis Howard as a short black man and Billy Howard as a tall black man.

The robbery occurred early in the afternoon on February 4, 1983. The brothers first drove up to the Safeway store in Pine Bluff, in a black Mercury sedan owned by Curtis. After circling the store twice they parked, entered the store, came out, and drove away. They returned shortly and parked across the street. Curtis got out and went to the store, pulling on a ski mask. A witness who saw him before he was masked identified him later from a photograph.

In the store Curtis, armed with a pistol, held up the manager and his assistant. Curtis was wearing a plaid shirt, blue jeans, and shoes with white rubber soles. He took about $3,500, mostly in packages of $20 bills. Curtis was seen as he ran from the store with a gun in one hand and a sack in the other. He ran across the street and got in the car, where Billy was waiting. A witness who saw them pursued them in his car. He saw a ski mask being thrown from the car. He followed the fleeing vehicle for two miles and wrote down the license number, which, after the two men had been apprehended, was found to be that of Curtis’s car.

An off-duty officer heard a police-radio broadcast describing the crime and the car. The officer, reasoning that the robbers might have fled on Highway 79, jumped into his own unmarked car and drove south on that highway at a speed of 85m.p.h. or more. After 10.9 miles he overtook a car corresponding to the broadcast description, occupied by two men, and being driven at about 55 m.p.h. The officer radioed ahead for a road block and followed the car until it was halted at the road block.

The two men in the car were Curtis and Billy Howard. Curtis had evidently changed clothes, for the plaid shirt and blue jeans were in the back seat, but he was still wearing shoes with white rubber soles. Curtis said he had $500 in his pocket but a search showed the amount to be only $54. Billy had $400 in his pocket in folded $20 bills, and another $79. The officers saw two $20 bills sticking out of the bottom of a car door. Curtis said that they had set out to buy a car and had put $ 1,000 in their car door because they were afraid they would be robbed in Pine Bluff. When the panel of the door was peeled back, the officers found $400 in $20 bills. There are other lesser incriminating circumstances we need not detail. Neither brother made a statement to the police or testified at the trial.

In questioning the sufficiency of the State’s proof the appellants point out that the gun and most of the stolen money were never found and that there are minor discrepancies in the testimony for the prosecution. Granted, but there is nevertheless much substantial evidence of guilt. Curtis’s explanation that he and his brother had started out with cash to buy a car cannot be squared with his not knowing even approximately how much money was in his pocket or in the car door. A defendant’s false and improbable explanations of incriminating circumstances are admissible as proof of guilt. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). That the two brothers had $800 in bills of the same denomination as those taken is a further indication of guilt. The pistol and the rest of the money could easily have been disposed of had the two men stopped for a few seconds to hide those articles while their car was not being followed. The jury doubtless found it impossible to believe that Billy Howard could have been apprehended in the getaway car a few minutes after the robbery, some 15 miles away, with $400 in his pocket, and yet be innocent of any knowledge that his brother had just committed a planned robbery. There is an abundance of substantial evidence to support the jury’s conclusion that both defendants were guilty participants in the crimes.

Affirmed.


text:
    William R. GROOMS v. STATE of Arkansas
    CR 84-44
    675 S.W.2d 353
    Supreme Court of Arkansas
    Opinion delivered September 10, 1984

      Honey & Rodgers, by: Danny P. Rodgers, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was tried before a jury as an habitual offender on a charge of theft by receiving and was sentenced to 20 years in the Arkansas Department of Correction and fined the sum of $10,000. After giving notice of appeal the attorney for appellant dismissed the appeal by and with the expressed consent of the appellant. Subsequently the present counsel initiated a timely Rule 37 hearing wherein it was alleged that the statute pursuant to which appellant was tried is unconstitutional; that the court erred in trial procedure; that appellant did not knowingly and intelligently waive his right to appeal; and that the appellant was denied effective assistance of counsel. We do not agree with any of these arguments.

The facts upon which the conviction and sentence are based are not involved in this appeal. All four arguments presented by appellant are matters of law and procedure. The appellant was tried on charges of theft by receiving and of being an habitual offender. During the course of the trial appellant was asked questions relating to his past criminal activities. The guilt and penalty determinations were submitted to the jury at the same time with the consent of the appellant. The constitutionality of Ark. Stat. Ann. § 41-2206(3) (Repl. 1977) was not challenged at the trial. After being notified that he did not have to testify, the appellant took the stand for the apparent purpose of refuting the presumption that appellant knew the merchandise in question was stolen. The statute and AMCI 2206 state that the unexplained possession of recently stolen property may be considered as evidence of guilt. The trial attorney made practically no objections to any matter presented by the state.

The first argument by the appellant is that Ark. Stat. Ann. § 41-2206(3) and AMCI 2206 are unconstitutional. It is argued that they violate Article 2, Sec. 8 of the Constitution of Arkansas and Amendment 5 to the Constitution of the United States. Specifically it is argued that AMCI 2206 is in conflict with AMCI 111. This court upheld the constitutionality of the statute here in question in the case of Newton & Stricker v. State, 271 Ark. 427, 609 S.W.2d 328 (1980).

It was not prejudicial error for the court to submit to the jury both the guilt and sentence questions at the same time. Spears, Cassell & Bumgarner v. State, 280 Ark. 577, 660 S.W.2d 913 (1983). Neither may this question be considered on an appeal of denial of post conviction relief. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). The appellant and his counsel specifically agreed that both the guilt and sentence questions would be presented to the jury at the same time.

The appellant’s other points for reversal will be considered together since they involve claims of ineffective assistance of counsel. During the trial appellant took the stand in his own defense. During direct examination he was asked, “Do you have any previous convictions?” His reply was, “I’ve been in and out of trouble ever since I was about 14 years old.” It is obvious that the strategy of defense counsel may well have been to “lay the cards on the table.” The strategy could have been to reveal to the jury, prior to cross examination, the record and convictions which would no doubt be inquired about by the state. The plan may well have been intended to present to the jury a man who had “learned his lesson” from his prior experiences with criminal activities and who. was now a “new person.” Trial counsel was not ineffective for failure to raise the constitutionality of Ark. Stat. Ann. § 41-2206 and AMCI 2206 because this court had previously decided the question in the case of Newton & Stricker v. State, supra.

The record on appeal of the original conviction was due to be filed in this court no later than April 20, 1983. The record was certified by the circuit clerk on February 14,1983. Both the trial attorney and the attorney retained for appeal testified that appellant indicated a desire to drop the appeal even before the transcript was finished. The appellant signed a request for withdrawal of his appeal, on May 3,1983. The attorney who was to do the appeal testified that he would have followed through with the appeal had appellant not requested that it be withdrawn.

Neither mere errors, omissions or mistakes nor improvident strategy or bad tactics will suffice to prove ineffective assistance of counsel. In order to establish ineffective assistance of counsel it must be shown that the appellant was prejudiced, and clear and convincing evidence must be presented that the ineffective assistance resulted in appellant’s failure to receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). The United States Supreme Court recently held that our standards set out in Blackmon are proper standards to be used in determining effective assistance of counsel. Washington v. Strickland, _U.S. _, 104 S. Ct. 2052 (1984).

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Homer WOMACK and Pat WOMACK v. Roy HORTON d/b/a HORTON TOMATO COMPANY
    84-109
    674 S.W.2d 935
    Supreme Court of Arkansas
    Opinion delivered September 10, 1984
    [Rehearing denied October 15, 1984.]

      Gibson Law Firm, by: John F. Gibson, Jr., for appellant.

      Haley & Claycomb, by: Stark Ligón, P.A. for appellee.
   Robert H. Dudley, Justice.

The sole issue on this appeal is whether the trial court was right in deeming plaintiff’s requests for admissions admitted because the responses were not filed within the thirty days allowed by ARCP Rule 36 (b). We find the trial court was correct. Jurisdiction is in this court under Rule 29 (1) (c).

After the complaint and answers had been filed, the plaintiff, on September 9,1983, filed seventeen requests for admissions. At the same time, copies of the requests were mailed to the defendant’s attorney. On October 27, 1983, which the trial court found to be at least 45 days after completion of service, the defendants filed answers which were not verified. On November 3,1983, the trial court ruled that the requests for admissions should be deemed admitted and that, since no material facts were in dispute, the plaintiff was entitled to a summary judgment. Verified answers were later filed, on November 28,1983, and the defendants moved to vacate the judgment. The trial judge ruled that once requests for admissions are deemed admitted, the court is without power or discretion to permit a withdrawal or amendment of the admissions. ARCP Rule 36 (b) does give the trial court power and discretion to permit withdrawal of an admission. The rule states that “any matter admitted. . . is conclusively established unless the court on motion permits withdrawal or amendment of the admission.”

The result, however, must be affirmed in this case. The trial court deemed the non-verified Requests for Admissions to be admitted because the response was 18 days late. The rule provides that the “matter is admitted unless, within 30 days after service of the requests, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or his attorney. . .” (emphasis added). The policy of this court through the years has been to require compliance with the rule governing responses to requests for admissions. Barnett Restaurant Supply, Inc. v. Vance, 279 Ark. 222, 650 S.W.2d 568 (1983), citing Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980); White River Limestone Products Co. v. Mo. Pac. Rd. Co., 228 Ark. 697, 310 S.W.2d 3 (1958). If the responses are not on time or are faulty for some other reason, such as not being signed by the parties or being inadequate and deficient, this court has made it a practice of deeming the requests to be admitted. Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). However, we do examine the particular facts of each case and, when the facts warrant, require acceptance of late responses. For example, in Gatlin v. Cooper Tire and Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972), we reversed the trial court and held that a response which was three days late should have been accepted because the complaint was amended after the request was filed. In the case at bar, however, the eighteen day delay was inexcusable and the trial court quite properly deemed the requests admitted.

Affirmed.


text:
    Walter B. MASON v. STATE of Arkansas
    674 S.W.2d 937
    Supreme Court of Arkansas
    Opinion delivered September 10, 1984

      David L. Gibbons, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Walter B. Mason, by his attorney, David L. Gibbons, has filed a motion for rule on the clerk.

The motion admits that the transcript of the case was not timely filed and it was no fault of the appellant. The appellant’s former attorney, Ralph Lowe, admitted by affidavit attached to the motion that the transcript was filed late 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 February 5,1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Michael Daniel HERRINGTON v. STATE of Arkansas
    674 S.W.2d 505
    Supreme Court of Arkansas
    Opinion delivered September 10, 1984

      Bruce D. Switzer, for appellant.

      Steve Clark, Att’y Gen., by: Theodore G. Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Michael Daniel Herrington, by his attorney, has filed for a rule on the clerk. His attorney, Bruce D. Switzer, admits that the record was tendered late 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 February 5,1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.