author:
George Rose Smith, Justice. Robert H. Dudley, Justice, Steele Hays, Justice,
      George Rose Smith, Justice, Jack Holt, Jr., Justice,

text:
    CITY OF HOT SPRINGS; HOT SPRINGS ADVERTISING & TOURIST PROMOTION COMMISSION; ARKANSAS BANK & TRUST COMPANY; and FIRST NATIONAL BANK OF HOT SPRINGS v. Tom CREVISTON
    85-237
    705 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986
    [Supplemental Opinion on Denial of Rehearing April 15, 1986.]

      Wooten, Glover, Sanders, Slagle, Parkerson & Hargraves, P.A., by: Richard H. Wooten and Robert S. Hargraves, for appellant, First National Bank of Hot Springs.

      Wood, Smith & Schnipper, by: Ray S. Smith and James W. Chesnutt; and Friday, Eldredge & Clark, by: Herschel H. Friday, John C. Echols, John Dewey Watson, Robert K. Walsh and Robert S. Schafer, for appellant, Arkansas Bank & Trust Co.

      Carl A. Crow, Jr., City Att’y, and G. Latía Bachelor, III, Deputy City Att’y, for appellants, City of Hot Springs and Hot Springs Advertising and Tourist Promotion Commission.

      Harkey, Walmsley, Belew & Blankenship, by: John Norman Harkey, for appellee.

      Steve Clark, Att’y Gen., by: Curtis L. Nebben, Deputy Att’y Gen., for intervenor, State of Arkansas.
   George Rose Smith, Justice.

This is a taxpayer’s suit attacking the validity of a $3,000,000 municipal bond issue that was sold primarily to pay existing obligations of Magic Springs Theme Park, a privately owned amusement park in or near the City of Hot Springs. Creviston’s complaint for a declaratory judgment and injunctive relief was filed in 1984 against the four appellants: the City of Hot Springs, its Advertising & Tourist Promotion Commission, and two Hot Springs banks. After an extensive trial the chancellor held that the bonds are invalid, for three reasons: The bonds were not issued for the “establishment” of the theme park; they were not issued for a public purpose; and they were not authorized by an election. We need consider only the matter of a public purpose and the need for an election, those issues being decisive.

Magic Springs was created in 1978 as a privately owned amusement park, with the hope that it would be profitable. The promoters contributed some funds to the project, but the bulk of the initial cost was borne by a $4,000,000 Garland County bond issue, secured at least in part by revenues to be derived from the operation of the park.

Apparently the venture lost money from the beginning. By 1982 the county bonds were in default, and there were substantial debts to the banks for money lent. At that time Paul Burge, an officer of First National Bank, was made president of the park company to try to work out its financial problems. The chosen solution was for the creditors to persuade the City to issue the $3,000,000 of bonds now in question. The bonds are secured by a pledge of the gross receipts tax levied by the City upon hotels and restaurants in the City. See Ark. Stat. Ann. §§ 19-4613 et seq. (Repl. 1980 and Supp. 1985). In the bond indenture the City agrees not to repeal that tax until the bonds have been paid. (The General Assembly, in Act 976 of 1985, declared “that the hotel and restaurant tax is not a ‘tax’ as ‘taxes’ are ordinarily understood,” but in the statutes authorizing the levy the legislature correctly called it a gross receipts tax. Its character cannot be changed by a legislative declaration.)

Arkansas Bank & Trust bought $2,000,000 of the bonds; First National bought the other $ 1,000,000. Those proceeds were immediately disbursed, with a total of $2,577,875.09 going back to the banks. After all other disbursements the sum of $260,282.46 was left for the park company to use in its effort to escape from its financial plight. That effort evidently failed, for at the trial there was a reference to the park’s being offered for sale to the highest bidder.

The issue of public purpose may be disposed of quickly. Had the bonds been issued at the outset to create Magic Springs as a tourist attraction, the appellants would be in a better position to argue public purpose than they now are, in view of what has happened. By 1982 it was known that Magic Springs had consistently lost money during its brief life. The county bond money had been spent, and the bonds were in default. Obligations to the banks were delinquent. Most of the proceeds from the sale of the city bonds were used to pay loans held by the banks and to pay the original promoters on some theory not made entirely clear. The chancellor was right in finding that the City’s attempt to use tax money to bail out the creditors of a privately owned venture was not designed to accomplish a purpose primarily public in nature.

Whether an election was required for the issuance of the bonds is not an equally simple question. We reject at once the bank’s argument that the case should be governed by Purvis I, Purvis v. Hubbell, 273 Ark. 330, 620 S.W.2d 282 (1981). In that case we closed our opinion by giving unmistakable notice that our interpretation of the Constitution with regard to the necessity for popular approval of bonds would be reconsidered at the next opportunity. That case was decided on July 13,1981. The bonds now in question were not issued until about a year later; so no one could assume that the position taken by the court in Purvis I would be adhered to.

Ever since the adoption of our Constitution in 1874, it has positively prohibited the issuance of bonds by a city or county without an election. In its original form, Section 1 of Article 16 stated that no county or city should lend its credit, “nor shall any county, city, town or municipality ever issue any interest-bearing evidences of indebtedness,” except to pay debts then existing. Exceptions to the broad prohibition were created by Amendments 13, 17, 25, and 49, to permit the issuance of bonds for various purposes, but every one of the Amendments retained the requirement that the bond issue first be approved at an election. All four of those Amendments have now been incorporated in Amendment 62, adopted in 1984, but it too requires the consent of a majority of the electors.

Despite the constitutional ban against the issuance of municipal bonds without popular approval, this court created an exception more than 50 years ago. Snodgrass v. City of Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). There the city, pursuant to a 1933 statute, adopted an ordinance authorizing the issuance of bonds without an election, to finance improvements to the municipally owned water works. This court approved the proposal, giving its reasons in two sentences that have been often quoted to justify the creation of additional exceptions to the constitutional prohibition:

It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.

The Snodgrass opinion did not explain why it was manifest that the framers of Amendment 13 did not really mean what they said. In truth, the framers had anticipated the very problem that confronted the City of Pocahontas by providing in the Amendment that although only a five-mill tax could be levied for the twenty-odd improvements listed in the Amendment, an additional five mills was authorized to secure bonds issued for the acquisition or improvement of light plants or water works. Thus the framers did intend for the people to be taxed to pay for the very type of improvement that Pocahontas contemplated.

The successive cases by which the breach in the constitutional prohibition has been gradually widened were reviewed in three of the opinions in Purvis II and need not be reexamined. Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936, 669 S.W.2d 900 (1984). That case might have been “the next opportunity” anticipated in Purvis I, but the great diversity of individual views in Purvis II, producing six separate opinions, resulted in there being no majority opinion.

The banks’ reliance on Purvis I puts the issue squarely before us again. We believe that the only proper and permanent course is for us simply to give effect to the plain language of the Constitution. It states that no city or county shall ever issue interest-bearing evidences of indebtedness without the consent of the electors. That mandate is binding. It includes, of course, transparent evasions by which a token commission or other body is created to sign the bonds while disclaiming any responsibility on the part of its creator. There having been no election in the case at bar, the bonds are invalid for that reason also. (We recognize that if any bonds have been issued in reliance on Point 1 of our supplemental opinion on rehearing in Purvis II, those bonds would not be affected by today’s decision.)

The City also appeals from the trial court’s allowance of a $30,000 fee to the appellee’s attorney, to be paid by the City. It has consistently been the rule in Arkansas that attorney’s fees are not chargeable as costs in litigation unless specifically permitted by statute. The legislature authorized the payment of such fees in cases in which the court orders a county or city to refund money to the taxpayers. Ark. Stat. Ann. § .84-4601 (Repl. 1980). Here, however, no such refund was ordered. In that situation the statute does not apply. Munson v. Abbott, 269 Ark. 441, 602 S.W.2d 649 (1980).

It is also argued that, on the authority of Crittenden County v. Williford, 283 Ark. 289, 675 S.W.2d 631, 679 S.W.2d 795 (1984), and Black v. Thompson, 237 Ark. 304, 372 S.W.2d 593 (1963), the fee should be allowed on a theory of unjust enrichment, in that the City would have continued to waste the taxpayers’ money if this suit had not been brought. Neither case supports the argument. In Williford the fee was allowed because the taxpayer’s suit had created a common fund in court, for the benefit of the taxpayers. Here there has been no similar recovery. In Black the fee was allowed in an administration proceeding on the authority of a provision in the Probate Code, Ark. Stat. Ann. § 62-2208 (Repl. 1971), with unjust enrichment being discussed as a second basis for the allowance. There, however, the heirs had directly benefited from the attorney’s services in defending a fraudulent claim. The situations are not comparable. The allowance of the attorney’s fee in the present case must be set aside.

As so modified the decree is affirmed.

Purtle, J., not participating.

Dudley, J., concurs. Hays, J., concurs and dissents.

Robert H. Dudley, Justice,

concurring. I concur in holding that the City’s attempt to use tax money to bail out the creditors of a privately owned venture was not a use of tax money for a public purpose. For that reason the bond issue is invalid.

Unfortunately, the majority opinion goes much farther and overrules Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934), and its progeny. Since Snodgrass, supra, this court has consistently held that the Constitution of Arkansas authorizes cities to incur long term debt for the purpose of making authorized improvements for public purposes, without conducting an election, if the debt is to be repaid solely out of revenues generated by those improvements, and the repayment does not place a burden on the taxpayer for which his property might be appropriated. For 52 years this court has not deviated from that holding. Two constitutional amendments, Numbers 49 and 62, and various statutes, have been enacted in reliance on that holding. I would not overrule Snodgrass, supra.

Steele Hays, Justice,

concurring and dissenting. I concur in the result because the chancellor found the retirement of these bonds included the pledging of hotel and restaurant taxes, thereby bringing the case within the caveat announced in Purvis v. Hubbell, Mayor, 273 Ark. 330, 620 S.W.2d 282 (1981) and, hence, requiring an election. Beyond that, I respectfully disagree with the majority.

By this decision the court is overruling a line of cases which began with McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W. 1037 (1932), and was quickly followed by Jernigan v. Harris, 187 Ark. 705, 187 S.W. 705 (1932) and Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W.2d 223 (1934). The rule, as stated in Snodgrass, is that revenue bonds for a public purpose may be issued without an election so long as the bonds are not an obligation of the taxpayers but are paid solely from funds generated by the facility built or acquired with the proceeds of the bonds.

That principle has been followed unerringly by this court for over fifty years and has been approved by scores of individual members of this court. Without saying so, the court has today overruled Snodgrass v. Pocahontas and swept away a host of cases dealing generally or specifically with the principle: Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936, 669 S.W.2d 900 (1984); Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984); Purvis v. Hubbell, Mayor, 273 Ark. 330, 620 S.W.2d 282 (1981); Holmes v. Cheney, 234 Ark. 503, 352 S.W.2d 943 (1962); Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962); McArthur v. Smallwood, 225 Ark. 328, 281 S.W.2d 428 (1955); Williams v. Harris, 215 Ark. 928, 224 S.W.2d 9 (1949); Jacobs v. Sharp, 211 Ark. 865, 202 S.W.2d 964 (1947); City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W.2d 12 (1946); Robinson v. DeValls Bluff, 197 Ark. 391, 122 S.W.2d 552 (1938); Jernigan v. Harris, 187 Ark. 705, 62 S.W.2d 5 (1933); McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W.2d 1037 (1932).

I concede that no court should be powerless to correct bad law, but I contend Snodgrass v. Pocahontas is sound law and should not be overturned. It has stood the test of half a century and the scrutiny of numerous judges. It has been frequently reaffirmed and ought not to be so easily rejected, at least not without more persuasive reasons than are provided by the majority.

In Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633, decided in 1960, the court quoted with approval language from the Snodgrass opinion which the court now holds to be erroneous:

It was manifestly the intention of the framers of Amendment 13 to prohibit cities and towns from issuing interest-bearing evidence of indebtedness, to pay which the people would be taxed, or their property appropriated to pay the indebtedness, or any indebtedness that placed any burden on the taxpayers. It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness.

Less than two years ago in Purvis v. Little Rock, (Purvis II) 282 Ark. 102, 667 S.W.2d 936 (1984), this language was quoted with approval:

This court has approved a line of cases going back at least to the 1932 case of McCutchen v. Siloam Springs, supra, which hold that municipalities may issue pure revenue bonds for purely essential public purposes without holding an election.

Moreover, in a supplemental opinion to Purvis II, five of the seven members of this court pointedly emphasized that the Snodgrass v. Pocahontas holding was not impaired by the Purvis IIdecision. A few months later in Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984), a majority of this court again embraced the principle now being renounced. Justice Dudley’s concurring opinion from Purvis II was quoted approvingly by the majority in Murphy v. Epes:

Our cases constitute a well developed body of precedent, now stretching over half a century, by which this court has consistently interpreted the constitution to authorize governments to incur long term debts, without elective approval, in order to make authorized improvement for public purposes when the debt is to be paid out of revenues. (At p. 522).

Today’s opinion has this to commend it — it provides a solution for the confusion which followed the Purvis I caveat. But that alone does not justify the extreme step taken today when a viable alternative is open, one which, I believe, is consistent with precedent. That is to adhere to the long standing principle of Snodgrass v. Pocahontas, applying at the same time the caveat of Purvis I by requiring an election as to those projects which entail the use of revenues from sources outside the improvement itself to retire the bonds. That, I submit, is what the Purvis caveat was meant to say. True, these taxes are a subordinate, rather than a primary, guaranty, but if the revenues from the Magic Springs project prove inadequate to meet the indebtedness (which appears to be the case), these tax revenues are irrevocably committed. In that respect they pose a liability that the taxpayer alone can authorize under our constitution.

713 S.W.2d 230

With respect to the public purpose issue, I respectfully disagree that, the Magic Springs Theme Park is so lacking in a public purpose that the judicial branch should override a legislative decision to the contrary. Those views are discussed in a dissenting opinion in Ft. Smith v. O’Loughlin, decided today, and in general are applicable here!

Supplemental Opinion on Denial of Rehearing delivered April 15, 1986

George Rose Smith, Justice,

on rehearing. The petition for rehearing must be denied, but certain questions raised in it and in several supporting petitions require comments about a few points that are closely related to the issues actually before us when this case was first decided.

Fears are expressed that the court’s opinion creates doubts about the validity of revenue bonds that were issued, without an election, before the date of the court’s opinion, March 3, 1986. Not one of us had or has the remotest intention of invalidating bonds that were issued in reliance on the court’s earlier decisions. Nor was it the court’s intention to hold that the Constitution does not permit the use of revenue bonds by counties and cities. Like other interest-bearing securities, however, revenue bonds must be approved by the electorate.

In general, our opinion is prospective, but there is an exception as to the bonds involved in this case — the Magic Springs bonds issued by the Hot Springs Advertising & Tourist Promotion Commission. Under our prior decisions an exception is made with respect to the particular case in which earlier cases are overruled. That is necessarily true, for otherwise there would be no reason for a litigant to devote the required time, effort, and money to an attack upon existing unsound precedents. Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968).

The cities of Plainview and Eureka Springs request directives about their special problem. They say they have gone so far toward entering into contracts and committing funds for capital-improvement bond issues that they should be allowed to proceed, else they will suffer penalties. The Plainview petition is contested by citizens who say related litigation is in progress. Serious questions of fact may exist or may arise. In a rare situation it is possible that the rights of the public may have vested to such an extent that the bond issue could be approved by a declaratory judgment. Such cases, however, cannot be passed upon in the first instance at the appellate level.

A petition filed by the Little Rock Municipal Water Works argues that our original opinion had no constitutional basis, because Section 1 of Article 16 of the Constitution, which provides that no county or municipality shall ever issue interest-bearing evidences of indebtedness, was repealed by Amendment 62. The theory is that Amendment 13 amended Section 1 “to read as follows,” and therefore when Amendment 62 repealed Amendment 13, the result was to strike out Section 1 as well.

This argument has no substance. Amendment 13 recopied Section 1, which was only a single paragraph, and then added an 11-paragraph proviso detailing how cities, but not counties, could issue tax-supported bonds for some 20 different capital improvements. Thus Section 1 continued in full force, with a proviso. When Amendment 62 repealed Amendment 13, obviously the intent was to repeal only what had been added by the Amendment, not the original Section. In fact, Amendment 62 contains substitute provisions by which the power of cities to issue tax-supported bonds for the making of capital improvements is preserved. If the authors of Amendment 62 meant to repeal Section 1 of Article 16, they should and would have said so. In no other way could the voters have been put on notice that by adopting Amendment 62 they were destroying a safeguard that had existed for more than a century.

Finally, a number of the petitioners ask us to suspend the operation of the Constitution to allow for the passage of enabling legislation and the possible adoption of a constitutional amendment. Ever since Marbury v. Madison, 1 Cranch 137, was decided in 1803, the Supreme Court has had the responsibility of interpreting the United States Constitution and the state courts that of interpreting the state constitutions. But the judicial authority does not extend beyond interpretation. The courts do not have the power to hold a constitutional mandate in abeyance; they should not have that power. The constitutional way of doing things may be slow at times, but it is the right way. If a county or city urgently needs a capital improvement, additional legislation is not required; for Amendment 62 is self-executing and provides in Section 6 that in the absence of laws implementing the Amendment, elections may be called and conducted under the laws governing elections generally. As for revenue bonds, nothing stands in the path of their availability except the need for an election. The framers of the Constitution and of the pertinent amendments did not share the apparent reluctance of the amici curiae to resort to popular elections.

The petition for rehearing is denied.

Holt, C.J., concurs.

Dudley and Hays, JJ., concurring.

Purtle, J., not participating.

Jack Holt, Jr., Justice,

concurring. I join with the court’s supplemental opinion, issued upon the denial of the Petition for Rehearing. However, I consider it appropriate to note that certain petitioners in amicus curiae briefs ask us to rule on several collateral matters, primarily concerning Arkansas revenue bonds issued in accordance with amendment 20 to the Constitution of the State of Arkansas, and the constitutional aspects of bond refunding by a municipality without prior voter approval.

These issues are properly not resolved by the majority opinion, however, I think an explanation for the failure to address them is warranted. We do not discuss these subjects simply because they do not fall within the framework of the case before us, which questions the authority of a city or municipality within this state to issue municipal bonds without an election in light of the constitutional restraints of amendment 13 to the Arkansas Constitution.

We are now being asked to decide questions on issues which were not before the trial court. Since we do not issue advisory opinions, we must decline to do so here. McDonald v. Bowen, 250 Ark. 1049, 468 S.W.2d 765 (1971); Hogan v. Bright, 214 Ark. 691, 218 S.W.2d 80 (1949). Because the request for our opinion on the legality of state bonds issued under amendment 20 and bond refunding, is merely seeking advice, our opinion would not have the force, effect, and binding nature of a judicial decision which resolves the actual specific controversy between the parties.

We are not unmindful of the desire, or perhaps need, for an answer to these issues, however, to address them in a case such as this would be without precedent and against our long-standing rule that the Supreme Court does not issue advisory opinions. McCuen, et al. v. Harris, Tax Collector, 271 Ark. 863, 611 S.W.2d 503 (1981).

We need only say further that we have fully answered and clarified the issues which were properly before us.


source: Caselaw Access Project

author: George Rose Smith, Justice. Steele Hays, Justice,

license: Public Domain

text:
    CITY OF FORT SMITH, et al. v. Joseph F. O’LOUGHLIN
    85-238
    705 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986
    [Rehearing denied April 15, 1986.]

      Friday, Eldredge & Clark, Michael G. Smith, for appellant.

      Harrison & Hewett, by: Mark Hewett, for appellee.

         Purtle, J., not participating.

   George Rose Smith, Justice.

This is a taxpayer’s suit brought by the appellee for a declaratory judgment to determine the validity of tax-exempt bonds to be issued by the Fort Smith Tourism Facilities Board for the construction of a nine-story 260-room hotel in downtown Fort Smith. Although the building is to be 100% financed by the bond issue, it will be a privately owned hotel, operated for profit. Apparently construction is under way, with the opening of the hotel scheduled for the spring of 1986. John Q. Hammonds, the chief developer of the project, testified that the hotel will be completed with or without public financing. After hearing a great deal of testimony the chancellor held that the bonds are invalid, as not being issued for a public purpose. The appeal comes to this court under Rule 29(l)(c).

We need not discuss the issue of public purpose, for our long standing rule is to affirm the trial court’s decision if it reached the right result, although a different reason for the decision may have been given. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984). Moreover, when a party to a suit is representing the public, as in this taxpayer’s suit, it is our practice to consider all essential questions on their merits. Morris v. Torch Club, 278 Ark. 283, 644 S.W.2d 945 (1983).

In another opinion handed down today we are holding that a municipal bond issue such as this one is not valid unless it has been approved at an election. City of Hot Springs v. Creviston, 288 Ark. 286, 705 S.W.2d 415 (1986). There having been no election in the present case, the trial court’s decision was right and must be upheld for the reasons given in the Hot Springs case.

Affirmed.

Purtle, J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The chancellor correctly determined that these bonds were to be repaid entirely from funds derived from the convention center/hotel, however, he also held that no public purpose would be served by the facility and the majority has impliedly endorsed that position, which prompts these comments.

In order to affirm the chancellor’s ruling with respect to the public purpose issue, our cases require a finding that the legislative branch acted arbitrarily and capriciously. Purvis v. Hubbell, Mayor, 273 Ark. 330, 620 S.W.2d 282 (1981); Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962); Kerr v. East Central Arkansas Housing Authority, 208 Ark. 625, 187 S.W.2d 189 (1945). In Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984) we said:

[W]hether legislation fulfills a public purpose is a legislative decision and a court will reverse that decision only if the legislature acted arbitrarily, unreasonably or capriciously. The court should not substitute its own judgment for that of the legislature.

Justice Dudley, concurring in Purvis v. City of Little Rock, 282 Ark. 102, 667 S.W.2d 936 (1984), said it aptly:

The determination of whether a municipal undertaking fulfills a public purpose initially is an executive decision to be made at a local level. A court is hesitant to disagree with that local decision. Accordingly, we will reverse that decision only if the local government acted arbitrarily, unreasonably or capriciously.

Here, the City of Ft. Smith spent three years and $70,000 considering methods of revitalizing its downtown. It had the benefit of studies from several competent sources. Seen as the major need was the lack of a headquarters hotel with overall convention facilities to be operated in conjunction with the Municipal Auditorium. There was a great deal of testimony from knowledgeable witnesses attesting to the usefulness of such a facility, which did not exist in Ft. Smith, and stressing the importance of a convention center complex in competing for tourist business. In sum: the complex is expected to create 225 construction jobs with an estimated $5,000,000 annual payroll, 250 permanent jobs with an estimated $3,000,000 annual payroll. The hotel will have reception facilities for 1,600 people, banquet facilities for 1,200, a ballroom, eight meeting rooms, a first-line dining room seating 110, atrium dining for 150, a lounge and club. The complex, expected to generate $287,000 annually in new sales tax and $432,000 in turnback funds, is described as “labor intense,” employing a high percentage of young and minority employees. The Municipal Auditorium, which has lost money consistently since 1970 ($97,000 in 1984) and the hotel, separated by “a few feet”, are expected to compliment each other.

Unfortunately, the trial court made no real attempt to determine whether the benefits to be derived by Ft. Smith, which are considerable, outweigh those to be gained by the developers, assuming the venture succeeds. Granted, the operators would benefit over ten years by some three million dollars in interest expense if these bonds were upheld, but the City of Ft. Smith can expect to derive many times that amount in direct benefits alone, without attempting to evaluate the indirect benefits.

The Ft. Smith complex is handled precisely as were the facilities in both Purvis cases, the city owns the facility and merely leases it to the developer on an extended basis. The lease period here is for an initial term of twenty-nine years, with options for seven additional terms of ten years each. In Purvis I the lease was for fifty-three years with options for a total of one hundred and three years. The legislature has given authority to cities to lease publicly owned property to private operators in a variety of instances (see Act 175 of 1961), and Act 142 of 1975 expressly includes not only the power to lease tourist facilities but the power to sell those facilities as well. Thus, even if it could be correctly said that this facility was privately owned and privately operated that would not, ipso facto, settle the issue of public purpose. Wayland v. Snapp, 232 Ark. 57, 334 S.W.2d 633 (1960); Lambert v. Wharf Improvement Dist. No. 1 of Helena, 174 Ark. 478, 295 S.W. 730 (1927).

It hardly need be mentioned that tourism is of first importance to Arkansas. It is crucial to our economy, producing 1.7 billion dollars in 1984, a thirty percent increase over six years ago. The legislature has declared categorically that tourism is an industry and this court has placed its imprimatur on that policy. Purvis v. City of Little Rock, supra, p. 109. Yet here we find a convention complex in the strict sense, capable of housing 600 conventioneers and providing the expected accommodations, the only one of its kind in Ft. Smith, being rejected, not by the legislative branch, but by the judicial branch. I submit we are substituting our judgment for theirs, which we have repeatedly said is off-limits for the judicial branch.

My views on the election issue are stated in a concurring opinion in Hot Springs v. Creviston, also decided today.


author: Darrell Hickman, Justice.

text:
    PETERSON INDUSTRIES, INC. v. Barbara Kay FARMER
    85-246
    705 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986
    [Rehearing denied April 14, 1986.]

      Ernest G. Lawrence, by: Blaine A. Jackson, for appellant.

      Boyce R. Davis, for appellee.

       Purtle, J., not participating.

   Darrell Hickman, Justice.

This appeal asks us to reaffirm our rule that when a contract of employment does not bind the employee to serve for a specified time, the contract may be terminated at will by either party. See Gaulden v. Emerson Electric Co., 284 Ark. 149, 680 S.W.2d 92 (1984). We are unable to reach the merits of the appeal because the appellant has failed to abstract all pertinent parts of the record; therefore, we affirm. Ark. R. Sup. Ct. Rule 9 (d).

Barbara Kaye Farmer, the appellee, was terminated by the appellant, Peterson Industries. The reason given by the company was that Farmer had been absent for over two days without notification in violation of the policy set forth in the company handbook. At the time of her absence, she was hospitalized because of recurring pain from a previously sustained back injury for which she had received workers’ compensation benefits. Farmer sued the appellant alleging wrongful discharge. At trial the following instruction was given:

If you find that Barbara Kaye Farmer was fired by Peterson’s, Inc., in direct violation of the company’s own policies or for the reason that she had filed or was pursuing a Workers’ Compensation claim, then you should find for the plaintiff, Barbara Kaye Farmer.

The trial court gave the instruction because of our previous indications that we would consider modifying our position on the employment-at-will doctrine. See Gaulden v. Emerson Electric Co., supra; Jackson v. Kinark Corp., 282 Ark. 548, 669 S.W.2d 898 (1984). The jury returned a verdict for Farmer for $10,000. The appellant argues (1) that the instruction was error; (2) that there was insufficient evidence to find that Farmer was fired in retaliation for pursuing a workers’ compensation claim; and (3) that the damages were computed erroneously.

It is the duty of the appellant to furnish us with an abridgement of the record sufficient to understand the matters presented. Dyke Industries, Inc. v. Johnson Const. Co., 261 Ark. 790, 551 S.W.2d 217 (1977); Collins v. Duncan, 257 Ark. 722, 520 S.W.2d 192 (1975). Our rule 9 (d) requires affirmance because the appellant failed to abstract the employee handbook or its objection to the instruction complained of, and also failed to abstract much of the testimony required to review the second and third points of its argument.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Steven Mark COX v. STATE of Arkansas
    CR 85-200
    705 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The sole issue involved in this case is whether appellant should receive credit for jail time spent in Texas from June 28, 1984 until March 31, 1985. The lower court refused to allow such credit. We affirm.

On November 28, 1983, appellant, Steven Mark Cox, pleaded guilty to charges of possession of cocaine and marijuana with intent to deliver. He was sentenced to a term of seven (7) years with two (2) years suspended. He was given credit for five (5) days jail time and was ordered to surrender on January 3, 1984 to begin serving his sentence. He failed to appear on that date, and a bench warrant was issued for his arrest.

On June 28, 1984, appellant was arrested in Texas on the Arkansas warrant. The State of Texas also charged appellant with crimes committed while he was there. In addition, Texas authorities refused to extradite appellant to Arkansas, choosing instead to try him on the Texas charges.

Appellant pleaded guilty to the Texas charges and was sentenced to a term of ten (10) years. The State of Arkansas placed a detainer against appellant in the Texas Department of Corrections. On or about February 24, 1985, appellant waived extradition. He was transported back to the State of Arkansas on March 31, 1985.

Appellant contends that he should receive credit for the jail time spent in Texas from his arrest on June 28,1984 until he was returned to Arkansas on March 31, 1985. In support of that contention, he cites Ark. Stat. Ann. § 41-904 (Repl. 1977). It provides:

Credit for time spent in custody. — If a defendant is held in custody for conduct that results in a sentence to imprisonment, the court shall credit the time spent in custody against the sentence.

In Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980), we explained that “ [o] ur statute requires that a defendant held in custody for conduct that results in a sentence to imprisonment be given credit for the time spent in custody against his sentence.” We went on to explain in Boone that credit for jail time is appropriate when the pretrial incarceration is due to inability to make bail, but that it is not appropriate when the incarceration is due wholly to unrelated charges that are based on conduct other than that for which the defendant is sentenced. Further, in Hughes v. State, 260 Ark. 399-A, 540 S.W.2d 592 (1976), we held that no credit should be allowed for time spent in jail as a fugitive from justice.

Appellant was incarcerated in Texas for two reasons: (1) he was a fugitive from justice in Arkansas, and (2) he had committed other crimes in Texas. Thus, the reasons for incarceration are wholly unrelated to the conduct that resulted in appellant’s five-year sentence for possession of cocaine and marijuana with intent to deliver. Consequently, appellant should not receive any credit for the period of time that he was incarcerated in Texas.

Affirmed.

Purtle, J., not participating.


author: David Newbern, Justice.

text:
    Dale Gene BRYANT v. A. L. LOCKHART, Director, Arkansas Department of Correction
    CR 85-170
    705 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986
    Appellant, pro se.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

This appeal comes to us on a pro se brief by the appellant. No abstract of the record was presented by the appellant, or by the Arkansas Attorney General on behalf of the appellee.

From the appellant’s statement of the facts, the appellee’s brief, and mostly from the record, we are able to glean that the appellant asked the Jefferson County Circuit Court to order A. L. Lockhart, Director of the Arkansas Department of Correction, to change prison records to show the appellant is serving a five-year, rather than ten-year, sentence. The appellant’s complaint seems to be that the Conway County Circuit Court entered judgments and commitment orders on some counts of possession of marijuana with intent to deliver after the case had been appealed to and affirmed by the Arkansas Court of Appeals. Apparently a jury verdict recommended sentences ranging from five to ten years on a number of counts but, through oversight, the judge only entered one commitment order for five years. The court of appeals, assuming incorrectly that the trial court had committed the appellant to a concurrent five-year sentence on each count, affirmed the judgment. Thereafter, the judge entered the other commitment orders, on the other counts of which the appellant had been found guilty by the jury. One of the orders was for a ten-year sentence. All of them were to run concurrently. The appellee argues the trial court was only correcting a clerical error. The appellant argues the trial judge was performing a judicial act in a case of which he lost jurisdiction when it went on appeal.

We hold pro se litigants to the abstracting requirement of Rule 9 of the Rules of the Arkansas Supreme Court and Court of Appeals. Walker v. State, 283 Ark. 339, 676 S.W.2d 460 (1984). While we are more lenient toprose appellants, Weston v. State, 265 Ark. 58, 576 S.W.2d 705 (1979), we will not entertain an appeal which completely ignores the requirement. This court consists of seven justices. There is only one record. We cannot continue to operate efficiently if each justice must look at the record to ascertain the facts. G. Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977). We must, therefore, adhere to the abstracting requirement.

Affirmed.

Purtle, J., not participating.


text:
    SIMMONS FIRST NATIONAL BANK, (Through its Vice President and Senior Trust Officer, Robert L. Hart, Jr.) Administrator of the Estate of Georgia Huchingson v. W.W. ABBOTT, M.D., et al.
    85-99
    705 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986

      Whetstone & Whetstone, for appellant.

      Friday, Eldredge & Clark, by: Laura A. Hensley, for appellee Abbott.

      Wright, Lindsey & Jennings, for appellee Aireo, Inc.

      Stephan A. Matthews, amicus curiae for Arkansas Association of Defense Counsel.

      Jay Thomas Youngdahl, amicus curiae for Arkansas Trial Lawyers Association.
   Comer Boyett, Jr., Special Chief Justice.

This case involves statutory construction of Arkansas’ Wrongful Death Act (Act 255 of Acts of Arkansas of 1957); 27 Ark. Stat. 906 et seq:, and jurisdiction rests in this Court under Rule 29(1)(c) and (1)(o) of the Rules of the Supreme Court.

On August 25, 1980 suit was filed for injuries to Georgia Huchingson caused by medical negligence and wanton misconduct occurrinjg on May 14, 1980. On March 23, 1981, a guardianship was substituted as a party plaintiff for Mrs. Huchingson, and the matter proceeded to trial, resulting in a jury verdict in favor of the guardianship on September 16, 1981 for both compensatory and punitive damages which was affirmed on appeal. Mrs. Huchingson died January 30, 1982, and an estate was opened March 18,1982. On the 5th day of May, 1984, a suit for wrongful death containing identical allegations of fault against the same defendants was filed, seeking only damages for mental anguish of the next of kin. Summary judgment was given the defendants by the trial court on the basis that the second suit was barred by res judicata.

We are called upon to determine whether a suit by an injured party, reduced to final judgment, extinguishes any wrongful death claim against identical defendants based on identical allegations of fault. We hold that it does.

At common law, the rights of a tortiously injured person were extinguished by his death and American legislators have rectified this injustice by enacting, in various forms, legislation permitting suits to be brought subsequent to the death of an injured person.

We must be aware and do assume that the legislature realized that any statute which was in derogation of or at variance with the common law must be strictly construed, Grimmett v. State, 251 Ark. 270A, 476 S.W.2d 217 (1972), Wright v. Wright, 248 Ark. 105, 449 S.W.2d 952 (1970). Likewise, it will always be presumed by the Court that the legislature intended to use words in their usual and natural meaning, Heard v. Payne, 281 Ark. 485, 665 S.W.2d 865 (1984), ASHC v. Mabry, 229 Ark. 261, 315 S.W.2d 900 (1958).

The survival statutes and wrongful death statutes are based primarily on Lord Campbell’s Act, 9 and 10, Vict, c, 93, An act for compensating the families of persons killed by accidents (August 26, 1846):

“Whereas, no action at law is now maintainable against a person who by his wrongful act, neglect or default may have caused the death of another person. ... Be it therefore enacted. . . . That whensoever the death of a person shall be caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof then and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony.
II. And be it enacted, That every such action shall be for the benefit of the wife, husband, parent and child of the person whose death shall have been so caused and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportionate to the injury resulting from such death to the parties respectively for whom and for whose benefits the action shall be brought. . .
III. Provided, always, and be it enacted, That not more than one action shall lie for and in respect of the same subject matter of the complaint . . .” (Italics added)

A comparison of Lord Campbell’s Act with that of the Arkansas Act reveals striking similarity:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company, or corporation, which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death may have been caused under such circumstances as amount in law to a felony. The cause of action herein created shall survive the death of the person wrongfully causing the death of another and may be brought, maintained or revived against the personal representatives of the persons wrongfully causing the death of another.” (Italics Added)

The Act then states that an action shall be brought in the name of a personal representative of the deceased person or by the heirs at law, and in discussing damages mentions recovery for pecuniary injuries and loss of consortium. Additionally, mental anguish is listed as an element of damage to the spouse and next of kin.

Lord Campbell’s act specifically stated that not more than one action would lie for and in respect of the same subject matter of the complaint. This gives credence to the theory that if there has been an action on the subject matter of the complaint, i.e. in this case on the medical negligence and wanton conduct, then there cannot be a second suit regarding the same subject matter.

The vast majority of other jurisdictions having legislation containing the identical language of the Arkansas Act including the phrase “if death had not ensued”, have held that the settlement by the injured party or a suit reduced to judgment during the lifetime of the injured party barred a subsequent suit by the next of kin or other beneficiaries because of res judicata. See ALABAMA: Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586 (1951); ARIZONA: Walrod v. Southern Pacific Co., 447 F2d 930 (9th Cir. 1971); CONNECTICUT: Kling v. Torello, 87 Conn. 301, 87 A. 987 (1913); DELAWARE: Perry v. Philadelphia, B. & W. R. Co., 24 Del. 399, 77 A. 725 (1910); FLORIDA: Variety Children’s Hospital v. Perkins, 445 So. 2d 1010 (Fla. 1983); ILLINOIS: Fountas v. Breed, 118 Ill.App.3d 669, 74 Ill. Dec. 170, 455 N.E.2d 200 (1983); INDIANA: Superintendents of Poor v. Superintendents of Poor, 141 Mich. 667, 104 N.W. 978 (1905); KENTUCKY: Perry’s Adm’r. v. Louisville & N. R. Co., 199 Ky. 396, 251 S.W. 202, 39 ALR 560 (1923); MISSISSIPPI: Harris v. Illinois C. R. Co., 111 Miss. 623, 71 So. 878 (1916); MISSOURI: Schmelzer v. Central Furniture Co., 252 Mo. 12, 158 S.W. 353 (1913); NEW YORK: Kelliher v. New York C. & H. RR. Co., 212 N. Y. 207, 105 N.E. 824 (1914); NORTH CAROLINA: Edwards v. Interstate Chemical Corp., 170 N.C. 551, 87 S. E. 635 (1916); PENNSYLVANIA: McCafferty v. Pennsylvania R. Co., 193 Pa. 339, 44 A. 435 (1899); SOUTH CAROLINA: Price v. Richmond & D. R. Co., 33 S. C. 556, 12 S.E. 413 (1890); TEXAS: St. Louis S. R. Co. v. Hengst, 36 Tex. Civ. App. 217, 81 S.W. 832 (1904); VERMONT: Legg v. Britton, 64 Vt. 652, 24 A. 1016 (1892); VIRGINIA: Virginia Electric & Power Co. v. Decatur, 173 Va. 153, 3 S.E.2d 172 (1939); WASHINGTON: Frescoln v. Puget Sound Traction, Light & Power Co., 225 F. 44 (D. C. Wash. 1915); WYOMING: Parsons v. Roussalis, 488 P.2d 1050 (Wyo. 1971).

An early Federal case, Hicks v. Missouri Pacific Railroad Company, 181 F.Supp. 648 (W.D.Ark. 1960), App. Dis. 285 F. 2d 427 (8th Cir. 1960), held that the wrongful death action was derivative in nature from the original tort, and that since the statute of limitations had run on any tort action for the injured party prior to his death, that defense could be imposed in the wrongful death action; the complaint was dismissed. This interpretation of Arkansas law by the Federal court was reinforced by Matthews v. Travelers Indemnity Insurance Company, 245 Ark. 247, 432 S.W.2d 485 (1968). In that case, a patient allegedly received negligent medical care in January of 1965, which resulted in her death in November of 1965. A wrongful death and survival claim was filed in June of 1967 and we dismissed all claims for physical injury and mental anguish suffered by the decedent before death because the suit was not filed within two years of the alleged wrongful act, the medical malpractice statute of limitations being two years. However, we did permit the wrongful death claim since the statute of limitations for the malpractice action had not run at the time of the decedent’s death, thus bringing into play the three year statute of limitations for a wrongful death suit. Without question, a defense of limitations which would have been available against the injured person has been allowed in a suit brought on his behalf by his estate.

In Matthews v. Travelers Indemnity Insurance Company, supra, our opinion contained persuasive dicta which touches upon the problem at issue:

“We are not overlooking the argument that the Administrator’s action for wrongful death is to some extent derivative, in that it may be extinguished either by a suit for personal injuries prosecuted by the injured person to a final judgment during his lifetime. . . or by the running of applicable statute of limitations during the injured person’s lifetime . .

We hold that the reduction to final judgment of Mrs. Huchingson’s claim for bodily injuries extinguishes any wrongful death claim by her next of kin that her bodily injuries subsequently caused her death, and the action of the trial court is affirmed.

Affirmed.

Holt, C.J., and Purtle, J., not participating.

        Airco, Inc. v. Simmons First National Bank, Guardian, 276 Ark. 486, 638 S.W.2.d 600 (1982).

       The second suit was filed within the statute of limitations since the incompetent died prior to the expiration of two years from the date of medical injury and thereafter the three year period of statute of limitations came into play. See Matthews v. Travelers Indemnity Company, 245 Ark. 247, 432 S.W.2d 485 (1968).


author: Per Curiam.

text:
    Willie Earl CAMPBELL v. STATE of Arkansas
    CR 85-172
    705 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986

      Cross, Kearney & McKissic, by: Gene E. McKissic, for appellant.

      Steve Clark, Att’y Gen., by: Joel O. Huggins, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Willie Earl Campbell was found guilty by a jury of burglary, possession of a prohibited weapon, terroristic threatening and the offense of felon in possession of a firearm. He was sentenced as a habitual offender with four prior felony convictions to consecutive sentences totaling 62 years imprisonment.

Appellant’s trial attorney Gene McKissic has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating there is no merit to an appeal of appellant’s convictions and asking to be relieved as counsel. When an attorney concludes that an appeal is meritless, he is required to comply with our Rule 11 (h) which provides in pertinent part:

A request to withdraw on grounds that the appeal is wholly without merit shall be accompanied by a brief referring to anything in the record that might arguably support the appeal, together with a list of all objections made by the appellant and overruled by the court and of all motions and requests made by the appellant and denied by the court, accompanied by a statement as to the reason counsel considers that the points thus raised would not arguably support the appeal.

Counsel has not complied with the rule. Appellant has submitted a brief, but it does not contain a list of all objections, motions and requests made by appellant and denied by the court or a statement as to the reason the points would not arguably support an appeal. The argument portion of the brief is in fact five sentences long and ignores the issues raised in the trial court and the question of the sufficiency of the evidence to support the four convictions.

It is also disturbing that the Attorney General concurs that the appellant has abstracted all objections, motions and requests denied by the court and concludes that the appellant has discussed the points “sufficiently” to apprise this Court of the lack of merit when in truth the appellant has not done so.

As appellant has failed to comply with Rule 11 (h), he is instructed to submit a brief in compliance with the rule within thirty days. The Attorney General shall then file a brief in response if necessary.

Motion to be relieved as counsel denied.

Purtle, J., not participating.


text:
    Willard ROBBINS v. STATE of Arkansas
    CR 85-188
    705 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered March 3, 1986

      Neil V. Pennick, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant was charged in 1983 with burglary and being an habitual offender. A week later he was charged with a second burglary. He refused an offer of a plea bargain whereby he would plead guilty and be sentenced to ten years imprisonment. He was subsequently tried before a jury on the first burglary charge and convicted. An enhanced sentence of thirty years imprisonment and a $15,000 fine were imposed. No appeal was taken. He pleaded guilty to the second burglary charge and a sentence of fifteen years was imposed to be served concurrent to the thirty-year sentence.

In 1985 appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. Rule 37, seeking release from prison. After a hearing on appellant’s petition, the trial court denied all relief. Appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within 30 days. See Rules of the Supreme Court and Court of Appeals. Rule 11 (h), Ark. Stat. Ann. Vol. 3A (Supp. 1985). He did not file a brief. The State concurs that the appeal has no merit.

In his Rule 37 petition, which concerned his jury trial only, appellant sought relief on four grounds: (1) He was not given a bifurcated trial as required by the habitual offender act; (2) evidence of his past criminal conviction was presented to the jury over counsel’s objection prior to the jury’s deliberation of guilt; (3) counsel failed to move for a directed verdict; and (4) counsel failed to file a notice of appeal despite appellant’s desire to appeal.

Because the first three contentions were clearly contradicted by the trial record, appellant relied at the hearing on the contentions that his attorney was ineffective because he failed to advise him of the range of sentences which could be imposed upon conviction and failed to pursue an appeal.

On appeal, we affirm the trial court’s denial of postconviction relief unless it is clearly against the preponderance of the evidence. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). The trial court’s finding of competency of counsel was not clearly against the preponderance of the evidence. Ineffective assistance of counsel is evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the court held that the criterion for judging a claim of effective assistance of counsel is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the appellant was prejudiced and the result of the proceeding was thereby rendered unreliable. From the facts in the record, we cannot say that appellant’s counsel was ineffective.

Appellant contended he was led to believe that he could still accept the state’s offer of a plea bargain if the jury returned a guilty verdict at the end of the first stage of his bifurcated trial. He also alleged that he believed he would receive two separate trials with separate juries, one to determine guilt and one to determine punishment. He further contended that counsel told him that he would not be sentenced to more than ten years if he went to trial. Appellant provided no support for the allegations to negate the evidence in the record which demonstrates that counsel was competent.

Appellant signed an affidavit when he refused the plea bargain stating that he knew of the offered plea, that he understood the advice of counsel concerning the evidence against him, that he had elected to have a jury trial and that he was aware of. the range of sentences for burglary if he was convicted as a habitual offender. The trial court also conducted an in-chambers hearing concerning the possible punishment, which had already been explained to appellant at arraignment. Appellant’s conclusory assertion that he did not understand the possible consequences of a jury trial did not persuade the trial court that he suffered any undue prejudice. This Court will not disturb a finding by the trial court based solely on its assessment of a witness’s credibility. See Girdner v. State, 285 Ark. 70, 684 S.W.2d 808 (1985).

The record supports the finding that appellant was fully advised of his right to appeal and that he did not make his desire to appeal known to counsel until after the time for filing a notice for appeal had elapsed. The trial judge informed the appellant when sentence was pronounced of his right to file a notice of appeal within thirty days. At the Rule 37 hearing, appellant conceded that the first time he indicated an interest in an appeal was in a letter sent to counsel in 1984, more than nine months after he was convicted.

We have consistently held that the failure of counsel to perfect an appeal when the defendant desires an appeal amounts to a denial of defendant’s right to effective assistance of counsel. Henderson v. State, 278 Ark. 107, 643 S.W.2d 107 (1982). Here, appellant did not inform counsel of his desire to appeal until the time for filing a notice of appeal had passed. As a result, appellant waived his right to appeal.

Moreover, appellant could have filed a motion for belated appeal in this Court at anytime within eighteen months of his commitment. Ark. R. Crim. P. Rule 36.9. Instead, he waited to seek a belated appeal until after the time for filing such a motion had expired; and then he addressed the request to the trial court under Rule 37. Rule 37, however, was not intended as a substitute for a timely motion for belated appeal addressed to this Court. If it were so construed, an appellant could simply by-pass the provisions of Criminal Procedure Rule 36.9 which govern belated appeals in favor of filing a petition pursuant to Criminal Procedure Rule 37. This would have the effect of doubling the time for requesting a belated appeal since Rule 37 petitions based on an allegation of ineffective assistance of counsel may be filed at anytime within thirty-six months, while motions for belated appeal under Rule 36.9 must be filed within eighteen months.

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.

Purtle, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Joseph BUMGARNER v. STATE of Arkansas
    CR 85-174
    705 S.W.2d 10
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Chet Dunlap, for appellant.

      Steve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant filed an Ark. R. Crim. P. Rule 37 motion to vacate his guilty plea and ten-year sentence on a charge of theft by receiving, alleging various plea bargain agreements with the prosecuting attorney were breached; a psychiatric report favorable to a possible defense of insanity was suppressed by the prosecution; a search warrant which resulted in his arrest was defective; and the state had no evidence linking him to the alleged crimes. The petition was denied. Appellant’s single argument for reversal is that the trial court erred in not making specific findings of fact and conclusions of law, as required by Rule 37.3(a), regarding his allegation that he was denied access to a psychiatric report before entering his plea. We agree and reverse and remand for the trial court to correct this error. Jurisdiction is in this court pursuant to Sup. Ct. R. 29(l)(e).

Before the evidentiary hearing on the motion, the circuit court ruled that the search warrant allegation was not a proper Rule 37 issue. The court also stated that it did not consider the psychiatric report, which was based on a preliminary examination before appellant was sent to the state hospital for a full evaluation, to be particularly significant.

Although it was the declared intention of the trial court that the plea bargain agreements would be the only issue relevant to the Rule 37 proceedings, the court permitted the psychiatric report to be introduced into evidence and allowed testimony in relation to this report. Once this issue became of record, it was necessary for the court to make written findings of fact and conclusions of law.

Rule 37.3(a) provides that “[i]f the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.” When an evidentiary hearing is held on a Rule 37 petition, this rule is mandatory and requires written findings. Williams v. State, 272 Ark. 98, 612 S.W.2d 115 (1981); State v. Maness, 264 Ark. 190, 569 S.W.2d 665 (1978).

We do not remove from the trial court its discretion to determine which of the many issues often raised in a post-conviction petition are conclusively without merit and thus not relevant to the evidentiary hearing on the petition. In fact, if the record conclusively shows that a petitioner is not entitled to a hearing on any issue raised in the motion, this court will not reverse for a failure to make written findings of fact and conclusions of law explaining why the motion was denied. Simmons v. State, 265 Ark. 48, 578 S.W.2d 12 (1979). However, once a hearing is held and an issue is actually considered by the court, its resolution must be supported by written findings so that there can be a meaningful review of the proceedings. Accordingly, the trial court committed error in not including in its findings of fact and conclusions of law, a determination as to the psychiatric report.

Reversed and remanded for findings consistent with this opinion.

Purtle, J., not participating.


author: George Rose Smith, Justice.

text:
    Ann Whitten COX v. T.E. WHITTEN
    85-263
    704 S.W.2d 628
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Hale, Fogleman & Rogers, for appellant.

      Rieves & May ton, by: Ted Mackell, Jr., for appellee.
   George Rose Smith, Justice.

In this case the only question, arising from undisputed facts, is whether a provision in Ida Mae Tatum’s will leaving property to the “children” of her four brothers was intended to apply to the appellee, who is the adopted child of one of the brothers. The appeal comes to this court under Rule 29(l)(p). We are unable to agree with the chancellor’s conclusion that the language of the will extends to this adopted child.

Mrs. Tatum, a resident of Mississippi, made her will in 1951. She died there in 1960. Her will left 180 acres of land in Crittenden County, Arkansas, to her four brothers for life. The will continued as follows:

With remainder over in fee simple to their children, provided that in event any one or more of my said brothers shall die childless, then the interest of any brother who shall die childless shall go to the children of those who do not die childless, share and share alike.

Two of the brothers died childless. A third died in 1974 survived by one child, the appellant Ann Whitten Cox. The last brother died in 198 3 survived by the appellee, T.K. Whitten, whom he and his wife had adopted in 1976 in Kentucky, where they lived. The appellee was 48 years old when he was adopted, but there is no suggestion that the adoption was for the purpose of enabling him to share in Mrs. Tatum’s estate.

After the death of the fourth brother, the appellee brought this suit in 1984 to quiet his title to an undivided half interest in the 180 acres. By counterclaim the appellant asked that title to the entire property be quieted in her. This appeal is from a summary judgment in favor of the appellee, no testimony having been necessary.

Both parties recognize in their briefs that the issue is not that of applying the Arkansas statutes that govern the inheritance rights of an adopted child. Instead, the sole issue is whether Mrs.Tatum intended for her reference to “children” to include a person who was adopted as an adult sixteen years after Mrs. Tatum died and twenty-five years after she made her will.

It is certainly true, as the appellee argues, that “children” is a broader term than the word “heirs” and may include adopted children. Kelly v. Kelly, 176 Ark. 548, 3 S.W.2d 305 (1928), quoted in Deener v. Watkins, 191 Ark. 776, 87 S.W.2d 994 (1935). Neither of those cases concerned an adopted child; so the court’s statement was merely a generalization. If, for example, a testatrix had three natural children and one adopted child when she made her will, it could be argued with much force that if she left her property to “my children,” her language would include the adopted child.

That is not the situation before us. The adoption was not by the testatrix but by her brother. The question here is whether Mrs. Tatum’s devise of the remainder interest to her brothers’ “children” was meant to include the appellee, who was not adopted until many years after Mrs. Tatum’s death. In determining a question of intention we try to place ourselves as nearly as possible in the position of the testatrix at the time she signed the will. Weeks v. Weeks, 211 Ark. 132, 199 S.W.2d 955 (1947). When we approach the issue in that way, we are decidedly of the opinion that Mrs. Tatum’s reference to her brothers’ children was not selected with the idea of including a person who was not adopted until long after her death. That is definitely the majority rule. Annotations: 70 A.L.R. 626 (1931); 144 A.L.R. 676 (1943). The North Carolina court cited decisions from twelve states to support its holding that a devise to the children of the testator’s nephews and nieces did not include children who might be adopted after the testator’s death. “To hold otherwise would make it possible for property of a testator to be diverted to strangers of his blood without his knowledge or consent.” Bradford v. Johnson, 237 N.C. 572, 75 S.E.2d 632 (1953). We are convinced that the majority rule should be applied to the facts presented by the case before us.

Reversed and remanded for the entry of a decree quieting title in the appellant.

Purtle, J., not participating.


text:
    Donald HUFFMAN v. STATE of Arkansas
    CR 85-190
    704 S.W.2d 627
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Edwin J. Alford, for appellant.

      Sieve Clark, Att’y Gen., by: Jerome T. Kearney, Asst. Att’y Gen., for appellee.
   George Rose Smith, Justice.

On November 15,1984, the appellant was charged with having committed rape on or about January 15, 1984, by engaging in sexual intercourse or deviate sexual activity with a girl under the age of eleven. The jury found him guilty and imposed a 35-year sentence. There is no merit in his three arguments for reversal.

It is first contended that the appellant’s signed confession was involuntary and should not have been received in evidence. At the suppression hearing the appellant testified that the police officers compelled him to sign the statement, which he said was not true. The State presented convincing proof to the contrary. The officers testified that Huffman had not wanted to make a statement when he was arrested, but after three or four days he said he wanted to see the sheriff and make a statement. According to the officers, Huffman made the statement voluntarily. At the hearing Huffman admitted the truth of parts of the statement, relating to his childhood and his first job. His description of the criminal incident was the same as that given by the child in her testimony at the trial. We have reviewed the testimony taken at the suppression hearing and find that the statement was voluntarily made.

A second argument is that the court should have granted a continuance when, just before the trial began, the State was allowed to amend the information to allege that the crime occurred between November 1,1983, and January 15,1984. No prejudice resulted from the court’s action. In a case of this kind the particular time is not an ingredient of the offense; so the amendment was permissible. Ark. Stat. Ann. § 43-1015 (Repl. 1977); Scoggins v. State, 258 Ark. 749, 528 S.W.2d 641 (1975). The prosecutrix testified that there was intercourse both before and after Christmas (1983). In view of the statute making a variance in time immaterial, we fail to see how the defense was affected by the amendment.

A third argument is that the State’s proof was insufficient, but the appellant concedes that if the confession was admissible, as we hold it to have been, this point is not well taken.

Affirmed.

Purtle, J., not participating.


text:
    Robert D. FUTCH v. STATE of Arkansas
    CR 85-155
    705 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Henry & Mooney, by: Wayne Mooney, for appellant.

      Steve Clark, Att’y Gen., by: Charles R. Lucus, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Robert Futch shot and killed his former wife, Bonnie Futch, at her mobile home in Poinsett County, Arkansas. He was convicted of first degree murder and sentenced to life imprisonment. Futch argues that statements he made to police officers before he was warned of his rights should have been excluded and that the state should not have been allowed to impeach his testimony with a prior statement. We find no prejudicial error and affirm.

The authorities first learned of the incident by a telephone call from Futch’s sister in Arizona. They were told that there had been a shooting at Mrs. Futch’s residence and the investigating officers knew nothing more. They proceeded to the residence and knocked on the door. Futch answered and said, “Can I help you?” Officer Fleming asked if everything was all right and Futch said it was. The officers asked if his wife was home and Futch said, “Yes, sir, she is, she is dead.” They asked, “Who shot her?” and Futch replied, “I did.”

The trial judge properly permitted introduction of these statements. The fact that Futch was not given the warning of his rights provided for in Miranda v. Arizona, 384 U.S. 436 (1966), does not preclude the use of this evidence. Futch was not in custody, nor was the investigation focused on him. Initially the officers did not even know if a killing had occurred. In Miranda the Court stated:

The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way.
* * * *
General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. . . .Insuch situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.

In three very similar cases we have held such statements are admissible. Ward v. State, 272 Ark. 99, 612 S.W.2d 118 (1981); Chenault v. State, 253 Ark. 144, 484 S. W.2d 887 (1972); Stout v. State, 244 Ark. 676, 426 S.W.2d 800 (1968). The trial court also admitted two statements Futch made while he was in the police car en route to the station. Officer Toddy testified that Futch was not questioned and that he spontaneously stated, “I did what I had to do.” Toddy testified Futch also said at the station, “he had ended his problem, that he didn’t have a problem anymore.” Futch argues broadly that all statements should have been excluded, but does not contend that he was questioned by Toddy; there is no evidence that he was. The trial court was not wrong, then, to permit these statements to be admitted. Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984).

When Futch arrived at the station and was given his Miranda warnings, he said he wanted to talk to a lawyer. Ignoring this, an officer proceeded to question him and took a statement from him. The trial judge properly excluded this statement as taken in violation of Edwards v. Arizona, 451 U.S. 477 (1981). Once a suspect in custody indicates he wants to talk to a lawyer, all questioning must cease and cannot be resumed by the state. State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1981).

Both Futch and Frances English, Futch’s cousin who was present in the home and witnessed the shooting, testified. Futch said he had been drinking heavily that day. He called his former wife and wanted to talk to her. She agreed to let him come over. Futch arrived on the afternoon of July 29,1984, between 2 and 4 p.m. Frances English was there with her daughter, son-in-law and grandchildren. Futch talked with them for a while, then English’s daughter, son-in-law and grandchildren left. According to Futch, he got a gun out of the closet in the bedroom of the trailer because he was afraid the children would find it. He returned to the kitchen, was sitting at a table, and asked Bonnie to sit down. He said she said something smart to him, and he just shot her. He said he could not remember any more. He denied any intention of going there to kill her or even contemplating shooting her. Frances English said she did not see Futch with a gun until she heard Bonnie say, “Oh, my god, Bob, don’t do this.” When she saw that Bonnie was shot, English ran outside. Futch followed and persuaded her to return. They called his sister in Arizona and Futch told her that he had shot Bonnie.

This brings us to the second issue. On cross-examination the state asked Futch if he remembered talking to Officer Jim Furnish. Futch said he did not. Then the state asked, “And you don’t remember telling him that you were sorry that you shot the little girl, but she needed it.” (Italics supplied.) Futch said no. The defense attorney objected to the questioning. After the defense rested, the state announced that it would call Officer Furnish on rebuttal to testify that Futch had said “he hated to do it to the little girl, but she needed it.” (Italics supplied.) This officer had testified at the suppression hearing that Futch had said “he hated to do it to the little girl, but he did what he had to do.” (Italics supplied.) This is one of the statements that the trial court suppressed from the case-in-chief.

After Officer Furnish testified on rebuttal that Futch had said that Bonnie Futch “needed it,” the defense attorney objected that he had not been furnished with a copy of this new version of the statement before trial and that the statement had been ruled inadmissible. In Harris v. New York, 401 U.S. 222 (1971), the United States Supreme Court ruled that the state could properly impeach the defendant’s credibility on cross-examination with earlier statements he made which conflicted with his trial testimony if the statements were trustworthy. On appeal Futch argues that Officer Furnish’s testimony does not meet the Harris requirements for two reasons. He contends that the statement testified to by Officer Furnish was not inconsistent with his trial testimony and that the testimony was not trustworthy because Officer Furnish changed his version since the suppression hearing.

If Futch did indeed say that Bonnie Futch “needed” killing, that would certainly contrast with his testimony at trial that he just shot her while he was drunk because she made a smart remark and that he had not intended to do it. Whether or not Officer Furnish’s testimony was credible was an issue for the jury. The defense cross-examined him and he admitted that he had given a different version at the suppression hearing. It was for the jury to decide which version was the truth. Futch also argues that he was prejudiced by the trial court’s failure to give a cautionary instruction which would have told the jury that the statement was to be considered only for impeachment purposes and not as substantive evidence of Futch’s guilt. The trial court agreed to give the instruction but evidently forgot. Between the time the court offered to give it and the time Officer Furnish testified there was another witness who testified. We find that it was incumbent upon the defense to remind the trial court to give the instruction. Furthermore, the jury had already heard evidence that Futch had admitted the killing. We find no prejudicial error in failing to give the limiting instruction.

The trial court found no substantial difference in the two statements. We agree the disparity is so slight that it amounts to the classic distinction without a difference. Either statement could be used, arguably, to show that Futch had the necessary intent to support a conviction for first degree murder. We think the trial court’s decision was not clearly wrong or an abuse of discretion.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice. David Newbern, Justice,

text:
    Susan DYER, Mary BRYANT and Willie BRYANT v. Dorothy ROSS-LAWHON
    85-251
    704 S.W.2d 629
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Edwin A. Keaton, for appellants.

      Howell, Price, Trice, Basham & Hope, P.A., for appellee.
   Robert H. Dudley, Justice.

The appellee, Dorothy Ross-Lawhon, filed a petition in the Probate Court of Pulaski County seeking appointment as guardian of the person and of the estate of her granddaughter, Gabrielle Lawhon-Dyer. Appellee already had been awarded temporary custody of the child by the Juvenile Court of Ouachita County. The appellants, the mother and maternal grandparents of the child, filed a motion to dismiss the petition for guardianship contending that the probate court did not have jurisdiction to hear the guardianship petition while the juvenile court matter was still pending. The trial court entered an order appointing appellee guardian of the person and of the estate. We affirm the trial court’s ruling that it had jurisdiction, but remand the case for further proof.

Appellants first contend that the probate court was without jurisdiction. The argument is without merit. Ark. Stat. Ann. § 57-604 (Repl. 1971), a part of the probate code, was in effect at the time of the probate court hearing. It provides:

57-604. Jurisdiction — a. GENERALLY. The jurisdiction of the probate court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal.
c. NOT TO CONFLICT WITH JUVENILE COURT. The provisions of this Code shall not be construed to affect the jurisdiction or authority now vested in Juvenile Courts except in the matter of appointment of guardians.

Subpart a. of this statute provides that the probate courts have exclusive jurisdiction over all matters of guardianship, except guardianships ad litem in other courts. Subpart c. of the statute explains that the jurisdiction and authority which is vested in the juvenile courts is not to be affected by the provisions of the probate code “except in the matter of appointment of guardians.” Thus, the probate court had jurisdiction to hear this petition for guardianship. See Robins v. Arkansas Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981); and Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964).

In Robins v. Arkansas Social Services, supra, we explained the jurisdiction of the various courts involved with juveniles as follows:

In Arkansas the General Assembly does not have the power to create courts. Article 7, § 1, Constitution of Arkansas, Jansen v. Blissenbach, 214 Ark. 755, 217 S.W.2d 849 (1949). After the Arkansas Constitution was adopted there was a nationwide movement to create juvenile courts. The first juvenile court was created in Illinois in 1899. Twelve years later, by Act 215 of 1911, the Arkansas General Assembly established the juvenile court as a segment of the county court. That act was tested in the case of Ex parte King, 141 Ark. 213, 217 S.W. 465 (1919) and this court very carefully pointed out that the General Assembly had not created a new court, but authorized the county court, a previously existing and constitutionally created court, to exercise the special subject matter jurisdiction set forth in the statute. This special subject matter jurisdiction was bottomed solely on the basis of a public guardianship over infants as a class. The opinion explains that the existing constitutionally created courts would retain their traditional jurisdiction. Chancery courts would retain general jurisdiction over the persons (custody) and property of minors; probate courts would retain general jurisdiction over guardianships of the persons and estates of minors and of adoptions; while circuit courts would retain civil and criminal jurisdiction over minors.

The Juvenile Court Referee, although not involved in the probate proceeding, correctly understood the applicable law and found;

That pursuant to the case of Robins v. Arkansas Social Services, 273 Ark. 241, 617 S.W.2d 857 (1981), this Court finds that the Juvenile Court of Ouachita County, Arkansas retains concurrent jurisdiction with the Probate Court of Pulaski County, Arkansas. That Dorothy Ross-Lawhon has every right to proceed with a petition for guardianship in the Probate Court; however, the Juvenile Court of Ouachita County, Arkansas, retains jurisdiction to temporarily care for neglected or dependant children and to determine, while said child is considered to be neglected and dependent, what is best for said child’s care, welfare, safety, health, and education.

The Probate Court had jurisdiction to determine whether to appoint a guardian of the person and of the estate.

Appellants next contend that even if the probate court had jurisdiction, it proceeded to trial in an erroneous manner. The argument is meritorious,

Over appellants’ objection, evidence in the guardianship case was had by taking judicial notice of the juvenile court proceeding. In addition, the appellants were not allowed to put on evidence in opposition to appellee being appointed guardian. The procedure was erroneous. Courts do not take judicial notice of prior litigation in other cases, even between the same parties. May v. Edwards, 258 Ark. 871, 529 S.W.2d 647 (1975). In addition, proof must be taken in probate court before a guardian can be appointed. Ark. Stat. Ann. §§ 57-614, 57-615, and 57-607. The appellants were entitled to put on evidence in opposition to appellee being appointed guardian. The denial of the opportunity to cross-examine witnesses and put on evidence was a denial of due process of law. Accordingly, we remand the case to the probate court for a full hearing.

Reversed and remanded.

Purtle, J., not participating.

Holt, C.J., and Hays and Newbern, JJ., concur.

David Newbern, Justice,

concurring. The majority opinion is correct, and I agree with it in every respect. The purpose of this concurring opinion is to point out once again the need for a family court for Arkansas. See Jarmon v. Brown, 286 Ark. 455 at 457, 692 S.W.2d 618 at 620 (1985). The harmonization of the jurisdictional provisions undertaken by the majority opinion is correct, but the harmony is abstract and legalistic. Anyone who reads the opinion must realize that an Arkansas juvenile could be placed in the custody of a divorced parent by the chancery court, placed in the custody of a social services agency by the juvenile court, and subjected to a guardianship of his person by the probate court — all at the same time!

As the majority opinion says, courts can only be created by constitutional amendment. Again, this is but one of the problems we should try to iron out with a new judicial article.

Holt, C.J. and Hays, J., join in this concurrence.


author: Steele Hays, Justice.

text:
    Marvin HENDERSON v. STATE of Arkansas
    CR 85-193
    705 S.W.2d 14
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      Darrell F. Brown & Associates, P.A., for appellant.

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

Marvin Henderson appeals from a conviction of aggravated robbery and theft of property upon the single ground that the evidence against him is insufficient as a matter of law. We affirm the judgment.

Three employees of Bojangles’ restaurant in Little Rock testified that on the morning of July 15, 1984 an armed man wearing a ski mask approached them as they opened the restaurant for business. They said he guided them to the safe, knew the exact location of money bags, and gave other indications that he was familiar with the restaurant and its operation.

All three employees identified appellant as the robber. They were able to recognize him by an oblong shaped head under a tight fitting ski mask and by his voice, described as “very crisp and clear.” They said the man was relaxed and sure of himself. One of the employees testified that as the robber was collecting the money he realized from his voice and the peculiar shape of his head the robber was a fellow student at Philander Smith College. The witness identified appellant as the same man. The state proved as well that appellant had been a manager trainee at Bojangles in 1983.

Appellant argues that the verdict must be supported by substantial evidence as defined in Heard v. State, 284 Ark. 457, 683 S.W.2d 232 (1985) and Boone v. State, 282 Ark. 274, 688 S.W.2d 17 (1984). He maintains that identification by voice and the shape of one’s head fails to constitute substantial evidence as a matter of law. We considered a similar argument in Wilson v. State, 282 Ark. 551, 669 S.W.2d 889 (1984), and held the proof was sufficient to submit the case to the jury.

The proof in this case was that the appellant had a distinctive voice and that he spoke frequently to the employees as he shepherded them around the restaurant, first to the safe, then to the walk-in. That identifying feature was reinforced by testimony that the man who robbed the restaurant had a peculiarly shaped head, described as oblong and visible under a close fitting ski mask. There was also testimony that the robber knew the location of the safe and contents which, coupled with the fact that appellant had been employed by Bojangles some months earlier, renders the proof of identification of appellant as more than sufficient to submit the issue to the jury. Yandell v. State, 262 Ark. 195, 555 S.W.2d 561 (1977).

Affirmed.

Purtle, J., not participating.


text:
    William M. ASKINS v. M. Susan ASKINS
    85-165
    704 S.W.2d 632
    Supreme Court of Arkansas
    Opinion delivered March 10, 1986

      B.W. Sanders, and Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant.
    No brief filed.
   David Newbern, Justice.

In this divorce appeal the appellant raises three points with respect to the division of the parties’ property. He contends the chancellor erred by (1) considering his potential military retirement pay as marital property, (2) treating as marital property items acquired after the parties separated, and (3) calculating the appellee’s interest in the retirement pay on the basis of what the appellant will receive upon his retirement, thus giving the appellee the benefit of “enhancement” of his retirement pay which occurred before and after their marriage. By “enhancement” the appellant presumably means increases in the retirement pay which result from longevity and promotions. We find no merit in these arguments, and thus we affirm.

1. Pension Is Marital Property

In Day v. Day, 281 Ark. 261, 663 S.W.2d 719 (1984), we recognized the error in Paulson v. Paulson, 269 Ark. 523, 601 S.W.2d 873 (1980), which held a military retirement pension was not marital property. In Young v. Young, 288 Ark. 37, 701 S.W.2d 374 (1986), we held clearly that prospective military retirement pay is marital property.

2. Date of Division

The divorce was awarded in 1985 on the basis of three years separation. The parties had separated in 1981. The appellant contends, without citation of authority, that some of the assets should not have been divided by the chancellor because they were acquired by him after separation and before divorce. We note, however, that the decree purported to divide all personal property “used by either [appellant or appellee] as household goods. . . .” The decree also contained the following:

Any further real estate interests owned by either party or any identifiable interest in the personal property or stock in trade of the Defendant in her business enterprise known as the “Emporium” in Fairfax, Virginia, or any equity therein, is ordered divided fifty percent to each party.

The “Emporium” is the business in Virginia where the appellee has worked since the separation. The chancellor thus chose the date of divorce as the date upon which to ascertain what the marital property of the parties was although some of it had apparently been acquired while the parties were still married to each other but living separately. Our statute, Ark. Stat. Ann. § 34-1214 (A)(1) (Supp. 1985), clearly requires “distribution” of marital property at the time the divorce is entered. We hold it was not an abuse of the chancellor’s discretion to ascertain the extent of marital property and evaluate it as of that date as well.

3. Retirement Pay

The court held that when the appellant begins receiving his retirement pay from the Army the appellee will be entitled to one-half of a fractional interest in each retirement payment. The fraction will have a numerator of twelve, the number of years the parties were married during his military service. The denominator will be the number of years the appellant has served upon retirement. For instance, if he retires with twenty-eight years of service, the appellee will be entitled to one-half of 12/28 of his military retirement pay. The appellant says the flaws in the formula are three-fold. First, it gives the appellee the benefit of enhancement of the retirement pay which occurred during the appellant’s first eleven years of service when he was not married to the appellee. Second, it gives her the benefit of the enhancement which occurred between the date of separation and the date of divorce. Third, it gives her the benefit of the enhancement which will occur between the date of divorce and the appellant’s retirement.

The formula used by the trial court seems to accord with that used in Young v. Young, supra. There we approved awarding the spouse of a military retiree one-half of 17/20 of the retirement pay. In that case, the retirement had occurred during the marriage, and the parties had been married to each other for seventeen of the twenty years of military service.

As stated above, we hold it was within the chancellor’s discretion to evaluate the assets of the parties as of the date of divorce, thus we are not concerned with the period of enhancement of the military pension between the date of separation and the date of divorce.

The argument as to the pre- and post-marital enhancement is beguiling but not sound. The appellant cites no authority other than our decision in Marshall v. Marshall, 285 Ark. 426, 688 S.W.2d 279 (1985), for his proposition that the chancellor erred in this respect. He quotes the second headnote from our official reporter as follows: “Pension benefits based on contribution or services not made during the marriage constitute the separate property of the recipient.” The opinion in that case, however, said and held only that the spouse of an employee entitled to a pension would be entitled to a “proportionate share.” 285 Ark. at 429, 688 S.W.2d at 281. The case was remanded for a determination of what that share would be.

After reviewing many cases involving distribution upon divorce of a prospective military or other pension, we conclude the chancellor in this case was correct. The only support we have found for the appellant’s position is a dissenting opinion in Van Loan v. Van Loan, 162 Ariz. 272, 569 P.2d 214 (1977), where the dissenting justice contended the wife of a military person should not get the benefit of the enhancement of her husband’s military pay which occurred after the divorce. 569 P.2d at 217. The majority in that case refused to consider the argument because it had not been raised in the trial court. We might well take that approach here, because the record does not show any argument whatever was presented to the trial court with respect to the enhancement of the appellant’s pension before or after the marriage.

We are willing to go further in approving the chancellor’s decision, however, because we would affirm it even if the argument had been made below.

The task of the court is to ascertain the value of the prospective military pension as an asset of marital property. Section 34-1214 requires that it be divided with fifty percent to each party unless other considerations stated in the statute make other than equal division more equitable.

If Colonel Askins retired tomorrow or had retired on the day of his divorce, as he is and was eligible to do, under the chancellor’s formula Mrs. Askins would have been limited to a percentage of his base retirement pay determined as of that date. That is and was in Colonel Askins’s power to determine. If he had retired the day of the divorce and then gone to work for a company with a new retirement program, Mrs. Askins would not have been entitled to participate in the new retirement benefits. However, she is entitled to a percentage of whatever his military pension may be because that is the asset to which she contributed.

We are in no position to say, especially given the record before us, that Mrs. Askins’s contribution to the pension was any less because she was married to Colonel Askins in the middle of his career than it would have been had she been married to him for, say, the last twelve years of it. The enhancement of the ultimate retirement pay may be most dramatic at the end, but the record before us contains no evidence of that, and none whatever of military pay scales. Even if such evidence were in the record, we could not say with assurance that Mrs. Askins’s entitlement, based on her contributions to the marriage, should be less than, as in the example above, 12/28 of the pay expected. While no cases we have found, other than the one containing the dissenting opinion cited above, have gone into this “enhancement” discussion, many have approved a formula like that used by the chancellor in this case. See, e.g. Le Clert v. Le Clert, 80 N.M. 235, 453 P.2d 755 (1969); Cearley v. Cearley, 544 S.W.2d 661 (Tex. 1976); Woodward v. Woodward, 656 P.2d 431 (Utah 1982). See also Annot. 94 A.L.R. 3d 176 (1979 and Supp. 1985).

Had the chancellor decided not to divide equally the proportion of retirement benefits based on the twelve years of marriage, and had he stated good reasons as required by § 34-1214, we would have affirmed. The statute gives the chancellor that broad discretion. It is not the intent of the statute or this opinion to tie the chancellor to any specific formula for dividing prospective retirement benefits. See Addis v. Addis, 288 Ark. 205, 703 S.W.2d 852 (1986).

Affirmed.

Purtle, J., not participating.