text:
    Carla Blakemore CARTON v. MISSOURI PACIFIC RAILROAD COMPANY
    89-343
    798 S.W.2d 674
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      J.R. Nash, for appellant.

      Herschel H. Friday, Elizabeth J. Robben, and Scott J. Lancaster, for appellee.
   Robert H. Dudley, Justice.

Appellant, Carla Blakemore Carton, the driver of a diesel fuel transport truck, slipped and fell while unloading diesel fuel at appellee railroad’s terminal in North Little Rock. She sued the railroad for its negligence in constructing and maintaining its facility. The case went to trial and, at the close of the plaintiffs case, the trial judge granted a directed verdict. We reverse and remand for a new trial.

The first argument we address is an evidentiary one involving the cause of plaintiffs injury. The plaintiff testified that in order to unload her truck after reaching the terminal, she had to walk across a surface which “was dirty, messy, greasy, you know, it was a diesel fuel place, you unloaded fuel there.” She stated “spillage would accumulate and sit there.” She testified that, while diesel fuel was being pumped from her truck into the facility, she climbed into the cab of her truck to fill out some forms and, shortly thereafter, started to get out when she slipped and fell. At that point in her case-in-chief, the following occurred:

Q. [appellant’s counsel] What caused you to fall?
A. I believe if was the oil.

At this point there was an objection to a “belief’ which was sustained. The ruling was in error.

A.R.E. Rule 701 provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Further, A.R.E. Rule 704 provides:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Professor Weinstein explains that Rule 701 “seeks to balance the need for relevant evidence against the danger of admitting unreliable testimony. It recognizes that necessity and expedience may dictate receiving opinion evidence, but that a factual account insofar as feasible may further the values of the adversary system. . . . ‘The opinion rule today is not a rule against opinions but a rule conditionally favoring them.’ ” ¶ 701[02] at 701-9.

Weinstein further explains that, in order to satisfy the first requirement of Rule 701, the testimony must initially pass the personal knowledge test of A.R.E. Rule 602. But, even if the witness does have the requisite personal knowledge, any inferenees or opinions he expresses must thereafter pass the rational connection and “helpful” tests of Rule 701. “The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts. He may express the opinion or inference rather than the underlying observations if the expression would be ‘helpful to a clear understanding of his testimony or the determination of a fact in issue.’ ” Id. at 701-11. If, however, an opinion without the underlying facts would be misleading, then an objection may be properly sustained. Id. at 70Í-12, -13.

Here, plaintiffs testimony concerning the cause of her fall was based on her personal knowledge of the presence of fuel oil on the ground at the terminal. Further, the opinion that fuel oil on her shoes caused her to fall is one which a normal person would form on the basis of observed facts. Finally, plaintiff gave sufficient underlying facts to support the formation of her opinion regarding the cause of her fall. Since the answer was not considered by the trial judge in weighing the granting of the directed verdict, the ruling was prejudicial, and we must reverse.

The next assignment of error involves the granting of the directed verdict. The trial court held that the plaintiff failed to establish any substantial evidence supporting negligence on the part of the defendant railroad. The ruling was erroneous.

In ruling on a motion for a directed verdict, the trial court must view the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences Reducible from it. Kinco, Inc. v. Schueck Steel, Inc., 283 Ark. 72, 671 S.W.2d 178 (1984). If the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, then the motion should be granted. If, however, there is substantial evidence to support a jury verdict for the non-moving party, then it should be denied. Id.

Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id.

The plaintiff presented seven witnesses. A summation of their testimony, viewed most favorably to plaintiff, is as follows. The surface of the facility was composed of 3/4 to 1 inch sized gravel which was graded to a drain running into the North Little Rock sewer system. The railroad changed the gravel at the facility only twice in a seven-year period. The unloading of each truck would cause a spill of at least a cup of fuel as the result of coupling and uncoupling the hoses connecting the trucks to the facility. Some drivers would drain the hoses onto the gravel. Sometimes hoses leaked. As many as thirty (30) trucks per day unloaded about five million gallons of fuel per month. The result was that the gravel “was soiled pretty badly with fuel.” It was “dirty, messy, greasy ... it was diesel fuel there.” “Spillage would accumulate and sit there.” The danger was obvious.

The plaintiff was a business invitee to the railroad’s facility. The duties of occupiers of land to business invitees usually end when the danger is either know or obvious to the invitee. The plaintiff knew of the danger, and under normal circumstances the railroad’s duty to plaintiff would be ended. However, the obvious danger rule does not bar recovery when the invitee is forced, as a practical matter, to encounter a known or obvious risk in order to perform his job. Kuykendall v. Newgent, 255 Ark. 945, 504 S.W.2d 344 (1974). Thus, the defendant railroad owed plaintiff a duty to use ordinary care to maintain the premises in a reasonably safe condition. See A.M.I. 1104.

There was testimony that the railroad could have reduced the amount of spillage resulting from poor couplings and leaks in hoses by installing an unloading pump at the facility. Without such a pump, it was necessary to use the pumps on each individual truck to unload that truck. When the pump on a truck was used, it pushed the fuel out of the truck storage compartment and into the facility. If a pump at the facility had been installed and used, it would have drawn the fuel out of the trucks by creating a vacuum. As a result, the facility pump would lessen the leakage from poor couplings or holes in hoses. In addition, a concrete surface would have been “better” for the drivers. In sum, when the testimony is viewed in a light most favorable to the plaintiff, the non-moving party in the motion for a directed verdict, there was substantial evidence from which a jury might have found that the railroad did not maintain the premises in a reasonably safe manner because it failed to (1) remove “greasy” and “messy” gravel from the surface; (2) did not use a concrete surface; or (3) did not install a pump at the terminal.

For the reasons set out above, we reverse and remand the case. Plaintiff makes two additional arguments, neither of which has merit, but because the same arguments are likely to arise again at retrial, we summarily address them.

She argues that the trial court erred in refusing to allow her to introduce into evidence a complaint filed in federal court by the Environmental Protection Agency against the railroad. The trial court did not err in its ruling for at least two reasons. First, the complaint was hearsay and second, it was not relevant. She also argues that the trial court did not allow her sufficient leeway in impeaching one of her own witnesses. Clearly, A.R.E. Rule 607 allows one to impeach her own witness. However, the extent to which one can examine her own expert witness for purposes of impeachment is within the sound discretion of the trial court, and appellant has not shown how the trial court abused that discretion.

On cross-appeal, the cross-appellant railroad argues that the trial court erred in refusing to delete part of a sentence from an otherwise admissible medical report. The background necessary to understand the argument is as follows. It was cold and was “spitting snow” when the accident happened. The railroad contends the plaintiffs fall may have been caused by snow on the sole of her boot. Plaintiff contends her slip was caused by diesel fuel on her boot. Causation is one of the main points in the case. As part of her proof of causation plaintiff sought to put in evidence of a medical report. The railroad objected to that part of the report which is underlined below. “At the time she was in the process of getting out of the truck her foot slipped having apparently accumulated some diesel fuel on her sole. . . .’’Upon retrial the underlined part of the sentence should be excised.

Under A.R.E. Rule 803(4) a patient’s statements are admitted under the following conditions:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(Emphasis added.)

The basis for this hearsay exception is the patient’s strong motivation to be truthful in giving statements for diagnosis and treatment. Cotchett and Elkind, Federal Courtroom Evidence 144 (1986). Also admissible under the rule are statements regarding the cause of the condition, if pertinent to the diagnosis or treatment. However, where such information is not relevant for diagnosis, but rather attempts to fix blame, it may be excluded. Id., citing federal cases. “Thus a patient’s statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light.” Id. Similarly, plaintiffs statement that her foot slipped and she fell was admissible, but not that she had “apparently accumulated some diesel fuel on her sole.” The latter phrase was not pertinent to diagnosis or treatment given by the physician, and, more importantly, the patient had no motivation to be truthful in the statement because she knew that it would not matter in her treatment whether she had snow or diesel fuel on her boot. Thus, there is no basis for the hearsay exception.

Cross-appellant railroad’s last argument is that the trial court erred in ruling that the plaintiff was competent to testify.

In Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989), we wrote:

A trial court must begin with the presumption that every person is competent to be a witness. A.R.E. Rule 601. The burden of persuasion is upon the party alleging that the potential witness is incompetent. To meet that burden the challenging party must establish the lack of at least one of the following: (1) the ability to understand the obligation of an oath and to comprehend the obligation imposed by it; or (2) an understanding of the consequences Of false swearing; or (3) the ability to receive accurate impressions and to retain them, to the extent that the capacity exists to transmit to the factfinder a reasonable statement of what was seen, felt or heard. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986). The competency of a witness is a matter lying within the sound discretion of the trial court and, in the absence of clear abuse, we will not reverse on appeal. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982).

Here, the trial court examined the plaintiff with regard to the above criteria and found she was competent to testify. That finding was not an abuse of the trial court’s discretion.

Reversed on direct and cross-appeal.


source: Caselaw Access Project

author: David Newbern, Justice. Otis H. Turner, Justice,

license: Public Domain

text:
    Joseph TURRISE v. Wilda CRANE, Joseph Crane, and Lawrence J. Ruschke
    90-109
    798 S.W.2d 684
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990
    [Rehearing denied December 10, 1990.]

      Roy & Lambert, by: David E. Morris, for appellant.

      Frank H. Bailey, for appellees Wilda Crane and Joseph Crane.

      Poynter & Gearhart, P.A., by: Terry Poynter, for appellee Lawrence J. Ruschke.

      Glaze and Turner, JJ., would grant rehearing.

   David Newbern, Justice.

Joseph Turrise, the appellant, was the driver of a van in which the appellees, Wilda Crane and Lawrence J. Ruschke were passengers. The van ran off the road and overturned, and Mrs. Crane, joined by her husband, and Rushke sued Turrise alleging the wreck and their resulting injuries were due to his negligence. A jury verdict signed by nine of the jurors who heard the case was returned in favor of Turrise. The trial court granted a new trial on the ground that the verdict was clearly contrary to the preponderance of the evidence. Mr. Turrise contends the court abused its discretion by granting the new trial motion. We find no abuse of discretion, and thus we affirm the court’s ruling granting a new trial.

Mr. Turrise and his passengers had been to a luncheon for senior citizens at Brockwell, Arkansas, and were returning to Mountain Home on a clear, sunny day at around 1:00 p.m. As the van approached a curve to the left, it did not turn with the curve, thus going off the pavement on the right side and onto a grassy bank. It then struck a culvert and overturned. Mr. Turrise testified that a big truck was “coming my way” and just as it passed, “a blue car shot out in front of me and I didn’t have. . . time to blow the horn or put on the brakes or anything.” He testified he at first tried to get the van back on the road but he was slipping into a ditch. He realized he might turn over, so he decided to try to cross and stop on the other side of the ditch. At that point the van hit the culvert with its left wheel and rolled over.

Mr. Turrise testified he was abiding by the speed limit, and the passengers testified that they noticed nothing unusual about the way he was driving prior to the accident.

There was testimony from three disinterested witnesses. Danny Lackey testified he was driving near the scene of the accident. He had an unobstructed view of the front of the van coming toward him. He saw the accident. He testified that the driver of the van was looking off the highway at the time and that there was neither a blue car nor other traffic in front of the van when it left the road.

Earl Jennings was also present at a position where he could see the oncoming van, and he testified he saw no blue car or other traffic in the vicinity of the van when the accident occurred. Mr. Turrise contends Jennings’s testimony must be discounted because he said he was not watching the traffic. Jennings had come to his son’s mailbox which was at the side of the road near the scene of the accident. As he turned away from the mailbox after having checked it, he happened to look in the direction from which the van was coming. He first observed the van traveling in its lane of traffic, and then saw it gradually leave the road. He testified on direct examination (with emphasis added) as follows:

Q You just happened to be looking that way?
A I just turned around from the mailboxes and saw it coming down the road.
Q When you first saw it, sir, was there any traffic going south that you noticed?
A No,
Q Was there any traffic in front of the vehicle going toward Mountain Home?
A No.
Q You had a clear shot and you could have seen any vehicles that were there?
A Yes, I could have.
Q Is there any question in your mind that there was no other traffic in front of this van that caused this wreck?
A There was no other traffic.
Q There was no little blue sports car or no blue car? A No.
Q If there had been, you would have seen it?
A I would have seen it, yes.

On cross examination, Jennings testified as follows:

Q Now, as far as the traffic is concerned, you weren’t looking at the traffic or anything as you walked up to the mailboxes, were you?
A No.
Q And it’s certainly possible, as you walked up to the mailboxes and as you were getting the mail that there was some traffic in the area that you just didn’t notice because you just weren’t paying much attention to it then, were you?
A I wasn’t looking at the traffic, no.
Q And it’s possible traffic could have gone by, then, isn’t there?
A Well, it’s possible.

Although Jennings testified about not observing the traffic before and during his approach to the mailboxes, we do not consider his direct testimony to be weakened by those statements. He first observed the van when it was in its proper lane of traffic, and at the critical time, which was after he had checked for the mail and turned away from the mailboxes, he said he observed the van go from being properly in its lane to leaving the road. It was at that point that he was apparently paying attention to the traffic, and he said there was none.

The accident was investigated by Arkansas State Trooper Mark Blankenship. His investigation revealed that the van had left the highway gradually. There was no sign that its brakes had been applied or that it had swerved off the road. He said that had the wheel of the van been turned suddenly there would have been evidence of it but there was none. The grass on which the van had travelled was pressed down but not broken, thus indicating no application of the brakes.

In granting the new trial motion, the judge wrote: “The court specifically finds that the defendant’s testimony was at consummate variance with the physical evidence described by the state trooper and the testimony of independent witnesses.”

A trial court may not substitute its view of the evidence for that of the jury and grant a new trial unless the verdict is clearly against the preponderance of the evidence. Ark. R. Civ. P. 59(a)(6); Wilson v. Kobera, 295 Ark. 201, 748 S.W.2d 30 (1988); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). The test we apply on review of the granting of the motion is whether the trial judge abused his or her discretion. Scott v. McClain, 296 Ark. 527, 758 S.W.2d 409 (1988). A showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail. Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986).

Other than the Clayton and Kobera cases, Turrise cites Schrader v. Bell, 301 Ark. 38, 781 S.W.2d 466 (1989), in support of his contention that the trial court abused its discretion. In that case, the evidence showed that the brakes on the defendant’s car had failed for mechanical reasons as he approached an intersection. His car struck the plaintiffs car. The jury found for the defendant, the trial court granted a new trial, and we reversed. There was independent evidence from which the jury could have concluded that the accident was no fault of the driver, and we held the trial court’s conclusion that the evidence showed the defendant had failed to take proper evasive action amounted to a substitution of his judgment for that of the jury. In the case before us now, the only evidence before the jury negating Turrise’s apparent breach of duty to maintain control of his van was Turrise’s testimony that there was a sudden emergency.

Much closer to this situation is the case of Stephens v. Saunders, 293 Ark. 279, 737 S.W.2d 626 (1987). There the defendant was driving a heavily loaded tractor-trailer rig approaching a bridge where road repairs were in progress. The bridge was open only to one lane of traffic. The defendant driver testified that as he approached stopped traffic in his lane, a car suddenly pulled in front of him and he thus had to cross into the single open lane on which the plaintiff, who had been waved through by a flagman, was coming. The physical evidence showed that the truck had driven 650 feet onto the bridge when it struck the plaintiffs’ car and pushed it another 211 feet. We held that the trial court did not abuse its discretion in granting a new trial, thus overturning a defendant’s verdict, because the defendant’s testimony and arguments were “so much at variance with the physical evidence and the testimony of the other witnesses.” For another case in which we affirmed a trial court’s ruling granting a new trial in similar circumstances, see Dyers v. Woods, 289 Ark. 127, 710 S.W.2d 1 (1986).

In this case, the only evidence tending to excuse Turrise’s failure to keep the van on the road is his sudden emergency testimony. However, the physical evidence shows a course of conduct contrary to that which an ordinary person would have undertaken when confronted with such an emergency. The evidence given by the other witnesses, combined with the physical evidence, amounted, in the trial judge’s judgment, to a clear preponderance in favor of the Cranes and Ruschke. We cannot say he abused his discretion by granting a new trial.

Affirmed.

Dudley, Glaze, and Turner, JJ., dissent.

Otis H. Turner, Justice,

dissenting. I vigorously dissent from the majority’s strange affirmance. This case arises from a single vehicle accident in which the passengers (appellees) sued their host (appellant) for injuries received when the van in which they were riding left the road, hit a culvert, and overturned.

The appellant, the driver of the van, testified that he met a large truck, and immediately thereafter a blue car suddenly pulled onto the highway from behind the truck and, going in the same direction as the appellant, “gunned it.” He further testified that in attempting to miss the blue car, he turned his steering wheel to the right “enough to avoid hitting him” but did not apply his brakes because he didn’t have time.

At the scene of the accident, the road begins to curve at a point that would have been to the appellant’s left at the approximate spot his van went off the highway. The appellant testified that he was fearful he would turn over if he jerked the van back to his left, and, in his attempt, to go through a ditch, he struck a culvert. The passengers in the appellant’s van could shed no light on the events except to say they noticed nothing unusual about the driving before the accident.

Earl Jennings, who testified that he saw the accident, was called as a witness for the appellees. He stated that he observed the van before the accident and that it was in its proper lane “as I turned around from the mailbox.” He further testified that he saw nothing to draw his attention to the van; that it just gradually pulled off the road in the curve, hit the culvert, bounced into the air and started to roll; and that there was no other traffic on the roadway. He also testified that there was a driveway from which a. car could have entered the highway, but that none came out at this time. On cross-examination he testified:

QUESTION: It’s certainly possible, as you walked up to the mailboxes and as you were getting the mail that there was some traffic in the area that you just didn’t notice because you just weren’t paying much attention to it then, were you?
ANSWER: I wasn’t looking at the traffic, no.
QUESTION: And it’s possible traffic could have gone by, then, isn’t there?
ANSWER: Well, it’s possible.

Danny Lackey testified on behalf of the appellees by deposition. Mr. Lackey said that he saw the van drive off the road and that he was meeting the van at that time. The witness was questioned and responded as follows:

QUESTION: Did you happen, when you noticed this van going off the road, did you happen to look at the driver to see what he was doing?
ANSWER: Yeah, I was looking right at him.
QUESTION: What was he doing?
ANSWER: He was just looking off the road.
QUESTION: Just looking off the road?
ANSWER: Yeah.
QUESTION: Was he sitting up erect in the seat or slumped over? What was his position?
ANSWER: No, he was — as far as I could tell, he was sitting there just like any normal person would be.
QUESTION: All right, but that’s the point of the question I am getting at is, his van was going of the road at this time. Was he, according to what you saw, was he doing anything out of the ordinary besides just sitting there?
ANSWER: Just sitting there. He wasn’t — just drove it off the road, that’s just all I can say. Just drove off the road.

Mr. Lackey further testified in his deposition that he was turning into a mobile home park on the other side of the highway as the van was leaving the road. Mr. Lackey then testified, somewhat increduously, that when the van hit the culvert it started “turning over and bouncing high as the highline poles, two or three times.”

The investigating state trooper testified that he found “a path that started off the highway where the vehicle had exited the shoulder, traveled down the roadside. This is a grassy ditch all the way through to this drainage tile. It struck the drainage tile, it appeared, with the left front of the vehicle.” He further testified that he found no evidence indicating that the brakes had been applied, nor marks or evidence on the roadway indicating that the driver had “yanked” his wheel to the right as he left the roadway. The trooper further testified that during his investigation at the scene he inquired of the appellant what had happened. The appellant replied that he could remember nothing except that a car had turned in front of him causing him to leave the roadway. This statement was given to the trooper approximately fifteen minutes after the accident.

At the close of the evidence, the jury returned a verdict for the appellant. Upon motion of the appellee, the jury’s verdict was set aside, and a new trial was granted. In setting aside the verdict, the trial court said that “the defendant’s testimony was at consummate variance with the physical evidence described by the state trooper and the testimony of independent witnesses.”

I submit that the trooper’s testimony describing the physical facts is totally consistent with the appellant’s testimony concerning what had happened except that the trooper obviously could not say whether a car did or did not pull out in front of the appellant. The trooper did testify, however, that within fifteen minutes of the collision the appellant reported that that was precisely what had occurred.

The jurors chose to believe the appellant’s testimony over the illogical testimony of a witness who said the van “went higher than the light poles” and over the testimony of another who admitted on cross-examination that it was possible other traffic went by that he didn’t see because “I wasn’t looking at the traffic, no.”

Certainly, the appellant’s version of the accident was not without its weaknesses. Seldom do we see a trial when there is not a sharp dispute regarding one or more essential factual issues. Though not perfect by any stretch of the imagination, the jury system serves us well, and it is particularly disturbing to me when a trial judge intervenes and substitutes his or her judgment for the collective judgment of the twelve triers of fact.

We require that before a trial court may substitute its view of the evidence for that of the jury, the jury’s verdict must be clearly against the preponderance of the evidence. A.R.C.P. Rule 59 (a) (6). The only means we have of ascertaining the basis for the trial court’s decision is by examining the language in his order setting aside the jury verdict. The record, quite simply, will not come close to sustaining the court’s finding.

I choose to believe that a jury verdict — reached after consideration of the evidence introduced at trial in light of a proper explanation of the applicable law — should be tampered with only under exceptional circumstances, such as when the verdict is clearly shown to be contrary to the evidence.

In addition, I also disagree with the majority’s statement that “a showing of abuse is more difficult when a new trial has been granted because the party opposing the motion will have another opportunity to prevail.” The facts have been fully developed here and a jury has decided the factual issues, only to have the verdict set aside by the trial court. What kind of chance does appellant now have at a new trial, in the wake of the trial court’s action and our affirmance? Will we reverse if the trial court sets the verdict aside a second time? A third time? More importantly, will we affirm the trial court’s substitution of its version of the evidence on each occasion? The losing party in such a situation suffers less prejudice than the party losing the case before the jury? Nonsense! We leave him without any hope of success.

I would reverse.

Dudley and Glaze, JJ., join in this dissent.


author: Tom Glaze, Justice.

text:
    Ricky LADEN v. Sandra MORGAN
    90-130
    798 S.W.2d 678
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      Jim Dunlap, for appellant.

      John C. Wisner III, for appellee.
   Tom Glaze, Justice.

This is a paternity case in which appellant claims the trial court erred in relying on an inadmissible paternity evaluation report when finding him the father of appellee’s child. The trial court’s paternity order was entered on December 14,1989, or more than six months prior to our decision in Boyles v. Clements, 302 Ark. 575, 792 S.W.2d 311 (1990). There we reversed and remanded a paternity case finding that the trial court erred in allowing Clements to introduce a paternity blood test report, showing that Boyles was the father of Clements’ child, when that report failed to comply with the foundational requirements provided in Ark. Code Ann. § 9-10-108 (Supp. 1989). Those requirements under § 9-10-108 require that report to be in affidavit form and have a proper jurat, to reflect the person who performed or supervised the test and to give the qualifications of that person.

Here, appellee concedes that the trial court, in admitting appellee’s blood test report, committed the same errors as those described in Boyles, and requests that this matter be reversed and remanded to permit the trial judge to reconsider the evidence, as was done in Boyles. We pointed out in Boyles that it was not clear on what basis the trial court made its judgment, finding Boyles to be the father of Clements’ child, since the court admitted and considered a paternity report that we held was inadmissible. In finding Boyles the father, the trial judge’s order stated that he was relying on “the testimony, evidence submitted herein, and for other reasons.” No mention of the paternity report was included in the court’s findings. For these reasons and because the credibility of the witnesses was a critical factor in determining the paternity issue, we remanded the case for further proceedings since the chancellor was in a superior position to decide the matter.

The same situation exists here as existed in Boyles. The trial court’s judgment reflects the judge entered his paternity order against appellant based on the “testimony, evidence submitted and for other reasons.” Accordingly, we remand this cause for further proceedings consistent with this opinion rather than to make an attempt to decide this case on de novo review.


text:
    Debra Lynn TAYLOR v. STATE of Arkansas
    CR 89-222
    799 S.W.2d 519
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      Mark S. Cambiano, P.A., for appellant.

      Steve Clark, Att’y Gen., Kelly K. Hill, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was charged as an accomplice to the premeditated murder of her husband, Roy Taylor. Henry Price also was charged with the murder, but he pleaded guilty and was sentenced to forty years imprisonment. At appellant’s trial, Price testified and admitted to his and appellant’s respective roles in the crime. Appellant was convicted and sentenced to life imprisonment. She raises seven points for reversal.

We first consider appellant’s contention that the trial court erred in failing to suppress statements she made to investigating officers. Taylor’s body was found at home on October 22, 1988, and appellant initially gave a statement to North Little Rock officers on that date. She gave another statement on October 27, the day of Taylor’s funeral, and in that statement, gave general background information in an attempt to locate or eliminate suspects. On this date, and after her statement, the police placed her under surveillance. At this stage of their investigation, the officers believed she had been engaged in an extramarital affair, and it was during this surveillance that they observed her spending several nights in motels with Price. During this same period, the officers were investigating a boyfriend of a woman whom Taylor had been seeing prior to his death.

Appellant again met with the North Little Rock police on November 4 for another investigative interview which focused on any drug contacts or extramarital relations Taylor might have had that could possibly be connected with his death. In this same interview, the officers first became aware that appellant was being untruthful with them because while appellant denied having had any affairs with anyone, they had just confirmed that she was intimately involved with Price.

Finally, on November 9, the police took Price in for questioning, and upon learning of this, appellant called the police to inquire about this latest event. Appellant was asked to come to the station, and she did, whereupon she was notified that she was a suspect in her husband’s killing. The officers then told her some of the evidence that implicated her in the murder, and afterwards, they read her her Miranda rights. Following this procedure, appellant gave a statement, which reflected her involvement in the murder.

Recently, we reiterated the settled rule that the safeguards prescribed under Miranda v. Arizona, 384 U.S. 341 (1976), become applicable as soon as a suspect’s freedom of action is curtailed to a degree associated with a formal arrest. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). We further stated as follows:

[NJo Miranda warnings are required if the questioning by officers is simply investigatory and that an officer’s unarticulated intent has no bearing on the question of whether a suspect is in custody; rather, on that issue, the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation. (Emphasis supplied.)

Id., 296 Ark. at 58, 754 S.W.2d at 526.

According to the testimony at the suppression hearing, appellant voluntarily appeared at the police station on each of the aforementioned occasions, and, except for her last visit, her freedom was never curtailed, and she was free to leave at all times. The record reflects that the police officers initially did not suspect the appellant of any complicity in her husband’s murder and only became aware that she had been untruthful with them when on November 4 she denied any involvement with Price. After that date, the officers focused their investigation on Price and appellant, and when she appeared at the police station on November 9, the officers prevented her from making any statements concerning her involvement in the murder until she had been informed of and had waived her rights.

We conclude the evidence clearly supports the trial court’s ruling that the officers’ investigation had not reached the accusatory state towards appellant until after November 4. Further, appellant’s interviews did not become custodial in nature until November 9, at which time she was properly advised of and waived her rights before giving the statements that implicated her in the murder.

Before leaving this suppression issue, we note appellant’s argument that she had asserted her right to counsel on October 25, and that, under the principles set out in Shea v. Louisiana, 470 U.S. 51 (1985), and Edwards v. Arizona, 451 U.S. 477 (1980), the officers were obliged to stop further interrogation of her until her counsel was present or unless she initiated further communication with the police.

As pointed out above, the appellant was not a suspect on October 25, the date when she initially appeared at the police station with a friend, who also was an attorney. Appellant’s purpose for appearing on this date was to obtain some items that had been confiscated by police as part of the investigation. She did not give a statement on this visit. The attorney testified that at the time he and appellant went to the station, no one suspected the appellant of murder, and he made it clear to the police that he in no way legally represented the appellant. After their initial trip to the police station, the attorney said the appellant called him later, and in this conversation, he advised her to obtain counsel if the officers should read her her rights. Again, the record simply fails to support her claim that she had asserted her right to counsel. Indeed, the proof clearly supports the view that she knew her attorney friend did not represent her in this matter, and that, at all relevant times, she voluntarily chose to meet with the officers who were conducting an ongoing investigation of Taylor’s murder. That being so, appellant’s reliance on Shea and Edwards is misplaced. The trial court was correct in allowing her statements into evidence.

Appellant next contends that her conviction cannot be based solely upon Price’s (her accomplice’s) testimony unless corroborated by other evidence which connects her with the commission of her husband’s murder. See Carr v. State, 300 Ark. 158, 777 S.W.2d 846 (1989); Ark. Code Ann. § 16-89-111 (1987). She also argues the broader issue that the evidence was insufficient to support her conviction. We disagree with both contentions.

First, having determined appellant’s statements admissible, we conclude that an abundance of evidence exists to corroborate Price’s testimony implicating appellant in the crime. For example, she admitted in her statement to the police and in her testimony at trial that, approximately two and one-half months prior to Taylor’s murder, she and Price had discussed killing her husband. She also admitted they discussed having someone perform the murder or that they might cause his death to appear as a result of a hunting accident or a robbery at his office. During this planning stage, appellant obtained an increase of $300,000 in her husband’s life insurance. In reaching their final plans, she conceded that she and Price agreed that Taylor must be shot, but that appellant must be elsewhere when the murder occurred. Appellant stated further that she and Price discussed these plans during the week Taylor was killed. On October 21, she went to her brother’s home in Texarkana and called Price that night. She admitted that, in her conversation with Price, he told her Taylor “might not be there” when she got back, and she took this to mean Taylor would be dead. According to Price, appellant was to call back the next morning to find out whether Price had actually killed Taylor and appellant’s statement and phone records corroborate Price’s assertion.

Price’s other testimony is generally consistent with the foregoing evidence connecting the appellant with Taylor’s murder. He related that he and appellant developed a code by which appellant would call Price on the morning of October 22, and he would tell her to shop for a black dress, indicating Taylor had been killed. While appellant denied such a code, appellant admitted to having called Price on the morning of October 22 and claims he said, “[H]e could not do it (kill Taylor).” Such an admission, while specifically denying knowledge of a code, certainly leads to the inference that she had called Price to find out if he had killed Taylor. Considerable proof was offered reflecting appellant’s intimate relationship with Price, their shared concern over Taylor’s abusive nature towards the appellant and their repeated discussions concerning plans to murder Taylor. At the end of the officers’ investigation of Taylor’s murder, appellant conceded to one officer that “she knew that she would be caught.” Other evidence exists that further reflects appellant’s complicity in Taylor’s murder, but we believe the foregoing sufficiently supports her involvement and connection with the crime.

Appellant also urges the trial court erred in failing to give jury instructions on the lesser included offenses of manslaughter or negligent homicide. She cites Ark. Code Ann. § 5-2-406 (1987), which provides that when two or more persons are criminally liable for an offense of which there are different degrees, each person should be liable only for the degree of the offense that is consistent with his own mental culpability. In using § 5-2-406 as her basis, appellant claims that she had nothing to do with planning Taylor’s murder, but because of Price’s love for her, their inability to be together and her telling Price how Taylor had abused her, she may have, by her negligent conduct, misled Price into committing the homicide. In other words, she submits that the intentional or premeditated state of mind of Price, the principal, in committing the murder should not automatically be assigned to her as an accomplice, since she never actually intended for Price to kill Taylor. She explains that Price’s and her discussions regarding the various ways to murder Taylor were only fantasies.

The trial court indicated that Price’s intent was controlling when selecting instructions in the appellant’s case, but regardless of whose intent controlled, appellant’s or Price’s, the court stated, and justifiably we believe, that it was unconvinced that an instruction on manslaughter or negligent homicide applied to the conduct of either Price or the appellant. Where the evidence shows the guilt of the defendant as to the greater offense, it is not error to refuse instructions on the lesser included offenses. Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). In any event, the court’s instructions given here on first and second degree murder focused on appellant’s intent, not Price’s, and the jury was not deprived of its ability to determine appellant’s intent with respect to Taylor’s murder.

In addition, we point out that the jury convicted appellant on the greater offense of first degree murder even though the lesser included offense of second degree murder had been given. Under these circumstances, we have held that any error resulting from the failure to give lesser included offenses is cured. See Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989).

Appellant’s next point for reversal concerns the trial court’s admission into evidence of a photograph depicting Taylor with his children. She claims the picture was irrelevant, but if relevant, its probative value was substantially outweighed by its prejudicial value. We disagree. Here, appellant injected into the trial the issue of Taylor’s abusive and cold nature towards her and the children. We cannot say the trial court abused its discretion when allowing the photograph for whatever limited purpose it might have shed on Taylor’s relationship with his children. See Gardner, 296 Ark. at 59, 754 S.W.2d at 527.

Appellant raises another argument that she seems to concede has little or no merit, viz., she is constitutionally entitled to an indictment by grand jury. It is well settled that states are not required to charge by indictment but may charge by information. Hurtado v. California, 110 U.S. 516 (1884). This court has addressed this issue on a number of occasions and has consistently refused to extend the right to grand jury indictment to proceedings in this state. Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988).

Appellant also claims error resulted from the trial court’s failure to grant a mistrial because of a bomb threat that occurred in the courthouse on the first day of her trial. Actually, the threat proved to be unrelated to appellant’s case, and the trial judge so informed the jurors. Apparently, a news account in the next day’s newspaper erroneously related the threat with the appellant’s case. However, to guard against such accounts and possible prejudice, the court had previously admonished the jurors not to discuss the case, nor read, watch or listen to any media account of it.

After the news article and on the second day of trial, the judge expressly questioned the jurors to insure no prejudice resulted from the bomb threat or any account of it. We have held that a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial. Richmond v. State, 302 Ark. 498, 791 S.W.2d 691 (1990). Here, the appellant failed to demonstrate, and we fail to see, how the threat prejudiced her case. To the contrary, we believe the precautions taken by the judge assured no prejudice infected the trial.

Finally, while this case was pending on appeal, appellant filed a petition for writ of error coram nobis, claiming she is entitled to a new trial because Price, by letter, has recanted part of his trial testimony that implicated appellant in the murder. At trial, Price testified that he got a gun from his brother-in-law. He apparently used the gun to shoot Taylor. After he shot Taylor, he said that he hid the gun in the attic of the Taylors’ house. He further testified that he later showed appellant where the gun was, and she retrieved it for him. He subsequently threw it into the Arkansas River.

In a letter written by Price after the trial, Price indicated his testimony connecting appellant with Taylor’s death was either misleading or false, stating specifically that appellant “never gave Price any gun.” Price’s subsequent denial that appellant had anything to do with the murder weapon clearly does not dispell appellant’s participation in her husband’s murder, especially in view of all the evidence we reviewed above that connected her with the crime. Her statement with Price’s and the other physical evidence meshed remarkably to show her connection and involvement in the murder.

As we held in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), a writ of error coram nobis is a rare remedy, more known for its denial than its approval. The writ is granted only when there is an error of fact extrinsic to the record such as insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor. Id. It must be a fact which might have resulted in a different verdict. Id. The situation in the present case simply fails to fit within the remedy sought. See also Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). Accordingly, we deny appellant’s petition.

Pursuant to Sup. Ct. R. 11 (f), we have reviewed the record and all objections ruled adversely to the appellant and find no prejudicial error. For the reasons given above, we affirm the trial court on all points, and in addition, deny appellant’s request for a writ of error coram nobis.


author: Otis H. Turner, Justice. Dale Price, Justice,

text:
    Craig Martin RYAN v. STATE of Arkansas
    CR 90-72
    798 S.W.2d 679
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990
    [Rehearing denied December 10, 1990.]

      Wilson & Associates, P.A., by: Jack T. Lassiter, for appellant.

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

      Price, J., would grant rehearing.

   Otis H. Turner, Justice.

The appellant, Craig Ryan, was convicted on charges of possession of cocaine with intent to deliver, possession of marijuana with intent to deliver, and possession of drug paraphernalia; he was sentenced to a total of sixty years imprisonment. In appealing the convictions, the appellant contends, first, that the admission into evidence of his statement given to law enforcement officers four days after the arrest and prior to his arraignment was error and, second, that the trial court should have suppressed the evidence seized in a warrantless search of the appellant’s vehicle. Finding no error, we affirm.

Chief of Police Robert Wochner of the Bull Shoals Police Department found the appellant’s unattended and disabled automobile on the side of Highway 178 on August 18, 1989. Shortly after Chief Wochner’s arrival, the appellant appeared with a tire and sought the assistance of the officer in moving the car from the roadway. Prior to permitting the appellant to operate the vehicle, Chief Wochner requested Ryan to produce an operator’s license and proof of insurance as required by Arkansas law. Ryan could produce neither and was therefore arrested and taken to the Marion County Sheriffs Department where the officer also directed the auto be towed.

After the appellant was processed at the Marion County Sheriffs Office, Chief Wochner proceeded with an inventory search of the vehicle, a procedure routinely followed when an automobile is impounded. In the course of the search, the officer discovered five plastic pouches containing a white crystalline powder (later identified as cocaine) and drug paraphernalia in a pillow case located near the driver’s seat of the automobile. At that point, the inventory search was terminated and a search warrant was obtained from the municipal judge.

Upon returning to the appellant’s car, Chief Wochner, accompanied by state police and county officers, completed the search pursuant to the warrant. The search yielded a quantity of marijuana, two hollow aluminum baseball bats containing cocaine residue, and other items of drug paraphernalia. Officers also found a passport and other documents indicating Ryan had been in Colombia.

During the afternoon of August 18, prior to questioning, the appellant was advised by the officers of his Miranda rights. When questioned, Ryan gave the officers general information but made no incriminating statements.

On August 21, the appellant, without solicitation, advised Chief Wochner that he might be willing to discuss his situation with federal agents. On the following day, August 22, the appellant was again advised of his Miranda rights, which he acknowledged by initialing a form provided to him. Thereafter, the appellant, without an attorney being present, gave an incriminating statement in the presence of Chief Wochner, a United States Drug Enforcement Administrative agent, and two United States Customs Service Agents. The statement was introduced at the subsequent trial.

The appellant told the investigating officers that he had been to Colombia several times and that he had brought three pounds of cocaine into the United States using the hollow baseball bats. He stated that he bought cocaine in Colombia for $1,700 per pound, had flown into Mexico, and on two separate occasions had walked across the border at Brownsville, Texas, with the bats. The first time he carried one pound of cocaine and the second time two pounds. Ryan said this was his personal cocaine to sell to make more money to return to Colombia for a larger deal. During the course of the interview, Ryan expressed an interest in being released and sent to Colombia where he could work as an undercover agent for the Drug Enforcement Administration.

The appellant had not been arraigned at the time the incriminating statement was given. Further, he was not arraigned until August 28, 1989, ten days after the arrest.

Arkansas Rule of Criminal Procedure Rule 8.1 directs that “An accused person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.” The appellant’s first point for reversal turns on the interpretation of the phrase “unnecessary delay.” In Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), we noted that neither the rule nor the commentary to the rule provides guidance in interpreting the meaning of the term or the effect a violation would have on the admissibility of evidence procured during such a delay. Although we considered authorities that established fixed time limits for taking an accused before a judicial officer in determining the voluntariness of a confession, this court did not decide upon a specific time limit. Instead, we adopted the Pennsylvania three-part test, set forth in Common wealth v. Davenport, 370 A.2d 301 (Pa. 1977), requiring that in order for evidence obtained from a statement voluntarily made to be rule inadmissible: “(1) the delay must be unnecessary; (2) the evidence must be prejudicial; (3) the evidence must be reasonably related to the delay.” 291 Ark. at 529. (Emphasis in original.) In Duncan, the appellant was mildly retarded, was neither given a Miranda waiver form to sign nor asked whether he waived his rights, and was kept incommunicado for three-and-a-half days, after which he gave an inculpatory statement. As a result, all three requirements were deemed to be satisfied, and the confession was excluded as evidence.

The appellee concedes that the first two elements of the test — unnecessary delay between the time of arrest and arraignment and prejudicial statement — are present. Only the difficult issue of the relationship, if any, of the evidence to the unnecessary delay remains to be considered. The record in this case establishes that at the time of Ryan’s arrest on Friday, August 18,1989, the earliest time at which he could be expected to be taken before a judicial officer and arraigned would have been on the following Tuesday, August 22. On Monday, August 21, the appellant suggested or requested an audience with federal officials which was accomplished the following day, August 22. There is no showing why the appellant could not have been arraigned prior to the confession conference on Tuesday; however, it does not appear that the appellant, who was seeking to secure the best deal possible from the state and federal officials, would have likely acted any differently had his arraignment occurred prior to the conference.

The real issue here is not whether the ten-day delay before the appellant’s appearance before a magistrate was unreasonable and unnecessary: it was. The crux of the matter is whether or not the failure to arrange for the appellant’s appearance during the period from Friday afternoon to shortly before noon on Tuesday was unnecessary and prejudicial and whether the confession given on Tuesday was reasonably related to that delay.

In Branscomb v. State, 299 Ark. 482, 774 S.W.2d 426 (1989), the defendant arrived at jail on a Thursday and the following Friday morning waived his rights and gave inculpatory statements to a police investigator. The following Monday he was taken before the municipal court, which met only on Mondays. We held the evidence to be admissible and unrelated to the delay. In distinguishing Branscomb and Duncan, we noted that, unlike the defendant Branscomb, Duncan was held incommunicado for three days; further, in Duncan, the officers admitted their verbal abuse.

In Owens v. State, 300 Ark. 73, 777 S.W.2d 205 (1989), where the defendant was detained two-and-a-half days before giving an inculpatory statement and three-and-a-half days prior to his appearance before a judicial officer, we held that the statement was not reasonably related to the delay. We again recited the distinctive factors set forth in Duncan, where the criteria was established, and distinguished Owens by pointing out that Owens was not denied access to family members, friends, or an attorney. 300 Ark. at 77, 777 S.W.2d at 206-207.

We recognize the subjective nature of the “reasonably related” test. However, we are not here saying that the holding of an accused incommunicado or the subjecting of the accused to verbal abuse or threats or the denying of access to family or friends are requirements for satisfying the third prong of the Duncan test. By the same token, we are not prepared to say that the mere passage of time from Friday afternoon to Tuesday morning in this instance necessarily indicates that the statement is related to the delay. Each case must be considered taking into account the totality of the circumstances. Under the circumstances existing in the present case, we find that the inculpatory statements given by the appellant to the officials were not reasonably related to any delay but were apparently prompted by Ryan’s desire to negotiate a bargain with authorities to his advantage.

The appellant next contends that the trial court erred in not suppressing the evidence seized from the automobile because (1) the state did not provide sufficient proof of standard police procedures, and (2) the search was pretextual.

In his pretrial motion to suppress, the appellant alleges the officials conducted a warrantless search in violation of the Arkansas and United States Constitutions: the search was made without consent and, in the absence of any exigent circumstances, violated the Arkansas and United States Constitution; during the course of the warrantless search, the appellant’s property was seized in “violation of the defendant’s Fourth and Fourteenth Constitutional Amendment Rights.”

Chief Wochner testified that every time a vehicle is impounded at the Marion County Sheriff’s Office it is inventoried. At the commencement of the inventory of the contents of Ryan’s automobile, Wochner found on the front seat in the driver’s area, a pillow case containing a “hard solid object” which he retrieved and which proved to be an item of drug paraphernalia. Upon looking at the remaining contents of the pillow case, he discovered five plastic bags containing what later proved to be cocaine. At that point, officers terminated. the inventory and secured a warrant before resuming the search.

In Colorado v. Bertine, 479 U.S. 367 (1986), the United States Supreme Court recognized inventory searches as a well-defined exception to the warrant requirements of the Fourth Amendment and held that such an inventory may be “reasonable” under the Fourth Amendment even though conducted without a warrant. In so holding, the Court noted that the policies behind the warrant requirement and the related concept of probable cause are not implicated in the inventory search, which serves the strong governmental interest in protecting an owner’s property while it is in police custody, insuring against claims of lost, stolen, or vandalized property, in guarding the police from danger.

It was shown in the court below that automobile inventories were part of a regular procedure employed by the Bull Shoals Police Department and the Marion County Sheriff’s Department on impounding a vehicle. This standard procedure establishes the non-pretexual character of the search.

The appellant contends that the fact that a detailed inventory of the contents of the automobile was never completed indicates that the search was commenced on the pretext of an inventory but was in fact a warrantless search in violation of the accused’s constitutional rights. We do not agree. The established policy was in effect and, upon the first discovery of contraband, officers properly terminated the inventory search and subsequently commenced a search pursuant to a valid warrant. The record in the case reveals that a “Vehicle Impoundment Record” was completed and filed. Under the section “Inventory and Vehicle: When Impounded” is appears that the inventory was terminated due to “Need to Obtain Search Warrant.” Further, numerous personal items were left in the vehicle, including camping gear. The record also reveals that the return made on the search warrant includes a detailed listing of items found in the car.

Finally, the appellant contends that the inventory search was invalid because it was not conducted pursuant to any written guidelines established by the Bull Shoals Police Department or the Marion County Sheriffs Office. For authority, the appellant cites Florida v. Wells, 100 S.Ct. 1362 (1990), which had not been decided at the time of Ryan’s suppression hearing. In any event, the appellant made no objection at the trial level to an absence of written guidelines and is precluded from raising that issue for the first time on appeal. See Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

The standard of review by this court of a denial of a motion to suppress evidence is well established. In reviewing the trial court’s denial of the motion to suppress, this court makes an independent examination based on the totality of the circumstances and reverses the trial court only if the decision was clearly against a preponderance of the evidence. Campbell v. State, 294 Ark. 639, 746 S.W.2d 37 (1988); McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984). On appeal, this court considers the facts in the light most favorable to the appellee. Holden v. State, 290 Ark. 458, 721 S.W.2d 614 (1986).

Finding no error, we affirm.

Price, J., dissents.

Dale Price, Justice,

dissenting. My disagreement with the majority concerns the admission of the appellant’s statement which was given to law enforcement officers four days after his arrest and six days prior to his arraignment. It is my view the trial court erred in denying the appellant’s motion to suppress, and I would reverse and remand for a new trial in which the statement is inadmissible.

Pursuant to the Pennsylvania three-part test adopted by this court in Duncan v. State, 291 Ark. 521, 726 S.W.2d 653 (1987), the majority holds the appellant’s incriminating statements were not reasonably related to the ten-day delay. This court concedes the delay was “unreasonable and unnecessary,” and acknowledges there was no showing why the appellant could not have been arraigned prior to giving his statement to officers later Tuesday morning.

The appellant was arrested around noon on Friday. A search warrant was subsequently obtained from Judge Bearden, and his vehicle was searched at approximately 4:15 p.m. Upon being advised of the greater charges filed against him, the appellant indicated he had no statement to make. The evidence was controverted as to who initiated a meeting with federal officers. The appellant testified Officer Carr approached him in this regard Saturday morning. Officer Carr could not recall when the conversation with the appellant took place but stated “I did advise you [appellant] that maybe the federáis would be interested in you. I sure did.” Chief Wochner testified he was informed on Monday by another officer that the appellant wanted to talk to him about meeting with federal agents and possibly working out some kind of deal.

Arraignments on criminal charges were conducted on Tuesdays, and there is absolutely no showing on the state’s part as to why the appellant could not have been arraigned prior to his Tuesday meeting with federal officers. It is conjecture on the majority’s part to assume the appellant would not have acted differently if his arraignment had taken place prior to this meeting.

The purpose of an arraignment without necessary delay is to notify the accused of the charge or charges placed against him and to see that he has an attorney to represent him. To affirm a ten-day delay before arraignment, as in this case, is an open invitation for an accused to be held as long as desired prior to arraignment in the hope he will, for whatever reason, make some incriminating statement without benefit of counsel.

Rather than place the burden on the accused to prove the statement given was a result of the unreasonable delay, I would instead place the burden on the state to show why the delay was necessary. The state is in a better position to explain why the appellant was held for ten days without arraignment in this instance than the appellant is to prove his statement was the result of that delay.

In Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981), the defendant was arrested on October 12, charged on October 14, appointed counsel on October 29, and taken before a judicial officer on November 13. During this period he gave an incustodial statement. This court held the trial court properly refused to dismiss the charges inasmuch as dismissal was not the appropriate remedy. The court quoted A.R.Cr.P. Rule 8.1 and then stated:

We adhere to our standard that this rule is mandatory, not discretionary, but that violation of it does not dictate a dismissal of the charges. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). This standard, like those of searches and seizures, represents a necessary accommodation between the individual’s right to liberty and the State’s duty to control crime. On the limited issue of dismissal, the scales are tipped in favor of the State for when the defendant is found guilty he has suffered no prejudice as a result of being in jail. The remedy is to suppress the in-custodial statement, as was done. . . .

In this case the charges should not be dismissed, but the statement should have been suppressed.


author: Otis H. Turner, Justice.

text:
    Patsi STALTER v. Sandy AKERS
    90-131
    798 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      Laser, Sharp, Mayes, Wilson, Bujford & Watts, P.A., by: Richard N. Watts and Brian Allen Brown, for appellant.

      Gary Eubanks & Associates, by: Darryl E. Baker and James Gerard Schulze, for appellee.
   Otis H. Turner, Justice.

The appellant, Patsi Stalter, owned a house that she leased or rented to Jason and Laura Howard. The appellee, Sandy Akers, was the Howards’ neighbor and a frequent visitor to their home.

On the evening of June 15,1988, Jason Howard asked Mrs. Akers to come over to the Howards’ residence to talk to his wife, Laura. The purpose of the visit was to discuss a shocking and dangerous “practical joke” played by the Howards on a young boy, who was an overnight guest in the Akers’s home. Upon being told the details of the “joke,” the appellee became angry, picked up the Howards’ two small children, and started to return home. When she reached the bottom step of the Howards’ porch, a concrete block placed as a temporary substitute for a broken step gave way, and she fell, breaking her leg.

The appellee was aware that the bottom step leading to the Howards’ porch was broken. Mrs. Akers testified that she had overhead a conversation in which the appellant had told her tenant, Laura Howard, that she would repair the broken step.

The appellee sued the Howards and their landlord, the appellant, to recover for her injuries and expenses. The trial court entered a default judgment against the Howards, and the jury returned a verdict of $16,000 for Mrs. Akers against the appellant/landlord.

On appeal, the appellant argues three issues for reversal: first, the court erred in submitting the issues to the jury and, after judgment, in failing to set the judgment aside because the appellee was a licensee and because the hazard was open and obvious and no duty was thus owed to the appellee; second, the court erred in submitting AMI 1104A to the jury because the appellant’s gratuitous promise did not create a legal duty owed to the appellee; third, the court erred in refusing to grant a directed verdict because there was no evidence of negligence by the appellant.

We perceive the single real issue in this case to be whether, in the absence of a contract to maintain, an owner of property leased to another is subject to any liability for injuries occurring to third persons as a result of defective conditions of the property. If liability does attach, the question becomes whether the status of the injured third party (invitee, licensee, or trespasser) is relevant to a determination of the duty owed by the owner to the third party.

We first dispose of the question concerning the “legal status” of the appellee upon the premises. That status was immaterial in determining the rights and obligations between these parties so long as the appellee was on the premises with the consent of the lessee. There is no doubt that, under the facts of this case, the injured appellee was on the property with the consent of Mrs. Howard, the lessee.

Whether the appellant/landlord may incur liability to the third party — the appellee — presents a more complex problem. Here, the record indicates there was evidence that the appellee overheard a conversation between the appellant and her tenant in which the appellant promised to repair the defective steps. The appellant argues that, in the absence of facts establishing a a legal obligation to fulfill the promise to repair, the promise is gratuitous and insufficient to create a duty owed to persons on the demised property with the consent of the lessee.

We have found no Arkansas case, and the parties cite none, where we have expressly held that a contract to repair or maintain the premises is necessary to impose liability on the landlord for injury to a third person on the leased premises. However, we have so indicated in a number of instances. In Terry v. Cities of Helena and West Helena, 256 Ark. 226, 506 S.W.2d 573 (1974), the lessee requested the lessor to repair the leased buildings. This court looked to the lease agreement which made no mention of the lessor’s duty to repair, and stated: “It is well settled in Arkansas that unless a landlord agrees with his tenant to repair leased premises, he cannot, in the absence of statute, be compelled to do so or be held liable for repairs.” 256 Ark. at 236, 506 S.W.2d at 578.

In a case involving whether or not a sublessee was entitled to summary judgment for the negligence of a sublessor resulting in personal injury because of failure to repair the leased premises, the question turned upon whether the terms of an oral sublease imposed a duty on the sublessor to repair. We there held that the sublessee’s affidavit, stating that the sublessor agreed to make repairs and told the sublessee to call him if any repairs were needed, was sufficient to raise a question of fact regarding the duty, and it was error for the trial court to grant summary judgment. Hurst v. Feild, 281 Ark. 106, 661 S.W.2d 393 (1983). In Majewski v. Cantrell, 293 Ark. 360, 737 S.W.2d 649 (1987), the appellant argued that at the time of the injury, no lease agreement existed between the lessor and the lessee. There was evidence of a previous lease, long expired, requiring the appellant to repair. The lessor admitted having sent a worker out to repair the roof on numerous occasions. We held there was an agreement to repair.

Section 357 of the Restatement, Second, Torts, provides, in pertinent part:

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract.

The courts have held that a gratuitous promise to repair, unsupported by consideration, is not sufficient to impose upon the landlord a duty to carry out the promise. J. Page, The Law of Premises Liability, Section 9.9. Restatement, Second, Torts § 357 includes the comment that “[T]he rule has no application where there is no contractual obligation, but merely a gratuitous promise to repair, made after the lessee has entered into possession.”

We believe the better rule to be that the injured third party must establish a landlord’s contractual duty to repair a defect in the premises before he may recover for an injury suffered upon leased property over which the landlord has relinquished possession and control to a tenant.

Under this analysis, the giving of Arkansas Model Instruction No. 1104A was inappropriate without amendment.

Reversed and remanded.

Glaze, J., not participating.


author: Dale Price, Justice.

text:
    Carl DRONE v. STATE of Arkansas
    90-132
    798 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      William R. Simpson, Jr., Public Defender, by: Ted

      Thomas, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The issue on appeal is whether the probate court lost jurisdiction to commit the appellant, Carl Drone, to the Arkansas State Hospital due to the failure of the Arkansas Department of Human Services (ADHS) to file a psychiatric or psychological report within thirty days following the entry of the appellant’s order of acquittal. We cannot address the argument on its merits because a deficiency in the record precludes our review. Accordingly, we affirm the probate court’s order of commitment.

Ark. Code Ann. § 5-2-314 (Supp. 1989) provides in part:

(a)(1) When a defendant is acquitted on the ground of mental disease or defect, the circuit court shall determine whether the offense involved bodily injury to another person or serious damage to the property of another or involved a substantial risk of such injury or damage. The circuit court shall then order the defendant committed to the custody of the Director of the Department of Human Services for an examination by a psychiatrist or a licensed psychologist.
(2) The Director of the Department of Human Services shall file the psychiatric or psychological report with a probate court having jurisdiction within thirty (30) days following entry of order of acquittal. A hearing shall be conducted by the probate court or by a referee or the magistrate as provided in subsections (c) and (d) of this section, and shall take place not later than ten (10) days following the filing of the report with the probate court.

The record reflects the appellant moved to dismiss the petition at his commitment hearing on the basis he was acquitted on December 1,1989, and an ADHS report was not filed within thirty days. The probate court responded as follows:

The Court: All right. I’ll tell you what I’m going to do. At this point — lam well aware of other legislation which is drafted in the same way, and there’s no — there is no remedy set out for failure to comply with the Act. What I’m going to do is take that issue under advisement, and what I’d like for you to do is give me some further information. And if it appears that dismissal is the proper action for the Court to take, then certainly I will do so at some point. But at this time I am going to ask that you go forward with your proof.

The record contains the report of ADHS dated February 21, 1990, proceedings of the commitment hearing conducted on February 26,1990, and an order of commitment filed March 1, 1990. It does not, however, contain the circuit court’s order of acquittal. We cannot address the appellant’s argument on its merits without a record of the order of acquittal. It is well settled that an appellant must bring up a record sufficient to show the trial court was wrong. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988).

Even if we were not precluded by this omission, the appellant’s argument has no merit inasmuch as he failed to obtain a ruling on his motion to dismiss. Objections and questions left unresolved are waived and may not be relied upon on appeal. McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989).

Affirmed.


text:
    Charles GOODE v. STATE of Arkansas
    CR 90-180
    798 S.W.2d 430
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      John Wesley Hall, Jr., P.C., by: Craig Lambert, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The appellant was convicted of DWI, second offense. He was sentenced to seven days in jail, fined $400, and had his driver’s license suspended for one year. On appeal, he claims the trial court erred in denying his motion to dismiss the charges because the arresting officer was not certified and the required background check of the officer was not conducted in compliance with regulations. The appellant also contends the trial court erred in denying his motion to suppress the results of a breathalyzer test. We find no merit to these arguments and affirm.

The appellant was stopped in his vehicle by Pulaski County Deputy Sheriff Keith Hodges on December 14, 1988, and was subsequently arrested for DWI. At the time Deputy Hodges was hired by the Pulaski County Sheriff’s office in 1982, his file did not disclose the results of a search of the federal fingerprint files. That information was obtained by the sheriff’s office in 1984. Regulation 1002 of the Commission on Law Enforcement Standards and Training provides in pertinent part:

(2) Every officer employed by a law enforcement unit shall:
(c) Be fingerprinted and a search made of state and national fingerprint files to disclose any criminal record.
(4) The minimum standards for employment or appointment must be completed before employment eligibility is established. Employment eligibility should depend upon the results and recommendations received by the investigator and examiners.

Ark. Code Ann. § 12-9-108(a) (1987),theapplicablestatute in this instance, states:

A person who does not meet the standards and qualifications set forth in this subchapter or any made by the Arkansas Commission on Law Enforcement Standards and Training shall not take any official action as a police officer, and any action taken shall be held as invalid.

Appellant’s reliance upon our holdings in Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989), and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989), is misplaced. There was no proof of subsequent compliance by the officers prior to the arrest in those decisions and, accordingly, their holdings are distinguishable.

The appellant asks us to interpret Ark. Code Ann. § 12-9-108(a) as invalidating any action taken by a police officer if the officer was not hired in compliance with the minimum standards set by the commission. We decline to do so. To adopt this interpretation would place police departments in the impossible position of never being able to rectify an erroneous hiring practice from previous years. Any officer not initially hired in compliance with the Act could never become qualified.

The trial court found there was compliance with the commission’s standards, and we agree. While Deputy Hodges had not met the standards when he was hired in 1982 because the results of the federal fingerprint search were not placed in his file as required by Regulation 1002(2) (c)(4), that deficiency was corrected by 1984 and from that point on, Deputy Hodges was in compliance with the Act. In view of our holding on this assignment of error, we need not address the retroactive application of Act 44 of the Third Extraordinary Session of 1989.

It is also contended by the appellant that a background check by a criminal investigator and request for information to out-of-state law enforcement agencies where Deputy Hodges had previously resided was not conducted in compliance with Regulation 1002(2)(e) and Specification S-3 of the Commission on Law Enforcement Standards and Training. Regulation 1002(2) (e) provides:

(2) Every officer employed by a law enforcement unit shall:
(e) Be of good character as determined by a thorough background investigation as prescribed in Specification S-3, The Background Investigation.

Specification S-3 states in part that:

(e) The background investigation should be conducted by an experienced investigator.
(5) If the applicant lives, or has lived, in a distant community, a letter should be sent to the local law enforcement agency requesting that an investigation be conducted in that locality and a copy of the results placed in the personnel file.

Dorothy McFadden, personnel officer with the Pulaski County Sheriffs Department, testified at the hearing on the appellant’s motion to dismiss that she reviewed the file of Deputy Hodges and it contained information that he had worked in several locations prior to his employment. The file reflected that Carol Kimble, a deputy sheriff, had conducted the background check on Hodges. Deputy Kimble had been employed by the sheriffs office two years at the time she conducted the investigation of Hodges. She sent letters to some of Hodges’ former employers and received responses to two of those letters. There was nothing in the file indicating that Kimble had requested an investigation from out-of-state law enforcement agencies where Hodges had previously resided.

Appellant contends that since Kimble was not an “experienced investigator” and she did not request an investigation by law enforcement agencies where Hodges had previously resided, the requirements of Regulation 1002(2) (e) and Specification S-3 of the Regulations were not met. We do not agree.

It is evident from the testimony of Dorothy McFadden that a background investigation of Hodges was conducted. Kimble qualified as an “experienced investigator” within the meaning of Specification S-3 and the provision that letters should be sent to local law enforcement agencies where the officer previously resided requesting an investigation is directory only and not mandatory. Accordingly, the trial court was correct in denying the appellant’s motion to dismiss on this basis.

Finally, the appellant argues the trial court erred in allowing the results of a breathalyzer test into evidence. He contends this was improper because the state failed to show he had been observed for an uninterrupted period of twenty minutes prior to the administration of the breathalyzer test.

The chemical analyses of a person’s blood, breath, urine or other bodily substance must be made by a method approved by the State Board of Health. Ark. Code Ann. § 5-65-204(b) (1987). Part D, § 3.40 of the Arkansas Regulations for Blood Alcohol Testing (2d rev. 1984) provides:

A breath sample to be analyzed at a certified installation shall be collected only by certified personnel. The sample shall be collected only after the subject has been under observation for an uninterrupted period of no less than 20 minutes immediately prior to collection ....

Deputy Hodges testified he stopped the appellant after observing appellant’s vehicle weaving and the left wheels riding on the center line. He noticed the appellant had a strong odor of intoxicants about his person and walked unsteadily after he was asked to get out of his vehicle. A series of field sobriety tests were administered and the appellant was arrested at 11:27 p.m., read his Miranda rights, handcuffed and placed in the back seat of the patrol car. Deputy Hodges left the appellant for two to three minutes to inventory the vehicle. The officer then waited in his patrol car with the appellant for the wrecker to arrive before departing for the sheriff’s office approximately four or five miles away. It took about seven to ten minutes to reach the sheriff’s office. Hodges testified that he observed the appellant in the rear view mirror during the trip. He noted the appellant did not burp, regurgitate, or put anything in his mouth prior to the breathalyzer test, which was administered at 12:16 a.m. Hodges stated at trial:

[Prosecutor]: You drove the defendant to the police department. Was he under your observation for 20 minutes?
[Deputy Hodges]: Yes, he was. He was under my observation during the entire traffic time. The time I believe that I used as an observation time when he was actually under control was when he was handcuffed and in my car at the time I read his Miranda rights to him.
[Prosecutor]: Was this a period of at [least] 20 minutes?
[Deputy Hodges]: Yes, it was. It was over 20 minutes.

We have repeatedly held that only substantial compliance with health department regulations is required. Tharp v. State, 294 Ark. 615, 745 S.W.2d 612 (1988). The officer is not required to stare fixedly at the arrested person for the entire time in order to comply with the 20-minute regulation. Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985).

Officer Hodges’ testimony that he observed the appellant for over 20 minutes prior to the breathalyzer test made a prima facie showing of substantial compliance with the regulation. The trial court correctly held that admission of the test was proper.

Affirmed.


author: E. Charles Eichenbaum, Special Justice.

text:
    Donna WALKER v. Bert HYDE, et al.
    90-31
    798 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered November 12, 1990

      John M. Belew; Murphy, Post, Thompson, Arnold & Skinner, by: Jerry Post', and Paul Post, for appellant.

      Laws, Swain & Murdoch, P.A., by: Ike Allen Laws, Jr., and Allen Laws, for appellees Bert Hyde and David Hyde.

      Friday, Eldredge & Clark, by: Michael G. Thompson and Guy Alton Wade, for appellees Charles Blanchard, Robert Hayes Williams, and First National Bank of Russellville, Arkansas.
   E. Charles Eichenbaum, Special Justice.

The plaintiff Donna Walker was a part owner in a vending company, Valley Vending, Inc., begun in 1984, which had, for a brief period, the concession for vending machines at Arkansas Nuclear One (“ANO”). Prior to March, 1984, she had been an employee of C M Vending, which had previously held the ANO contract, and before that an employee of Hyde Vending Company, owned by the defendant, Bert Hyde.

The defendant Bert Hyde had been the owner of Hyde Vending Company, who sold that company to C M Vending, and, from the sale date in 1973 through 1984, was contractually obligated not to compete with C M Vending. The defendant David Hyde is the son of Bert Hyde and was a part owner of Valley Vending, Inc., with the plaintiff. The defendant Randy Talkington was also a part owner of Valley Vending, Inc., and an officer of the First National Bank of Russellville. The defendants Robert Hayes Williams, Charles Blanchard, and John Doe were all employees, officers, or directors of the First National Bank of Russellville. Robert Hayes Williams was also an attorney. The defendant First National Bank of Russellville provided financing to Valley Vending, Inc. These loans were guaranteed by the appellant and other individual appellees.

The C M Vending Company, employer of Donna Walker, had a contract to install, maintain, and supply vending machines at Arkansas Nuclear One, Russellville, Arkansas. She believed, and it appears was encouraged to believe by employees at Nuclear One, that she had an opportunity to bid successfully on the renewal of the aforementioned contract. Prior to June 20, 1984, Ms. Walker formed her own corporation, Valley Vending, Inc.

Prior to the bidding, she approached the First National Bank of Russellville, Arkansas, for a loan to finance the proposed operation. In testimony, disputed as to detail, it appears that the bank was concerned with such application, noting to her an absence of managerial experience and financial background. In testimony, largely undisputed, the bank encourage her to acquire such missing elements for the purposes of enabling approval of the loan.

During this period, and with the encouragement of the bank’s employees, she consulted with her former employer, Bert Hyde. On the 14th day of June, 1984, she was told by Bert Hyde, one of the defendants, that she should take in his son as a shareholder for the enterprise. At the time of Bert Hyde’s insistence and persuasion of Donna Walker with respect to sharing the stock of her corporation, Ms. Walker admitted in depositions that she was represented by counsel and she had knowledge of the existence of some contract between Hyde and the vending company, although she professed an absence of knowledge of details. Bert Hyde’s desire to remain aloof from the transaction was more verbal than actual, and the record reflects that his role was not entirely passive. At the time he was a party to a non-competition agreement with C M Vending. The vending company by whom Donna Walker had been employed, and which was replaced in her successful bid, promptly sued all of the parties involved in the new corporation and Bert Hyde.

The basis for the vending company suit against Hyde and others was the non-competition agreement entered into at the time Hyde sole his company to C M Vending. The trial court had found the agreement to be in force and effect and this court affirmed Hyde v. CM Vending Company, Inc., 288 Ark. 218, 703 S.W.2d 862 (1986).

When this suit was successful, Donna Walker’s corporation lost the contract. Financial reverses ensued; it became insolvent and its assets were sold in partial satisfaction of the bank debt.

The complaint in this matter was filed by Donna Walker against Bert Hyde, his son David Hyde, the First National Bank, and Robert Hayes Williams, Charles Blanchard, Randy Talking-ton and John Doe, officers of the First National Bank on August 28, 1987.

The original complaint, not a model of brevity, consisted of 55 allegations on its Count One, being a prayer against all of the defendants, and 17 allegations as a separate ground for action against the First National Bank of Russellville.

The factual allegations summarize that the defendants acted in concert by a course of conduct that resulted in the plaintiff giving substantial stock ownership in her new corporation to David Hyde (and ultimately to David Hyde and Randy Talkington). The gravamen of her complaint is that these additional stockholders exposed the new corporation to the risk that ultimately became the thread from which the cloth unraveled, the risk that the new corporation and its principals would be found in violation of Bert Hyde’s contractual covenant not to compete. This, the appellant now claims is a risk that the appellees fully understood, that she did not fully understand, and that the defendants’ failure to disclose the same to her should be the basis for compensation in this action.

Damages were sought for deprivation of control and ownership of her enterprise, loss of good will of the business enterprise, future gross receipts, future net profits (then unknown), relief from indebtedness, damages for lack of good faith and fair dealing and breach of fiduciary duty (as a co-venturer) by the bank.

The case comes to us on appeal from the Circuit Court of Pope County as a result of the granting by said court of a motion for summary judgment. At issue is the determination of whether the complaint, in the light of depositions and the record submitted, justifies a reversal of that determination.

We have reviewed the original complaint, and all of its particulars, for the purpose of determining whether alleged wrongs, so stated, and the record referred to, justify a reversal.

We find it does not.

The arguments on appeal — based on the record — involve, necessarily, whether damages are sought by a person with standing, and whether or not, if standing exists, appellant has stated facts upon which relief can be granted.

The court below was properly concerned with the issue of standing. If the injuries alleged to have been suffered by the plaintiff below were those for which relief should be granted to the corporation, and not a shareholder, appellees argue that derivative action was the only proper route for relief. Upon review of the complaint, it so appears that much of the relief sought would be subject to such conclusion. Specifically, her request for damages from the loss of the ANO concession contract, the goodwill associated with the concession contract, and the gross receipts and profits generated therefrom are corporate. Thus any action to recover this loss is derivative in nature and subject to A.R.C.P. 23.1. Morgan v. Robertson, 271 Ark. 461, 609 S.W.2d 662 (1980); Hunter v. Old Ben Coal Company, 844 F.2d 428 (7th Cir. 1989).

This court does not treat lightly the obligation of ascertaining that a summary judgment is appropriate. See Childs v. Berry, 268 Ark. 970, 597 S.W.2d 134 (1980). In considering a motion for summary judgment, a judge may consider pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, to determine whether there is a genuine issue as to any material fact, and whether the moving party is entitled to summary judgment. Hallmark Cards, Inc. v. Peevy, 293 Ark. 594, 739 S.W.2d 691 (1987); McCaleb v. National Bank of Commerce, 25 Ark. App. 53, 752 S.W.2d 54 (1988).

In its quest for an appropriate answer to our question, the court here must turn to the Rules of Civil Procedure, including A.R.C.P. 12(b)(6), i.e., failure to state facts upon which relief can be granted, and as the latter bears relationship to A.R.C.P. 8, defining the necessity for the statement of claims to which the pleader considers herself entitled to relief.

In the complaint, the allegations of individual loss from taking of her stock are not followed by a recital in prayer for relief of any specifics of loss therefrom; that is, no ascertainable claim for damages from such taking of “control and ownership” is discernible.

We must conclude that there is, necessarily, a synergistic relationship between the pleading of fact and the relief sought. See A.R.C.P. 8. For an alleged issue of fact to be decided, there must be an appropriate prayer for relief; for an appropriate prayer for relief, there must be a genuine issue of fact extant. A motion for summary judgment is appropriate when no issue of fact, properly pleaded, remains to be decided, A.R.C.P. 56. See Joey Brown Interest v. Merchants Nat’l Bank, 284 Ark. 418, 683 S.W.2d 601 (1984), for interplay between A.R.C.P. 12(b)(6) and A.R.C.P. 56. There is no genuine remaining issue of fact with respect to the claims the appellant had no standing to bring. Nor is there any issue remaining as to the personal claims she alleged but for which she sought no relief. In this case, after the review of the pleading, in the light of the depositions taken, we find no genuine issue of material fact remains.

Affirmed.

Special Justice Eric W. Bishop joins in this opinion.

Hays and Turner, JJ., not participating.