author: John I. Purtle, Justice.

text:
    TRANSPORT COMPANY, INC., Frank Thompson Transport, Inc., and Miller Transporters, Inc. v. CHAMPION TRANSPORT, INC.
    88-285
    766 S.W.2d 16
    Supreme Court of Arkansas
    Opinion delivered March 6, 1989

      Harper, Young, Smith & Maurras, and Kemp, Duckett & Hopkins, for appellant.

      Douglas, Hewett & Shock, for appellee.
   John I. Purtle, Justice.

This case involves an appeal from a decision of the Pulaski County Circuit Court affirming an order of the Arkansas Transportation Safety Agency, Transportation Regulatory Board. The Board’s order granted the appellee a permit to operate as a contract carrier for Fina Oil and Chemical Company in intrastate commerce. The appellants argue that the Board and the circuit court erred in holding that the appellee, as an applicant for a contract carrier’s permit, had a lesser burden of proof than an applicant for a common carrier’s certificate. We hold that the Board and the circuit court did not err in their rulings.

Appellee Champion Transport, Inc., applied to the Arkansas Transportation Safety Agency, Transportation Regulatory Board, for a permit to operate as a contract carrier to transport crude oil, condensate, and casing-head gas over irregular routes between points in Miller County and the rest of the state, south of Interstate 40. The appellee would be under exclusive contract to Fina Oil and Chemical Company. Appellants Transport Company, Inc., Frank Thompson Transport, Inc., and Miller Transporters, Inc., all intervened and protested the granting of a permit to the appellee. The Board granted the application, and the appellants appealed the matter to the Pulaski County Circuit Court, which affirmed the Board’s decision by order entered September 2, 1988.

At the hearing before the Board, representatives of Fina Oil and Chemical Company testified that the company had an urgent and immediate need for a contract carrier and that the appellee could supply exactly the services required. A witness for Fina stated that in October 1988 the company lost $7,672.50 due to the fact that the appellee was not authorized to transport Fina’s material from the plant to various points throughout the southern part of the state. The oil company also testified that it had tried to use common carriers in the past but had found them to be unsatisfactory primarily because one day service, dedicated equipment, and company-trained drivers were unavailable.

Fina’s representatives further testified that, unless the applications were granted, the company would be forced to sell its crude oil to an independent purchaser because it could not afford the prices demanded by the existing carriers. Moreover, Fina stressed that it needed service available on demand, dedicated equipment, and drivers trained according to the standards of the oil company’s rules and regulations. The required service includes the use of transports with pumps, centrifuges, hydrometers, gauge lines, and other necessary equipment for hauling crude oil. The company also needs drivers who will maintain the strictest confidentiality with respect to customers and price of product.

Thompson Transport, Inc., furnished testimony that it had only one truck currently available to transport crude oil in Miller County but that it did have other equipment on hand. This carrier indicated it could dedicate two pieces of equipment to Fina but acknowledged it could not haul exclusively for the oil company.

Miller Transporters’ testimony was that while it already hauled other products intrastate for Fina every day, it had extra equipment which could be dedicated to Fina. Miller did not have any equipment dedicated exclusively to transporting crude oil.

Representatives of Transport Company, Inc., testified that their company had eleven trailers and thirteen to fifteen drivers available. They testified that these drivers and equipment had been utilized to transport crude in the past but were presently idle because some fields were closed. This carrier asserted that the equipment and service it offered met the requirements of Fina as stated at the hearing on the appellee’s application. Transport’s posted rate is forty-four and one-half cents per barrel, Thompson’s fifty-three and eight-tenths cents per barrel, and Miller’s seventy-one cents per barrel. The Board specifically found that Transport Company, Inc., as a common carrier, could not haul exclusively for Fina but could dedicate some equipment and drivers.

The question presented to the court is whether the Board and the circuit court erred in finding that a lesser burden of proof is required for approval of a contract carrier’s application for a permit than a common carrier’s application. Arkansas Code Annotated § 23-2-425(b)(3) (1987), providing for appellate review, states in part: “[A]ny finding of fact by the circuit court shall not be binding on the Supreme Court, and the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper, and equitable.”

In the case of Batesville Truck Lines v. Arkansas Freightways, Inc., 286 Ark. 116, 689 S.W.2d 553 (1985), we held that in appeals of decisions of the Arkansas Transportation Commission (now Transportation Regulatory Board), we were not bound by determinations of fact made by the circuit court. There we stated: “In a case such as this, the factual question is whether there is a preponderance of evidence supporting a finding that any one of the criteria for granting a certificate in areas already being served by trucking companies was shown to have been satisfied.” More recently, in Jones Rigging and Heavy Hauling, Inc. v. Howard Trucking, Inc., 298 Ark. 33, 764 S.W.2d 450 (1989), we stated that “we will not disturb the findings of the commission [Board] unless they are against the preponderance of the evidence.”

The Board found that the appellee had met its burden of proof as required by the Arkansas Motor Carrier Act and issued a certificate. In the present case, the Board relied on a decision by the Interstate Commerce Commission, James A. Sproul, Contract Carrier Application, 1 M.C.C. 465 (1937), and held that the requirement of Ark. Code Ann. § 23-12-224(a) (1987) that a proposed contract carrier operation “will promote the public interest” imposes a lesser burden on contract carriers than that imposed on common carriers under Ark. Code Ann. § 23-13-220(a)(1) (1987). This latter section of the code provides that the Board must find that the issuance of a common carrier’s certificate is “required by the present or future public convenience or necessity.” Neither the phrase “promote the public interest” nor the phrase “public convenience or necessity” are defined in the code provisions.

This court has many times discussed the matter of “public convenience or necessity” and, in one case, Santee v. Brady, 209 Ark. 224, 189 S.W.2d 907 (1945), quoted the rule as follows:

The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.

A “common carrier” is defined in Ark. Code Ann. § 23-13-203 (7) (1987) as:

[A]ny person who or which undertakes, whether directly or indirectly, or by lease of equipment or franchise rights, or any other arrangement, to transport passengers or property or any classes of property for the general public by motor vehicle for compensation whether over regular or irregular routes ....

On the other hand, a “contract carrier” is defined in Ark. Code Ann. § 23-13-203(8) (1987) as:

[A]ny person not a common carrier included under subdivision (7) who or which, under individual contracts or agreements, and whether directly or indirectly or by lease of equipment or franchise rights or any other arrangements, transports passengers or property by motor vehicle for compensation ....

In Craig, Contract Carrier Application, 31 M.C.C. 705 (1941), the function of a contract or private carrier was described as “nothing more than the devotion of all of a carrier’s efforts to the service of a particular shipper, or, at most, a very limited number of shippers, under a continuing arrangement which makes the carrier virtually a part of the shipper’s organization.”

The relevant provisions of the Arkansas code are obviously patterned after the federal statutes, the Interstate Motor Carriers Act of 1935, as amended, 49 U.S.C. § 301 et seq., as the Arkansas legislation and the federal legislation are almost identical. Both the federal and state regulatory agencies governing common carriers and private carriers make distinctions between the two classes of carriers. The latest amendments in both statutory schemes continue to carry similar definitions and standards of proof.

The Arkansas code provision governing the issuance of permits for contract carriers, Ark. Code Ann. § 23-13-224 (1987), states that:

[A] permit for a contract carrier by motor vehicle shall be issued to any qualified applicant if it is found that the applicant is fit, willing, and able to properly perform the service of a contract carrier by motor vehicle and to conform to the provisions of this subchapter and the lawful requirements, rules, and regulations of the Arkansas Transportation Commission, and the proposed operation . . . will promote the public interest and the policy declared in § 23-13-202; otherwise the application shall be denied.

The code also enumerates the considerations which shall be used by the Board in granting permits. The considerations are: (1) the financial condition of the applicant and his sense of responsibility towards the public; (2) the transportation service already being maintained by any railroad, street railway, or motor carrier; and (3) the likelihood of the proposed service being permanent and continuous throughout twelve months of the year and the effect which the proposed transportation service may have upon existing services. The Board is also authorized to consider “any other matters” tending to show the necessity or need for granting the application.

Traditionally, the criteria for establishing the need for common carriers have been broader in terms and scope than the requirements for granting permits for contract carriers. Therefore, the burden of establishing the need for the restricted authority sought by contract carriers has consistently been less than that required for the broader authority of a common carrier. The common carrier serves the public at large while the contract carrier is restricted to serving the contracting parties.

Speaking for the Court in Interstate Commerce Commission v. J-T Transport Company, Inc., 368 U.S. 81 (1961), Justice Douglas discussed the presumption that “the services of existing carriers will be adversely affected by a loss of ‘potential’ traffic” and further stated that the Commission, by reading this phrase into the law, in essence attempted to amend the act by insertion of a “provision that the Commission sought unsuccessfully to have incorporated into the Act.” The opinion also held that “the adequacy of existing facilities or the willingness or ability of existing carriers to render the new service is not determinative. The ‘effect which denying the permit would have upon the applicant and/or its shipper and the changing character of that shipper’s requirements’ have additional relevance.” The opinion went on to state that a contract carrier furnishes services which are designed to meet the distinct needs of his individual customers. It was this need that weighed most heavily against the protests of the existing carriers. The opinion continued:

We see no room for presumption in favor of, or against, any of the five factors on which findings must be made under § 209(b). The effect on protesting carriers of a grant of the application and the effect on shippers of a denial are factors to be weighed in determining on balance where the public interest lies.

The interest of protesting carriers and the effect of an application upon the carriers are to be considered in the balancing process undertaken by the Board when reviewing an application. That interest must not, however, be considered as something to protect the status quo. Rather, the objective is to establish a regime in which additional contract carriers could be approved upon a showing of distinct need on the part of individual shippers. By their nature, the interests of proposed shippers and existing carriers are in conflict.

In the case before us the Board and the circuit court found that the granting of the permit would not diminish the revenue of any of the existing common carriers. Indeed, some of the common carriers are presently hauling for Fina and will continue to haul for it whether or not the permit is granted to the appellee. The Board examined the competing interests with as much diligence as possible. While we need not accept the findings of the Board, we hold that they are not contrary to the preponderance of the evidence. We agree with the opinion in J-T Transport Company, supra, which concluded that the applicant must first demonstrate that the undertaking proposed is specialized and tailored to the shipper’s distinct needs. Thereafter, the protestants may present evidence to show that they have the ability as well as the willingness to meet that specialized need. If the existing carriers discharge that burden, it is then the responsibility of the applicant to demonstrate that it is better equipped to meet the distinct needs of the shipper than the protestants.

We believe that a distinct need by the shipper was shown in this case. Moreover, it was demonstrated that specialized equipment was required for the conduct of its business. Given the testimony in this case, it is questionable whether the existing carriers could, either singularly or in combination, furnish the distinct services required by Fina. After considering the facilities and personnel available, the Board considered the cost to the shipper. Moreover, the need appears to have been clearly established, among other things, by the testimony of the shipper that it would have to discontinue shipping by motor carrier if the application were not approved.

We give due deference to the expertise of the Board. It is the Board, not the courts, that, in the first instance, must bring their expertise to bear on making findings and granting or denying applications. However, this expertise must be supported by evidence of the considerations enumerated in the act. We hold that the decisions by the Board and the circuit court were not against the preponderance of the evidence. Therefore the decision of the circuit court affirming the order of the Transportation Board is affirmed.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Myron WITT and Ralph Heyman as Executor of the Estate of Ruth Witt Margolis v. Brooks ROSEN, Executor of the Estate of Sidney M. Brooks
    88-266
    765 S.W.2d 956
    Supreme Court of Arkansas
    Opinion delivered March 6, 1989

      Pope, Shamburger, Buffalo and Ross, by: Robert D. Ross and Brad A. Cazort, for appellant.

      Rose Law Firm, A Professional Association, by: Vincent Foster, Jr. and James H. Druff, for appellee.
   Steele Hays, Justice.

Mr. Sidney M. Brooks died on May 1, 1985, leaving a 1978 will which bequeathed $20,000 to Ruth Witt Margolis (Paragraph Third) and $15,000 to Myron Witt (Paragraph Fourth), a niece and nephew by marriage. However, a few months before his death Mr. Brooks executed a codicil which reads:

I hereby revoke Paragraphs Third and Fourth of my said will since I have in the interim made inter vivos gifts to Myron Witt and Ruth Witt Margolis.

The estate was closed on September 17,1985, but since Mr. Witt and Mrs. Margolis had received no notice, their motion to set aside the order was granted for the limited purpose of hearing their contest to the validity of the codicil. The probate judge upheld the codicil and Mr. Witt and Mrs. Margolis’s executor have appealed.

Appellants have renewed their argument to the trial court, i.e., that the codicil is void due to a mistake of fact on which it is expressly conditioned. They presented evidence below that from the date of Mr. Brooks’s original will in 1978, until the codicil in 1985, Mr. Witt received no gifts from Mr. Brooks. Mrs. Margolis’s executor reported that she had received $500 from Mr. Brooks for her seventy-fifth birthday.

The appellants moved for summary judgment on the premise that the codicil was based on a mistake of fact, rendering the codicil void. The appellee also moved for summary judgment contending that there was no mistake of fact, or alternatively, if a mistake occurred it was not the type which would void the codicil. The Pulaski County Probate Judge granted summary judgment for the appellee, holding that he could not reasonably conclude that the language of the codicil was a mistake, but even if Mr. Brooks labored under a mistake, it was not the kind of mistake which allows the court to rewrite the will. The appellants appeal from this ruling.

Probate and chancery cases are reviewed de novo on appeal, but the appellate court will not reverse the findings of the probate judge unless clearly erroneous. Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984). Also in an appeal from a motion for summary judgment, all the facts and circumstances are viewed in a light most favorable to the party against whom the motion is directed, the appellant in this case. After considering the arguments on appeal, we affirm the probate court.

Generally, a will may not be set aside for mistake where the testator knew and approved its contents. Moreover, a revocation absolute on its face, the words of which the testator knows and approves, will not be set aside because the reasons which induced it are found to be based upon false assumptions or facts. The policy underlying this general rule is that death has silenced the testator, and determining the intent behind the revocation is too uncertain.

Some courts, however, have created an exception. When the grounds upon which the testator proceeded in revoking a bequest appear in the instrument itself, some courts allow parol evidence to show that the error upon which the revocation was based is the nonexistence of that fact, and refuse to recognize the revocation. Campbell v. French, 3 Ves. Jr. 321 (1797). In Campbell, the testator, a resident of England, made a codicil revoking all legacies and bequests to his sister’s grandchildren, who resided in America. The revocation provision mistakenly declared that the grandchildren were dead, when in fact they were not. Lord Loughborough held that no revocation occurred, “the cause being false.” Since the testator was erroneously advised of the death of the grandchildren, it was reasonable to conclude that but for the misinformation, no revocation would have occurred.

Even so, when the misstatement is one which is peculiarily within the testator’s knowledge or determination, the falsity of such assertion will not prevent the operation of the clause of revocation. Where it appears from the instrument of revocation that the testator intended to determine for himself the existence or nonexistence of the stated grounds of revocation, and was not assuming the truth of information given to him by others, but acted notwithstanding his doubt as to the verity of the reason given, or where he must have known whether or not the ground of revocation was true, the revocation is effective. Hayes’ Executors v. Hayes, 21 N.J. Eq. 265 (1871); Appeal of Mendenhall, 124 Pa. 387, 16 A. 881 (1889); Giddings, Exr. v. Giddings et al., 65 Conn. 149, 32 A. 334 (1894).

The appellants argue that this court should adopt an exception allowing the invalidation of provisions in wills based upon a mistake of fact when the mistake appears in the will itself, and when the disposition that would have been made, had the truth been known, also appears in the will. The appellants rely on cases from Oregon, Estate of LaGrand, 47 Or. App. 81, 613 P.2d 1091 (1980), and Tennessee, Union Planter National Bank v. Inman, 588 S.W.2d 757 (Tenn. Ct. App. 1979), supporting this exception. See also Gifford v. Dyer, 2 R.I. 99, 57 Am. Dec. 708 (1952).

Mr. Brooks revoked paragraphs third and fourth of his original will giving the appellants $15,000 and $20,000 respectively, “since I have in the interim made inter vivos gifts to Myron Witt and Ruth Witt Margolis.” On its face, the codicil is express and unambiguous. However, the appellants argue that it is expressly conditioned on their having received inter vivos gifts. The only evidence presented demonstrating that Mr. Brooks labored under a mistake was testimony from the interested parties. An affidavit from Mr. Myron Witt stated that he did not receive any gifts from Mr. Sidney Brooks after the date of the execution of the will. Furthermore, an affidavit from Mr. Ralph Heyman, executor of the estate of Ruth Witt Margolis, stated that from a review of the available records of Mrs. Margolis, no record of her having received from Mr. Brooks any substantial amount of money or property exists. Yet, the records show that Mrs. Margolis received a $500 cash gift on her seventy-fifth birthday.

Arkansas case law, though not precisely on point, indicates an unwillingness to allow extrinsic evidence to demonstrate mistake and to reform the testamentary instrument. In LeFlore v. Handlin, 153 Ark. 421, 240 S.W. 712 (1922), the testatrix died leaving only $ 100 to her son, Louis LeFlore. The will declared the testatrix’s reason for the small bequest was that he had inherited a larger share of his father’s estate, and that his financial condition was better than his brothers. Testimony showed that the testatrix was mistaken in assuming that Louis received a larger share of his father’s estate. The opinion states:

Where the intention is plainly expressed in the will, that intention must prevail and cannot be defeated by testimony aliunde, showing that the testator had in his mind a different intention from that expressed in his will, or that he would have expressed by his language a different intention if he had not been mistaken in some fact, financial or otherwise. . .

In Lavenue v. Lewis, 185 Ark. 159, 46 S.W.2d 649 (1932), the court refused to invalidate a testamentary instrument when extrinsic evidence showed that the testatrix was mistaken as to the amount of advancements given to her sons. Item six of the will declared:

I have heretofore made advancements out of my property to my sons Bert B. Johnson and to J.O. Johnson, now deceased which advancements have been fully equal to their respective interests in all of my estate, and because of such advancements . <. . neither son are to receive any share of my estate.

Although the will was contested on grounds of undue influence, the court refused to allow extrinsic evidence showing that the testator was mistaken as to the amount of the advancements offered for the purpose of reforming the instrument. By analogy, since the codicil clearly stated Mr. Brooks’ intention to revoke the monetary bequests to the appellants, that express and unambiguous provision should not be defeated by the affidavits of Mr. Witt and Mr. Heyman.

In light of the evidence from interested parties, the chancellor held that there was insufficient evidence of the testator laboring under a mistake. In Driver v. Driver, 187 Ark. 875, 63 S.W.2d 274 (1933), this court held that “the mere making of a codicil gives rise to the inference of a change in intention.” Mr. Brooks could do with his money as he saw fit for whatever reason or for no reason. As the court stated in Lavenue v. Lewis, 185 Ark. 159, 46 S.W.2d 649 (1932), “the testator had the right to disinherit the . . . heirs for the reason assigned in the will, or for any other reason, or without assigning any reason.” Arguably, this conditional language served as an excuse for a disposition clearly intended, but which the testator did not feel inclined to explain. The trial court deemed Mr. Brooks competent to execute a codicil and, therefore, the appellants failed to meet the burden of persuasion that a mistake was indeed committed by the testator.

Even if it could be determined that the testator’s revocation was induced by mistake, this type of mistake does not fall within the exception which allows a court to reform the instrument. If the codicil resulted from a mistake of fact, it was a mistake which was peculiarly within the knowledge of the testator. Whether or not Mr. Brooks gave the appellants inter vivos gifts was certainly knowledge within his ken. Therefore, despite the mistake, the clause of revocation would have been effective.

AFFIRMED.

       Mrs. Margolis survived Mr. Brooks but died prior to the institution of this litigation.


author: Per Curiam.

text:
    Ronald Gene SIMMONS v. STATE of Arkansas
    CR 89-45
    766 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered March 10, 1989

      John C. Harris and Robert E. Irwin, for petitioner.
    No response.
   Per Curiam.

The petitioner, Ronald Gene Simmons, has filed his petition requesting expedited review of his waiver of direct appeal. On February 10, 1989, a Johnson County jury convicted the petitioner of capital murder and sentenced him to death by lethal injection, on March 16,1989, at 7:00 o’clock a.m. Following the trial, the petitioner notified the trial judge of his desire to waive his appeal and after an evidentiary hearing held on March 1,1989, the trial judge found the petitioner was competent to waive his right to a direct appeal. In accordance with this court’s decision in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988), petitioner now submits to this court a transcript of the lower court’s proceedings along with his petition, and requests we review those proceedings in accordance with the rule established in the Franz case. After careful review of those lower court proceedings, we grant petitioner’s request.

In Franz, we held that when a defendant sentenced to death declines to exercise his unqualified right to appeal, we will not automatically acquiesce to his desire. We stated that a defendant sentenced to death will be able to forego an appeal only if he has been judicially determined to have the capacity to understand the choice between life and death and to knowingly and intelligently waive any and all rights to appeal his sentence. This court further held that we must review a lower court’s determination on the issue of the waiver of an appeal in a capital case, and that the state has the burden of bringing the lower court’s record on this issue to this court for review. We added that the record must be lodged at least seven days before execution date. All of these requirements have been met.

In sum, we would note that the trial court considered, and made a part of this proceeding, the same psychological evaluations that were introduced in Franz. Since those evaluations were alluded to in detail there, we need not reiterate those findings in • this opinion. In addition, the trial court added to the record before us a forensic evaluation which was filed in a proceeding before the United States District Court, Eastern District of Arkansas. The federal court proceeding concerned the issue of whether Mr. Simmons was presently competent to waive habeas corpus relief. From our review of this recent forensic evaluation, we find nothing that diminishes in any way the earlier psychological evaluation submitted in the state proceedings.

The trial judge and petitioner’s counsel performed an exceptional job in examining and exploring the petitioner’s capacity to understand the choice between life and death and his ability to know and to intelligently waive any and all rights he might have in an appeal of his sentence. In addition, petitioner’s counsel thoroughly discussed seven possible points that could be argued for reversal on appeal, and petitioner responded by stating he understood those points and that he rejected all encouragement and suggestions to appeal. Petitioner further acknowledged that the execution date was set for March 16, 1989, and that he had thirty days in which to appeal his conviction judgment.

After a careful review of the record and exhibits, we affirm the trial court’s decision that the petitioner has knowingly and intelligently waived his right to appeal. Accordingly, we direct that this court’s mandate be issued at the time this opinion is handed down.

Hays, J., dissents for the reasons stated in Franz v. State, 296 Ark. 181, 754 S.W.2d 839 (1988).


author: Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice. Tom Glaze, Justice, concurring.

text:
    DELTA SCHOOL OF COMMERCE, INC., d/b/a Delta Career College, and Steve McCray v. Earlene WOOD
    88-276
    766 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989
    [Supplemental Opinion on Denial of Rehearing May 1, 1989.]

      Rose Law Firm, A Professional Association, by: Tim Boe and Jess Askew III, for appellants.

      Everett O. Martindale, for appellee.

      Glaze, J., concurs.

   Jack Holt, Jr., Chief Justice.

Appellee Earlene Wood (Wood) filed suit against appellants Delta School of Commerce, Inc. (Delta), and Steve McCray (McCray), alleging that they fraudulently induced her to enter a course in nursing by making false representations that the course would lead her to a position of employment similar to that of a Licensed Practical Nurse. Delta and McCray denied making any false statements or fraudulently inducing Wood to enter a course of study. The jury found in favor of Wood and assessed compensatory damages of $3,064.00 and punitive damages of $50,000.00 against Delta and McCray. The trial court entered judgment accordingly. From this order, Delta and McCray appeal. We find no error and affirm.

Wood testified that in May or June of 1986, she read a newspaper article concerning a course of study at Delta leading to a diploma as a nursing assistant. Shortly thereafter, she made an appointment to talk with McCray, president of Delta, concerning the program. During their meeting, she asked him if a nursing assistant was the same thing as a nurse’s aide. McCray replied that it was not. He also told her that “they are phasing out the LPNs” and that “she would not get rich as a nursing assistant but that the pay would be comparable to that of an LPN.” Based upon these statements, she enrolled at Delta the next day. In addition, she got a student loan for $3,064.00. After completing seven months of the eight or nine-month program, she dropped out because she discovered she was studying to be a nurse’s aide. Wood further testified that the training for nursing assistants and LPNs is quite different: Nursing assistants learn to make beds, empty bed pans, and take vital signs; LPNs learn to assist in surgery and give medication and injections.

Although McCray denied that he told Wood “they are phasing out LPNs in the State of Arkansas, so the nursing assistants will be taking the place of the LPNs,” he acknowledged an awareness of the issue by stating that “the question that keeps coming up, whether or not LPN’s are being phased out, I’ve heard before.” Maxine Ottey, Director of Nursing Practice with the Arkansas Board of Nursing, testified that “a nursing assistant certainly cannot and does not take the place of an LPN.”

EXCLUSION OF EVIDENCE

The appellants contend that the trial court erred in excluding nursing magazine and journal articles concerning a debate in the nursing profession on phasing out the existing levels of entry into nursing practice (Registered Nurse, Licensed Practical Nurse, and nurse’s aide) and replacing them with two levels of entry into practice: professional nurse, which would contain persons entitled Registered Nurse, and technical nurse, which would contain persons entitled associate nurse or registered associate nurse. These articles were tendered at the close of the trial for the limited purpose of “showing the credibility” of Wood, “that the statements she relied on may have come from others and not Delta Career College.” After an exchange with appellants’ and appellee’s counsel, the court refused to admit the articles into evidence, stating in part that “the authenticity of a statement he never stated would not seem to be relevant.”

The appellants apparently have abándoned their “credibility” argument made to the trial court as they now contend on appeal that by excluding these relevant articles, the trial court denied them the opportunity to present their theory of the case that the representations were true and that McCray did not know the representations were false.

As enunciated in Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), see also McWilliams v. Zedlitz, 294 Ark. 336, 742 S.W.2d 929 (1988), the essential elements of an action for deceit are as follows:

(1) a false, material representation (ordinarily of fact) made by the defendant;
(2) scienter — knowledge by the defendant that the representation is false, or an assertion of fact which he does not know to be true;
(3) an intention that the plaintiff should act on such representation;
(4) justifiable reliance by the plaintiff on the representation; and
(5) damage to the plaintiff resulting from such reliance.

Contrary to the assumption made by appellants’ counsel, the articles in question contain nothing showing that the representations made by McCray were true. They merely show that there is a debate in the nursing profession concerning phasing out the existing levels of entry — professional and technical nurses. Furthermore, the theory of appellants’ case at trial was not, as they now allege on appeal, that the representations were true or that McCray believed them to be true, but rather that he did not make the representations. In fact, his testimony at trial (as well as in a pre-trial deposition) indicates he did not know whether LPNs are being phased out in Arkansas or what the future is for LPNs.

The admissibility of evidence is a matter within the sound discretion of the trial court. Missouri Pacific R.R. v. Mackey, 297 Ark. 137, 760 S.W.2d 59 (1988). Under the circumstances, we find no abuse of discretion by the trial court in excluding the articles.

EXPRESSIONS OF OPINION/PREDICTIONS OF FUTURE EVENTS

The appellants argue that the representations in question were expressions of opinion and predictions of future events, not representations of fact, and therefore not actionable. We disagree.

In general, an expression of opinion, i.e., a statement concerning a matter not susceptible of accurate knowledge, cannot furnish the basis for a cause of action for deceit or fraud. Grendell, supra. See also Vickers v. Gifford-Hill & Co., Inc., 534 F.2d 1311 (8th Cir. 1976); St.Paul Fire and Marine Insurance Co. v. Hundley, 354 F. Supp. 655 (E.D. Ark. 1973); Ryan v. Batchelor, 95 Ark. 375, 129 S.W. 787 (1910). However, an expression of opinion that is false and known to be false at the time it is made is actionable. Horn v. Ray E. Friedman & Co., 776 F.2d 777 (8th Cir. 1985). The general rule only applies where the person expressing his or her opinion does so in good faith. Anthony v. First National Bank of Magnolia, 244 Ark. 1015, 431 S.W.2d 267 (1968).

In Grendell, supra, we held that statements by the defendant that an oil investment was a “good thing” and would “make money” and that the wells would pump “fifty barrels a day” were in the nature of puffing and constituted mere expressions of opinion. In Cannaday v. Cossey, 228 Ark. 1119, 312 S.W.2d 442 (1958), we held that a statement by a vendor that he had a “good house” was also a statement of opinion.

In the case at bar, the statements made by McCray to Wood that “they are phasing out the LPNs in the State of Arkansas, so the nursing assistants will be taking the place of the LPNs” and that “she would not get rich as a nursing assistant but that the pay would compare to that of an LPN” were representations of fact, not expressions of opinion. Unlike the loose general statements made by sellers in commending their products which we found to be expressions of opinion in Grendell and Cannaday, the statements made by McCray were specific and definite.

Even if McCray’s statements were construed to be expressions of opinion, it does not automatically follow, as appellants erroneously assume, that such expressions cannot form the basis of a cause of action for fraud or deceit. It is clear from Anthony and Horn that expressions of opinion which are false and known to be false when made are actionable. From the testimony and other evidence presented at trial, the jury reasonably could have concluded that the statements made by McCray were false and that he knew them to be false at the time he made them.

Appellants’ contention that the statements made by McCray were predictions of future events is also without merit.

In general, an action for fraud or deceit may not be predicated on representations relating solely to future events. See Anthony, supra; Lawrence v. Mahoney, 145 Ark. 310, 225 S.W. 340 (1920); Harriage v. Daley, 121 Ark. 33, 180 S.W. 333 (1915); Conoway v. Newman, 91 Ark. 324, 121 S.W. 353 (1909). However, the general rule is inapplicable if the person making the representation or prediction knows it to be false at the time it js made. See Anthony, supra; Greenwood v. Dittmer, 596 F. Supp. 235 (W.D. Ark. 1984). See also Victor Broadcasting Co., Inc. v. Mahurin, 236 Ark. 196, 365 S.W.2d 265 (1963).

The statements in question were not predictions of future events, but statements of existing situation. Moreover, even if the statements were considered to be predictions, the appellants would still be liable if McCray believed them to be false when he made them to Wood. See Anthony, supra; Greenwood, supra. Again, in light of the testimony and other evidence presented at trial, the jury reasonably could have concluded that McCray knew the statements were false at the time he made them.

JURY INSTRUCTIONS

The appellants assert that one of the trial court’s instructions to the jury was erroneous in that the instruction omitted an essential element of the tort of deceit. We do not reach this issue.

Prior to trial, defendant-appellants submitted, among other instructions, an instruction on deceit (noted as defendants’ requested instruction # 11). At the conclusion of trial, the trial judge instructed the jury on deceit, apparently utilizing the submitted instruction. However, in reading the instruction to the jury, the trial court omitted one of the essential elements of deceit (scienter) contained in the submitted instruction. Neither party objected to the instruction as read by the trial court.

No party may assign as error on appeal “the giving or failure to give an instruction unless he objects thereto beforé or at the time the instruction is given, stating distinctly the manner to which he objects and the grounds of his objection.” Ark. R. Civ. P. 51. See also Hill Construction Co. v. Bragg, 291 Ark. 386, 725 S.W.2d 538 (1987); Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984). Since appellants voiced no objection when the instruction was given to the jury, they cannot now complain.

MOTION IN LIMINE

Finally, the appellants contend that the trial court erred in denying their motion in limine. We disagree.

Before trial, the appellants filed the following motion in limine:

Comes now the Defendants, Delta Career College, et al., by their attorneys, Wood Law Firm, and move the Court to restrict and prohibit testimony of witnesses of Plaintiff which is not contemporaneous or occurring prior in time to the allegation of Plaintiff and which purports to confirm statements made by Delta Career College by any of its officers, directors, agents, or employees, more particularly described as: “The LPN program is being phased out and nursing assistants will be taking their place.” The presentation of such testimony would be extremely prejudicial to the Defendants.

The trial court denied their motion with the understanding that the questioned testimony would be admissible under certain circumstances, depending on how the proof developed.

Thereafter, Kristie Woody, who was an instructor at Delta from May of 1986 to June of 1987, testified that while she was teaching at Delta, she heard McCray tell students that “they would be phasing out LPNs and there would be RNs and nursing assistants in hospitals.” Gladys Adair, who was in the same class as Wood, testified that when she applied for admission to Delta, Kathy McCray, Steve McCray’s wife and an employee of Delta, told her “that they are phasing out the LPN program and, as nursing assistants, we will be taking their place.” Joetta Flowers, also a classmate of Wood, testified that after classes had started, a female representative of Delta informed her that “they were phasing out LPNs, that the nursing assistant would take the place of an LPN, and that we would be making the same rate of pay of an LPN.” Debbie Oliver, who worked as an admissions representative for Delta from October 1986 until May of 1987, testified that Steve McCray told her that “LPNs were to be phased out and nursing assistants were taking over.” The appellants did not object to any of this testimony.

We have held that where a motion in limine is made to specific evidence and denied, no further objection is necessary to preserve the issue for appeal. See Schichtl v. Slack, 293 Ark. 281, 737 S.W.2d 628 (1987). However, this rule should not apply where, as in the case at bar, the judge does not make a final or determinative ruling on the motion in limine but, rather, conditions the admissibility of the evidence on “how the proof develops.” By failing to object at trial to the testimony in question, the appellants cannot now raise this issue on appeal.

Affirmed.

769 S.W.2d 738

MAY 1, 1989

Rose Law Firm, A Professional Association, by; Tim Boe and Jess Askew III, for petitioner.

Everett Martindale, for respondent.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Jack Holt, Jr., Chief Justice.

On rehearing, appellants contend that we erred in holding that they waived their right to challenge the jury instruction on deceit because they did not object to the instruction at the time it was being read to the jury by the trial court. We adhere to our position that appellants’ failure to object resulted in a waiver. However, we do wish to clarify our holding.

In our original opinion we stated that no party may assign as error on appeal “the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the manner to which he objects and the grounds of his objection,” quoting the language of Ark. R. Civ. P. 51. In utilizing Rule 51 as a basis for our decision, we do not intend to imply that the appellants were barred from challenging the failure to instruct on this issue because they did not object at the time the instruction was read to the jury. (Emphasis added.)

To the contrary, had the appellants objected to the giving of this instruction by the trial court before the case was submitted to the jury, such objection would have been sufficient to preserve the issue on appeal. It is well settled that failure to object to the giving of an erroneous jury instruction before the case is submitted to the jury is a waiver of any error committed by the court in giving it. Tinsley v. Cross Development Co., 277 Ark. 306, 642 S.W.2d 286 (1982); Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967).

The record does not reveal that the appellant objected to the court’s giving of this particular instruction to the jury at any time during the course of the proceedings. This issue is raised for the first time on appeal. Accordingly, they are in no position to challenge the instruction as given by the trial court.

Petition denied.

Glaze, J., concurs.

Tom Glaze, Justice, concurring.

I agree the appellants’ petition for rehearing should be denied, but I would add that the instruction proffered by the appellants was insufficient and incorrect. In Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986), the court set forth the five elements required to constitute the tort of deceit, and in setting out element two, we adopted a rule which requires “knowledge or belief on the part of the defendant that the representation is false or that he has not a sufficient basis of information to make it.'’’’ (Emphasis added.) See also AMI Civil 3d, 405. Appellants’ proffered instruction in this cause omitted the foregoing, emphasized language. This omission, in my view, was a vital one, especially when considering the evidence that this court, in pertinent part, reviewed and recited in its majority opinion. Regardless of whether appellants had made a timely objection to the instruction given by the trial court, they simply failed to proffer a correct instruction in its stead — a duty required of them in order to prevail on this point on appeal.

       Attention is directed to Ark. Sup. Ct. R. 9(d), which provides in pertinent part that “ [t] he appellant’s abstract or abridgment of the records should consist of an impartial condensation, without comments or emphasis, of only such material parts of the pleadings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” The appellants’ abstract of the exchange between counsel and the trial court concerning the articles is incomplete and biased. First of all, material portions of appellants’ counsel’s statements concerning the purpose for which he was proffering the articles and significant parts of the trial court’s ruling on the admissibility of the articles are omitted. Secondly, the statement in the abstract that “Mr. Woods proffered evidence tending to show that the alleged representation was in fact true ... ,” is a biased factual conclusion which is unsupported by the record.

       In Grendell v. Kiehl, 291 Ark. 228, 723 S.W.2d 830 (1987), this element was worded as follows: [SJcienter — knowledge by the defendant that the representation was false, or an assertion of fact which he does not know to be true.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    Bobby R. DEPOYSTER v. Lamar COLE, Executive Director, Arkansas Activities Association; Leon Wigginton, President, Arkansas Activities Association, d/b/a Executive Committee of Arkansas Activities Association
    88-182
    766 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989

      Rose Law Firm, A Professional Association, by: David L. Williams and B. Michael Bennett, for appellant.

      McMillan, Turner & McCorkle, by: Ed McCorkle, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from the trial court’s determination that certain voting methods employed by the Executive Committee of the Arkansas Activities Association (“AAA”) did not violate the Arkansas Freedom of Information Act, Ark. Code Ann. §§ 25-19-101 — 25-19-107 (Supp. 1987). Also at issue is the court’s refusal to grant appellant Bobby Depoyster a new trial. We reverse and remand.

The AAA is an organization of approximately 500 public and private secondary schools in this state and is responsible for the administration of the rules and regulations governing interscholastic athletic competitions among member schools. Appellee Lamar Cole is the executive director of the AAA; appellee Leon Wigginton is the president. The executive committee of the AAA is the association’s governing body at all times when the overall governing body composed of the member schools is not in session. The executive committee is made up of sixteen principals and superintendents from eight districts around the state.

On January 20,1988, the executive committee met to select the sites for 22 regional and state basketball tournaments for the B, A, AA, and other classifications from bids which had been submitted by those schools interested in hosting a tournament. The tournaments were to begin on February 29, 1988.

Notice of the January 20 meeting was given to member schools and to the press. Principals, superintendents, and members of the public were present at the meeting. Appellant Bobby Depoyster, superintendent of the Newark School District, an AAA member, did not attend.

At the meeting, members of the executive committee discussed and voted for the various tournament locations. In those cases where only two bids had been received for a particular site, the vote was by a show of hands. In cases where more than two bids had been received, the vote was by unsigned written ballot. As to those votes, each member was asked to record his choices on a slip of paper — the sites to be listed in preferential order. The votes were then somehow tallied on a blackboard in view of those in attendance at the meeting. The slips of paper were discarded.

Thirteen sites were selected by show of hands; nine sites required written ballots due to the number of bids received. At the time of the meeting, no objection was made by anyone present as to the site selections or the manner in which the sites were voted upon.

Following the January 20 meeting, appellant Depoyster contacted the AAA on several occasions objecting that the voting method violated the FOIA in that utilization of unsigned written ballots amounted to the use of secret ballots contrary to the spirit and intent of the Act. He also claimed destruction of the ballots violated the Act. Upon filing an FOIA request, Depoyster was furnished with the January 20 vote results.

Subsequently, Depoyster brought suit seeking: (1) a declaratory judgment that the actions of the executive committee had violated the FOIA; (2) an injunction to prevent the AAA from taking similar actions in the future; and (3) costs and attorney’s fees. In response, the AAA maintained that its general procedure on other matters was to use written mail-out ballots which were signed and retained. Since the January 20 meeting was a public meeting, it was deemed sufficient to vote by a show of hands — with the exception that for those sites reflecting multiple bids written ballots were considered a more objective method of determining tournament sites. No thought had been given to signing the ballots or retaining them.

The trial court determined that there had been no violation of the FOIA. Depoyster moved for a new trial, and the AAA responded by affidavit that on March 24, 1988, the executive committee voted unanimously that all written ballots would in the future be signed and would be retained for a period of one year. In denying Depoyster’s motion for a new trial, the court found that the balloting method employed on January 20 was not intended to and had not prevented public inquiry or examination of the results of the committee’s actions.

The FOIA was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved. Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W.2d 350 (1975); Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). The issue before us, simply put, is whether the trial court correctly concluded that the executive committee of the AAA did not violate the Arkansas Freedom of Information Act when it used unsigned written ballots which were disposed of in a manner making their review impossible.

It was conceded at trial, and on appeal, that the AAA is subject to the provisions of the FOIA as an organization in this state supported “wholly or in part by public funds or expending public funds.” See Ark. Code Ann. § 25-19-103(2) (1987). See e.g., North Central Assn. of Colleges and Schools v. Troutt Bros., Inc., 261 Ark. 378, 548 S.W.2d 825 (1977). A review of the provisions of the FOIA makes clear that neither the use of unsigned written slips as ballots nor the failure of the AAA to retain voting records can be condoned and that the actions of the executive committee clearly violated the overall intent of the Act, if not specific sections. Ark. Code Ann. § 25-19-102 (1987) provides:

It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this chapter is adopted, making it possible for them, or their representatives to learn and to report fully the activities of their public officials. [Emphasis ours.]

Looking about us, we readily see that the decisions of this court, as well as those of the legislature, city council, and other governmental agencies are all made public to the extent of each individual’s vote. There can be no doubt that the use of unsigned written slips as ballots which are not retained as part of an organization’s records does little to assist the public in being advised as to the performance of the organization’s members or the decisions reached by those individuals. Obviously, it makes it impossible, rather than possible, for concerned citizens or their representatives to learn and report fully the activities of the officials of such organizations. Section 25-19-102, supra.

To bring about the intent and purpose of the FOIA, section 25-19-106(a) provides that, as.to those organizations subject to its provisions, all meetings, formal or informal, special or regular, shall be public meetings except as otherwise specifically provided by law. While the January 20 meeting was no doubt open to the public, the balloting method employed was such that there was no way to determine which member of the executive committee voted for any particular site. It would be sheer speculation on our part to suggest or assume that the defect could have been remedied in that those in attendance at the meeting were in a position to inquire as to each member’s vote. We have no idea whether such inquiry would have been permitted or, if permitted, whether any responses would have been forthcoming. In short, the voting should have been handled in such a way that the public was, or could have been, advised of the performance of the individual members of the AAA’s executive committee.

Moreover, section 25-19-103(1) of the FOIA requires that all writings or data compilations in any form, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by any agency supporteo by public funds, “shall be public records”. The recorded votes of individual members of the executive committee of the AAA obviously constitute a record of the performance or lack of performance of official functions carried out by the AAA, and there was testimony that it was the general practice of the AAA to retain mail-out ballots used in voting on matters coming before the AAA. The vote slips at issue, being records generally or otherwise kept by the AAA, therefore constituted public records which should have been retained.

Finally, those records must be open to inspection and copying by any citizen of this state, except as otherwise specifically provided in the FOIA. Section 25-19-105(a). See e.g., Arkansas Highway & Transp. Dep’t. v. Hope Brick Works, Inc., 294 Ark. 490, 744 S.W.2d 711 (1988). As the ballot slips were not retained it would have been impossible for those not in attendance to have determined a committee member’s vote even if the ballots had been signed. Section 25-19-105(a) envisions that public records will be retained and made available for all citizens to examine.

While we find nothing in the record to suggest it was the intent of the executive committee to operate in a clandestine manner by making use of “secret” ballots or that the ballots were destroyed in order to prevent their review, this does not alter our conclusion that the balloting method employed at the January 20 meeting prevented the public from determining the performance of the AAA’s executive committee and thus violated the FOIA. Accordingly, the judgment of the trial court is reversed and remanded with directions to enter a declaratory judgment that the appellee executive committee’s use of unsigned written ballots which were not retained as part of the AAA’s records violated the FOIA. In light of evidence of record that the executive committee has voted that all future ballots would be signed and retained, we find it unnecessary at this juncture to address Depoyster’s claim for injunctive relief as to future conduct on the part of the executive committee.

Depoyster claims that this case is proper for the invalidation remedy suggested in Rehab Hospital Services Corp. v. Delta-Hills Health Systems Agency, Inc., 285 Ark. 397, 687 S.W.2d 840 (1985). We disagree. Furthermore, our disposition of the issues on appeal makes it unnecessary for us to address the trial court’s refusal to grant a new trial.

Depoyster also maintains that he is entitled to an award of attorney’s fees and costs. Ark. Code Ann. § 25-19-107(d) (Supp. 1987) provides that in any action to enforce the rights granted under the FOIA, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed “unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these expenses unjust.” (Emphasis ours.)

Notwithstanding that we are reversing the trial court’s judgment, we find that the circumstances surrounding the January 20 vote would make an award of attorney’s fees and costs unjust. In a well-reasoned article, one authority discusses the FOIA provision for litigation expenses and states in part:

[T]he court “shall assess” attorney’s fees and other costs against a defendant in an FOIA case if the plaintiff has “substantially prevailed,” unless the court finds that the defendant’s position was “substantially justified” or that other circumstances would make such an award unjust. The court need not, therefore, make a fee award in every FOIA case; indeed, the purpose of the fee-shifting provision is to assess fees and costs where public officials have acted arbitrarily or in bad faith in withholding records.

[Emphasis ours.]

Watkins, Recent Developments Under the Arkansas Freedom of Information Act, 1987 Ark. L. Notes 59, 64.

We do not imply by this opinion that an award of litigation expenses under the FOIA will always be defeated in the absence of arbitrary or bad faith conduct on the part of the defendant. However, we do find that test decisive under the circumstances of this case.

Public notice of the January 20 meeting was given to member schools and to the press, and the voting was conducted in public. As to most of the site selections, the vote was by a show of hands. Those votes involving written ballots were tallied on a blackboard subject to inspection by anyone in attendance at the meeting. Upon request, the AAA furnished appellant Depoyster with whatever records it had as to the vote totals. Only a few months after the meeting, the AAA took measures to guarantee that in the future all written ballots would be signed and retained. In sum, the circumstances do not suggest either arbitrary or bad faith conduct.

While we recognize the salutary purposes underlying the FOIA and its sanctions, the facts before us simply do not warrant an award of fees and costs.

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissent in part.

Tom Glaze, Justice,

dissenting in part. While I agree with the majority that the appellees’ use of unsigned and unretained written ballots violated the FOIA, I disagree with the court’s first-time interpretation of the Act’s provision that provides for attorney fees and costs. That statutory provision, Ark. Code Ann. § 25-19-107(d) (Supp. 1987), provides as follows:

(d) In any action to enforce the rights granted by this chapter, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified or that other circumstances make an award of these ex penses unjust. However, no expenses shall be assessed against the State of Arkansas or any of its agencies or departments. If the defendant has substantially prevailed in the action, the court may assess expenses against the plaintiff only upon a finding that the action was initiated primarily for frivolous or dilatory purposes. (Emphasis added.)

Here, the appellant has prevailed on appeal, so the appellant clearly has met the first prong set forth in the law above — he substantially prevailed in his suit to enforce a right granted under FOIA. The only issue left, then, is whether the appellees’ position was substantially justified or other circumstances make an award of attorney fees or costs unjust. I believe that the appellees’ actions were unquestionably contrary to the terms and spirit of the FOIA and that appellant is entitled to an award of fees and costs.

In denying attorney fees and costs, the majority, relying on language contained in an article by a University of Arkansas Law School associate professor, concludes that the circumstances in this case do not suggest either arbitrary or bad faith conduct on the appellees’ part. See Watkins, Recent Developments Under the Arkansas Freedom of Information Act, 1987 Ark. L. Notes 59, 64. From my reading of the article relied upon by the majority, I find nothing to support the “arbitrary or bad faith conduct” test that this court now wishes to impose. The article, itself, suggests the purpose of the Act’s attorney fee provision is to assess fees and costs where public officials have acted “arbitrarily or in bad faith” in withholding records, but the author cites no legal authority for such a proposition. In my opinion, such a bad faith test is far too restrictive to apply to an Act that is to be liberally construed. If this court decides to engraft a “bad faith” requirement onto the FOIA as a prerequisite for an award of attorney fees, I fear such awards will be as rare as the dodo bird.

Language similar to that employed in Arkansas’s FOIA attorney fee provision can be found in certain federal acts which have been construed in some federal court cases. The case of Natchez Coca-Cola Bottling Co., Inc. v. N.L.R.B., 750 F.2d 1350 (5th Cir. 1985), concerned the Equal Access to Justice Act which provided that a party shall receive attorney fees and other expenses “unless the adjudicative officer of the agency finds that the position of the agency as a party... was substantially justified or that special circumstances make an award unjust.” In its opinion, the court recognized the rule that the government bore the burden of proving that the General Counsel’s action had a reasonable basis in both law and fact. In applying that rule, the court held that the General Counsel was substantially justified in its action and that attorney fees were precluded. In Fenster v. Brown, 617 F.2d 740 (D.C. Cir. 1979), the court addressed the federal FOI provision which states that a court may assess attorney fees and litigation costs “in any case ... in which the complainant has substantially prevailed.” The circuit court mentioned the following four criteria to consider in deciding whether an attorney fee award should be made:

(1) the benefit to the public, if any, derived from the case;
(2) the commercial benefit to the complainant;
(3) the nature of the complainant’s interest in the records sought; and
(4) whether the government’s withholding of the records had a reasonable basis in law.

These federal cases, of course, do not control the attorney fee issue before us, but in a limited way we might find some guidance. For example, if a reasonable legal basis exists for a public official’s having violated the FOIA, a court would be correct in awarding no fee or costs because the official was “substantially justified” in his or her actions. In my opinion, this “reasonable legal basis” position should, at the very least, be the threshold requirement in refusing or awarding attorney’s fees in FOIA cases. In other words, if a public official has no reasonable legal basis upon which he or she denies access to public meetings or records that are held or kept pursuant to the terms of the FOIA, then the courts should award attorney fees and costs. Whether other circumstances may exist that would cause such an award to be unjust would necessarily be determined upon a case-by-case basis.

The FOIA attorney fee and costs provision serves to encourage a person to file suit when a violation of that Act occurs. In this respect, the provision ensures the enforcement of the Act’s requirements, and, indirectly, fosters compliance with the Act, as well. While I can and will presume the appellees are well intentioned in the instant case, they have offered no valid justifications — legal bases — for having violated the FOIA. In fact, the appellant has brought to this court’s attention that the Arkansas Attorney General’s office previously had issued opinions to certain officials concerning the use of ballots and indicating such ballots must be signed and retained subject to inspection under the FOIA. See Ark. Op. Att’y Gen. File No. 149-A Op. No. 74-72 (May 23,1974); Ark. Op. Att’y Gen. File No. 149-A (Nov. 22,1971). Apparently appellees were unaware of these opinions and had failed to request advice on this matter from either the Attorney General or other legal counsel.

Appellees did, however, prevail at the trial level which does, in my view, present a circumstance in favor of their argument that no award of attorney fees is justified in this cause. Of course, a trial court’s decision favoring a public official’s action under the FOIA is certainly one circumstance for this court to consider when deciding if attorney fees or costs should be awarded, but that factor alone is not, and should not be, binding. When I review the facts and law of this case, I believe the majority’s decision to deny attorney fees in this case is wrong.

The trial court clearly was wrong in holding the appellees did not violate the FOIA because they did not intend to prevent public inquiry or examination of the results of the AAA Committee’s actions. None of this court’s prior decisions can be read to suggest a person or official must intentionally violate the FOIA before a complaint, seeking to enforce the Act, can prevail. In Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968), this court considered the penal provision contained in the FOIA and held very clearly that such a provision does not make the entire Act penal. The court in Laman was emphatic in stating that it had no hesitation in asserting its conviction that the FOIA was passed wholly in the public interest and is to be liberally interpreted to the end that the Act’s praiseworthy purposes may be achieved. The court added that the language of the Act is so clear, so positive, that there is hardly any need for interpretation. Id. at 405, 432 S.W.2d at 755. That, surely, is the situation at bar.

Here, appellant brought suit seeking declaratory relief that the appellees’ actions had violated the FOIA, but, in order to obtain such relief, he was required to appeal, having received an adverse decision below. Appellees did — much to their credit — vote to sign and retain written ballots at future meetings. However, as noted above, that action was not taken until after trial. The parties reached no settlement of their differences, and no court order was entered below so as to reflect the appellees’ intent to comply with the FOIA in the future. Under such circumstances, the appellees were free to follow the same practice in casting unsigned ballots in future meetings even though I am sure they would have met their pledge not to do so in the future. In any event, an appeal was required in order to resolve the respective parties’ dispute as to whether appellees’ actions violated the FOIA.

In sum, the present case is the first for this court to construe the Act’s new attorney fees and costs provision, but before reaching the attorney fee issue, the court held that the FOIA may be violated even though a person or public official never actually intended to do so. Situations will exist — including situations where the Act was not intentionally violated — when attorney fees and costs will be justified and this court should not adopt a test that requires a showing of bad faith before such awards can be granted. Such a test is not called for under the terms of the FOIA, and this court’s requirement of bad faith is too restrictive and will serve only to prevent the Act’s enforcement.

I also disagree with the majority’s decision not to address the appellee’s injunctive request. This court declines to reach the injunction issue because, after the trial below, the executive committee voted that all future ballots would be signed and retained. Appellant says his request is still viable based on the appellees’ past illegal decision. Of course, appellant is correct to the extent that while the appellees apparently voted not to violate the FOIA in the future, that vote or decision was never stipulated or made a part of any court order; to the contrary, appellant was required to pursue his right of appeal in order to obtain a holding that appellees had violated the FOIA.

In my view, appellant is certainly entitled to have this court reach the issue of whether he is entitled to injunctive relief. This request, however, would be unavailing, because, in my opinion, the circuit court simply has no power to issue an injunction. See, Cummings v. Fingers, 296 Ark. 276, 280-281 n.2, 753 S.W.2d 865, 868 n.2 (1988); Id. at 281, 753 S.W.2d at 868 (Newbern, J., concurring). I believe the appellant is entitled to a decision on this issue now. Certainly, our decision, one way or the other, would serve to eliminate future confusion on this subject.

Hickman and Hays, JJ., join this dissent.

       These four criteria were reported in Senate Report 19, reprinted in Legislative History 171.


author: John I. Purtle, Justice. Tom Glaze, Justice,

text:
    Ricky SCOTT v. STATE of Arkansas
    CR 89-17
    766 S.W.2d 428
    Supreme Court of Arkansas
    Opinion delivered March 13, 1989

      Ronald C. Wilson, for appellant.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of DWI in the Wynne, Arkansas municipal court. He then appealed the conviction to the circuit court for Cross County. The circuit court jury found him guilty, and the court sentenced him to six months in jail and assessed a one thousand dollar fine. The only issue that we need consider is whether the appellant gave a voluntary and intelligent waiver of his right to trial counsel. The record does not disclose that he waived this right. Consequently the conviction is reversed and the case is remanded to the circuit court.

The record is silent so far as the appellant’s waiver of the right to counsel is concerned. In resolving this issue, we will first examine our own precedents and then turn to a consideration of decisions of the U.S. Supreme Court and the federal Circuit Courts of Appeals. We consider this same subject in Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). There we stated:

The right to counsel... is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at the trial. Johnson v. Zerbst, 304 U.S. 458 (1938); Barnes v. State, [258 Ark. 565, 528 S.W.2d 370 (1975)]. [H]owever, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971).

Discussing the waiver of fundamental constitutional rights in Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988), we quoted from Carnley v. Cochran, 369 U.S. 506 (1962), as follows:

Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not a waiver.

Whether there has been an intelligent waiver of the right to counsel depends upon the facts in each case. The burden is upon the state to show that an accused voluntarily and intelligently waived this fundamental right. In Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988), we held that “the state did not meet its burden of showing an intelligent and voluntary waiver by Bowden of his right to counsel.” The issue of a knowing and intelligent waiver of the right to counsel has been discussed by this court many times. In Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987), we stated:

Mr. Costillo was not represented by counsel at his trial and there is no showing that he knowingly and intelligently waived this right. The state concedes error. We agree. Accordingly, the decision of the Rule 37 trial court must be reversed and the case remanded for a new trial on the merits.

The United States Court of Appeals for the Eighth Circuit has expressly set forth rules to be followed in determining whether the Sixth Amendment right to counsel has been waived. In Tollett v. United States, 444 F.2d 622 (8th Cir. 1971), the court stated:

The law is clear that the sixth amendment guarantee of the right to counsel in a federal criminal trial can only be waived after a careful explanation of the defendant’s rights by the court and an intelligent exercise of the choice by the defendant. We must indulge every reasonable presumption against the waiver, and we cannot presume acquiescence in the loss of fundamental rights.

A very recent federal decision which arose in Arkansas is that of Meyer v. Sargent, 854 F.2d 1110 (8th Cir. 1988), wherein the court stated that “a specific warning on the record of the dangers and disadvantages of self-representation is not an absolute necessity in every case if the record shows that the defendant had this required knowledge from other sources.” (Emphasis added.) The Meyer opinion continued:

Our holding, that a specific on the record warning of the dangers and disadvantages of self-representation is not an absolute necessity in every case for a valid waiver of counsel, should in no way be interpreted as any indication that we disfavor such a policy. Exactly the opposite is true. At best, requiring appellate courts to search through voluminous records for evidence of knowledge of this type is a time-consuming effort and a waste of judicial resources not because it is a frivolous inquiry, but because it could be avoided with a relatively short and simple colloquy on the record. . . . Thus, we are hopeful that all,courts will voluntarily pursue this practice and that government prosecutors will see the benefit in encouraging courts with other practices to change them.

Meyer makes it quite clear that in the Eighth Circuit the recommended practice is that the courts make a relatively short and simple record concerning the waiver of the right to counsel. Other Circuit Courts of Appeals decisions have held that a waiver may not be presumed from a silent record. See Piankhy v. Cuyler, 703 F.2d 728 (3rd Cir. 1983); and United States v. Edwards, 716 F.2d 822 (11th Cir. 1983).

The United States Supreme Court discussed waiver of the right to counsel in Patterson v. Illinois, _U.S. _, 108 S.Ct. 2389 (1988). That opinion stated that “[t]he constitutional minimum for determining whether a waiver was ‘knowing and intelligent’ is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel.” Patterson reemphasized the holding in Miranda that a proper warning, prior to waiver of rights, is necessary before the police may question an accused. The opinion cited Johnson v. Zerbst, supra, and also relied on the holding in Faretta v. California, 422 U.S. 806 (1975), which approved the right of an accused to waive his Sixth Amendment right to counsel and represent himself. Faretta requires that a defendant “be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ”

The record in this appeal is completely silent on waiver of counsel. There is no recorded specific warning of the dangers and disadvantages of self-representation. Moreover, there is no record showing that the defendant possessed such required knowledge from other sources. In view of the fact that the trial court did not make a record on the appellant’s waiver of counsel, the case is remanded for a new trial.

Reversed and remanded.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. This case troubles me because, according to appellant’s testimony, he appeared before the trial court one week prior to trial (January 11, 1988) and asked for an attorney. If the appellant made such an appearance, the record before us fails to reveal it. The circuit clerk’s and court reporter’s certificates reflect we have the full record. In addition, the Attorney General’s office has not requested remand of this cause so the record can be settled. As a consequence, we can only speculate that a hearing was held on January 11, 1988, and that the trial court may have considered appellant’s request for an attorney. Of course, if such a hearing occurred, the trial court, at the same time it considered appellant’s request, may have warned the appellant concerning his rights and the advantages and disadvantages of proceeding pro se. Nevertheless, since the state does not question the record, I presume this court has all of it. That being the case, I join in the decision reached by the majority.